On February 13, 2006, the Supreme Court of Canada heard arguments about whether child support should be varied retroactively when the support recipient has delayed requesting an increase in child support. The case has even garnered international attention.

The issue has previously been dealt with by Courts of Appeal in Ontario, Alberta and British Columbia. The 3 courts have come to different conclusions. The Supreme Court will be resolving this conflict between the lower courts.

I’ve previously discussed the awarding of retroactive child support in Ontario.

Under the statutory scheme, support recipients have the right to request support payors’ income information on an annual basis. This would normally be done around May, after a person has completed and filed their income tax return. Based on this updated information, the support recipient can request a variation of child support.

As a practical matter, the language from the statutory scheme regarding annual requests for income information and for annual variations of child support is incorporated in separation agreements as standard practice. As well, many final court orders also include this language. This helps ensure that both parents are aware of their financial and legal obligations in this regards.

The issue is that often support recipients wait several years to make the request for financial disclosure. If variations of child support can be made retroactive for many years prior to the request for varying child support, the amount of arrears can be staggering. In one case, the amount totaled around $100,000.

Frankly, I believe that the statutory scheme is quite clear and easy for support recipients to follow. Support payors shouldn’t be penalized simply because the support recipients don’t follow the statutory scheme. All that the support recipient must do is annually mail the payor (preferably with proof of posting) a letter requesting the payor’s updated income information.

If the payor does not comply with this request, the payor will run into trouble for breaching the Guidelines by failing to provide financial disclosure, and get hit with retroactive child support as a result. If the payor does comply, and the payor’s income has increased, the recipient can preserve their right to an increase in child support simply by mailing a letter to the support recipient making a request for the increase.

A lot has been made of the fact that support recipients often do not have the financial or emotional resources to request more child support. It’s no doubt true that legal proceeding are expensive and emotionally draining. Litigation is certainly not something that should be entered into lightly. But it is fairly easy under the current statutory scheme to preserve your rights without starting litigation simply by creating a proper paper trail until you are ready to litigate (and it’s a lot cheaper than litigating all the way to the Supreme Court of Canada).

Some critics of the current statutory scheme state that a further step should be added to it — namely, annual adjustments to child support. Annual adjustments can be cost prohibitive. The reality is that determining a person’s income for child support purposes is often not straightforward. Entire chapters of family law texts are devoted to this subject. I think that the drafters of the Guidelines were wise to require that the parties exchange all the information that they need to determine whether child support should be adjusted, but to leave the final decision as to whether an adjustment should be made in the parties’ hands.

As well, the issues involved in this appeal have been cast as an issue of wealthy male payors shafting helpless female payees. But the reality is that the law cuts both ways. Many times in my practice, I’ve seen men, due to tough economic times, take lower paying jobs, and continue to pay the same amount of child support as they did at their previous higher paying jobs. Or, they have been unemployed for a few months, and not had the financial resources to request a reduction of support while they were unemployed. And in one case of mine, a father waited for 3 years after a child died to request a reduction in child support due to this. The mother took the position that there could be no reduction prior to the date of the father’s request, and that she should pocket the extra child support paid for the last 3 years.

Update: This case has received further international attention.