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Current Event… The Supreme Court decides in favour of retroactive payment of child support

The Supreme Court of Canada recently rendered a long-awaited judgment in which it examined the question of whether a parent can ask for retroactive payment of child support.

The highest court in the country concluded that a judge can allow such a request after taking into account certain factors, but only for a maximum retroactive period of three years. Since this judgment is based on Alberta law, it needs to be examined in light of the law applicable here in Quebec.

In the text that follows, Éducaloi summarizes the Supreme Court’s decision and explains its impact on parents who have separated in Quebec.

What does the Supreme Court’s judgment say?

The Supreme Court first discusses the key principles underlying parents’ support obligations towards their children. The Court states that a child has the right to support; this right continues to exist after the parents separate. As much as possible, the support must allow the child to have the same standard of living that he had before his parents separated. Support is calculated on the basis of the income earned by the payor parent (the one who pays).

Since these principles focus on the payor parent’s income, the Court concludes that under the federal method of calculating child support, a payor parent who does not increase the amount of support when his income increases can be considered to have failed in his obligation to support his child.

The Court thus decides to allow the other parent to request retroactive child support or a retroactive increase in child support if the payor parent does not change the amount of support on his own or if he hinders the other parent’s request.

To what extent does this judgment apply in Quebec?

This judgment applies to support calculated under the federal method of calculating child support. In practical terms, this judgment applies only to Quebec parents:


Other Quebec parents are subject to the Québec model for the determination of child support payments.

Another important nuance needs to be made with respect to the application of this judgment: under Quebec law, a parent can ask for retroactive child support from the other parent for a maximum period of one year. The Supreme Court’s decision which mentions a three year period does not change this one year period.

The Supreme Court’s decision is very recent and its impact in Quebec is still unclear. However, the Supreme Court’s decisions are always given considerable weight. As such, it is possible that the courts or the legislators in Quebec may decide to be inspired by it. This remains to be seen.

What is the maximum period during which it is possible to ask for retroactive child support or a retroactive increase in child support?

The Supreme Court has set the maximum period of retroactivity at three years. However, as mentioned above, in Quebec, this period cannot be more than one year.

This period is calculated from a different starting point depending on the payor parent’s behaviour. If the payor parent informs the other parent about the increase in his income, the maximum period generally starts as soon as the recipient parent (the one who receives the support for the child) asks him for child support or an increase in child support.

On the other hand, the Court considers a payor parent who hides the increase in income from the other parent to have engaged in “blameworthy conduct”. In such cases, the period of retroactivity is calculated starting from the date of the increase in income. The Court considers it to be “blameworthy conduct” to place one’s own interests before those of one’s children. For example, when a parent hides financial information from the other parent or hinders a reasonable request for the payment of child support or for an increase in child support.

Will retroactive payment of child support be automatically granted as soon as the payor parent’s income increases?

No. The Supreme Court leaves it up to courts of first instance  (http://www.educaloi.qc.ca/en/cotecour/quebec_judicial_system/#b3) to decide if retroactive child support needs to paid to one of the parents. These courts must consider many factors, including the nature of the increase in income (is it small? moderate? large?) and the payor parent’s ability to pay in light of his circumstances. Just because a parent’s salary increases does not mean that he is able to pay more. For example, a parent may be unable to pay more because he had another child with his new spouse.

Asking for retroactive support means that a certain amount of time has passed since the income increased. The court of first instance could examine the reasons why the recipient parent waited to ask for a change in the amount of child support. The court will distinguish the cases where a parent could not ask (for example, because she was not aware that the other parent’s income increased) and the cases where a parent knew about the increase in income but waited to ask for an increase in child support without any valid reason.

Does this mean that the parent who pays child support must provide financial information (such as income statements) to his ex-spouse?

No. The Supreme Court does not go this far. It leaves it up to the courts of first instance to decide this question. However, it reminds courts of first instance that even if the law does not require payor parents to provide financial information to the other parent, these courts can impose this obligation in their judgments.

To find out more:

The federal method of calculating child support  (http://www.educaloi.qc.ca/en/loi/parents/150/)

To learn about the legal aspects of a separation: http://www.educaloi.qc.ca/en/abonport/  (http://www.educaloi.qc.ca/en/abonport/)

Click here  (http://csc.lexum.umontreal.ca/en/2006/2006scc37/2006scc37.html) to read the judgment.