Family Law Principles that we can learn from Thompson v. Thompson 2013 ONSC 5500 (Retroactive Support Claims)

In the case of Thompson v. Thompson, the Ontario Court of Appeal provided critical insight into the principles governing retroactive child support claims.

These claims pertain to support for periods predating the commencement date of the legal pleading in which support is claimed. The court expounded upon the Supreme Court of Canada's position on these matters, as laid out in the case D.B.S. v. S.R.G.; L.J.W. v. T.A.R; Henry v. Henry; Hiemstra v. Hiemstra..

Among the fundamental principles that apply to all child support claims, as highlighted by the court, the following stand out:

• Child support is the right of the child. This right arises upon the child’s birth and exists independent of any statute or court order. It does not cease to exist even after the breakdown of the parents’ relationship.

• The purpose of child support is, as much as possible, to provide children with the same standard of living they enjoyed when their parents were together. The amount of child support owed will vary depending upon the income of the payor parent.

• The provincial power to regulate child support matters in contexts not involving divorce remains unfettered. Accordingly, when retroactive child support is sought, the court must analyze the statutory scheme in which the application is brought.

• The child support analysis must never lose sight of the fact that child support is the right of the child. As such, the child should not be left to suffer if one or both parents fail to monitor child support payments vigilantly.

• The ultimate aim in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it. Any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.

• The specific amounts of child support owed will vary based upon the income of the payor parent. As income levels increase or decrease, so will the parents’ contributions to the needs of the child.

The court concluded in D.B.S. that retroactive child support claims can be advanced despite the absence of a reference to retroactive relief in the Act, provided that the child support obligation existed during the period encompassed by the retroactive claim. The court considered various factors including the child’s and custodial parent’s need for financial support, the need for flexibility to ensure a just result, and the competing needs of ensuring certainty and predictability when obligations appear to be settled.

The court adopted a highly discretionary approach to retroactive child support claims, outlining several general factors that should be considered in such cases:

• Whether there was a reasonable excuse for why the claimant did not pursue child support or increased child support earlier.

• The conduct of the payor parent. "Blameworthy conduct" was defined as any action that privileges the payor parent’s own interests over his/her child’s right to an appropriate amount of support. The court emphasized that a payor cannot simply hide their income increases from the recipient parent in the hopes of avoiding larger child support payments.

• Consideration of the present circumstances of the child.

• Any hardship that may be occasioned by a retroactive order.

In addition, the court established general principles regarding the appropriate effective date for retroactive relief. It held that a retroactive child support order should generally commence as of the date of effective notice that a request is being made for child support or an adjustment to child support. It further held that, in most cases, it would be inappropriate to make a support award retroactive to a date more than three years before the date when formal legal notice was given to the payor parent.

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