07 November 2017

Blameworthy Conduct in the Extreme – When retroactive child support can be ordered for more than three years

by Karen Redmond

A.J.D. v. C.D. 2017 BCSC 1559

In this decision of the BCSC released September 1, 2017 the wife applied for retroactive child support for 12 years, dating back to the signing of the separation agreement in 2003.  The separation agreement did not provide for annual exchange of financial information or annual updates of child support.  Both children had lived with their mother and the father had stated his income as $90,000 and provided misleading information about his income at the time of signing of the agreement.  He continued to pay child support based on the income information in the separation agreement.  The mother was not aware that the child support could be reviewed annually and took no steps to apply for disclosure of income information from the husband until he unilaterally reduced his child support in 2015 when the oldest child turned 19.  His income had increased significantly between 2003 and 2015 ranging from $105,551 to $772,127. 

The court found the husband’s conduct blameworthy in the extreme, citing the leading case D.B.S. v. S.R.G., 2006 SCC 37 [D.B.S.] and the exceptions to the principles outlined in D.B.S.  Although the Court in D.B.S. said that it would usually be inappropriate to delve too far into the past, to award child support retroactively for more than three years, the court said there are circumstances where the payor’s conduct does warrant such awards.  In the A.J.D. case Madam Justice Young ordered retroactive child support for 12 years for a total payment owing by the husband of $522,408 taking into account the circumstances of the children, their financial need and the present financial situation of the husband and the wife.