The Supreme Court of Canada articulated the test for retroactive child support in D.B.S. v. S.G.R., 2006 SCC 37. Since then, the nuances of retroactive child support (such as when should it be ordered, for what period, and in what quantum) continue to be the subject of interpretation and commentary. The Ontario Court of Appeal added to the analysis in Rosenberg v. Gold, 2016 ONCA 565, a case in which one of the parties asserted that D.B.S. established a “deemed blameworthy conduct” threshold in law in any case where a parent fails to make appropriate and timely adjustments to his or her child support payments following receipt of an increased income. The Court of Appeal rejected that assertion, emphasizing that at all times a court should strive for a holistic view of the matter and decide each retroactive child support claim on the basis of its particular factual matrix.

General rule for start date of retroactive child support

Where retroactive child support is awarded, it should generally be back-dated to when the recipient parent gave the payor parent effective notice of his or her intention to seek an increase in support payments, but to no more than three years in the past; this date represents a fair balance between certainty and flexibility. However, where the payor parent has engaged in blameworthy conduct, the date that circumstances changed materially will be the presumptive start date of the award.

The claim for retroactive child support in Rosenberg v. Gold

The appellant, Lorna Gold, and the respondent, David Rosenberg, separated in January 2010 after an approximately 15-year marriage. They had three teenage children. In October 2010 the respondent’s employment as a lawyer was terminated and he received a severance package equivalent to 11 months’ salary in lieu of notice. After 19 months he found employment as in-house counsel with a similar company, at first on a six-month contract basis, then as a permanent employee at a higher salary.

The claim for retroactive child support applied to the period between October 2012 (when the respondent obtained fulltime employment at a higher salary) and the date of trial. The evidence at trial indicated that in that period, the respondent was paying child support based on the Guideline amount for a 6-month contract salary of $87,000, when he should have been paying a higher amount based on his permanent employee salary of $215,000 plus bonus.

Failure to disclose material change in circumstances

At paragraph 124 of D.B.S. Bastarache J. stated that not disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of child support payable — is itself blameworthy conduct. The appellant in Rosenberg v. Gold contended that Bastarache J.’s statement from D.B.S. established a “deemed blameworthy conduct” threshold in law in any case where a parent fails to make appropriate and timely adjustments to his or her child support payments following receipt of increased income, and submitted that the respondent had clearly failed to do just that here.

Court of Appeal rejects “deemed blameworthy conduct” for retroactive child support orders

The trial judge’s dismissal of the claim for retroactive child support was upheld by the Court of Appeal, with Blair J.A. rejecting “deemed blameworthiness” as a principle of law:

[68]      First, I do not read D.B.S. as establishing any such “deemed blameworthiness at law” principle. The Supreme Court of Canada made clear that blameworthy conduct on the part of a payor spouse is an important factor in the retroactive support analysis, that what is “blameworthy” conduct is to be considered in an expansive fashion, and that a payor parent who knowingly diminishes his or her child support (including a failure to make reasonable upward adjustments in support where warranted) should not be allowed to profit from such conduct: paras. 105-107. However, a failure to increase support automatically does not necessarily amount to blameworthy conduct, which requires some form of conscious choice to ignore parental support obligations: paras. 107-108.

Blair J.A. affirmed that in all retroactive child support cases, conduct must be considered in a holistic fashion, looking at the whole picture:

[69]      Whether conduct is “blameworthy” is a question of fact or at least of mixed fact and law. It is a subjective question, informed by certain objective indicators: D.B.S., at para. 108. Here, the trial judge made no finding that the respondent had engaged in any blameworthy conduct. Indeed, he found that the respondent had “acted reasonably in his efforts to support his children” and had “made no attempt to defeat [his] obligations to look after the family”. These findings are not consistent with blameworthy conduct and are entitled to deference. Even accepting that the respondent failed to fulfill his obligations by not being more alert to increasing his support payment commensurate with his increasing income, there were other factors in play which the trial judge took into account, as outlined above. In addition, the residential situation respecting the children was somewhat fluid during these periods.

In Rosenberg v. Gold, when the respondent’s child support payments over the period from October 2012 to the date of trial were considered in a “holistic” fashion, it was apparent that the respondent was not in a position of deficient obligations in relation to child support during the time in question. There was a shortfall for a few of the months, but balanced against that shortfall was the fact that during 2014 the respondent over-fulfilled his child support obligations because the monthly amount he was paying was premised on two children living with their mother and one with the respondent, whereas the reality was the reverse, and neither party saw fit to seek a change in that arrangement. In addition, while there were the customary dueling motions for disclosure by both parties during the relevant time, there was no evidence that the respondent was in default of any of his disclosure obligations.

Take home point on retroactive child support orders

When analyzing a claim for retroactive child support, the court must consider all four factors established in D.B.S.: reasonable excuse for the delay in bringing the application, the conduct of the payor parent, the circumstances of the child, and the hardship occasioned by a retroactive award. None of these factors is decisive and there is no legal concept of “deemed blameworthy conduct”. In all cases, the court must strive for a holistic view of the matter and decide each claim for retroactive child support on the basis of its particular factual matrix.