Retroactivity

NOTE - our Supreme Court of Canada, our highest court in Canada, has clarified the law about retroactive child support and made other important policy statements.

By a full unanimous decision stated at the hearing on 14 November 2019, with written reasons 18 September 2020, the Court confirmed that child support is a common law right of the child which should not be limited except by clear, express legislation. That the right to support including retroactive support arises upon birth not because of any legislation nor upon the start of a Claim. Further, that the 2006 decision known as DBS was only interpreting the Divorce Act not any Provincial law, and law should not be a jurisdictional bar to the child's right.

Any concern about delay by the recipient to make a claim is reduced by the fact that the payor is avoiding their known responsibility to pay support as Child Support Guidelines calculate. Wrong doing by the payor should not be encouraged nor rewarded by allowing them to escape a debt owed. Wrong doing is defined as including "...anything that privileges the payor parent's own interests over their children's right...."

NOTE - FLA retroactive child support is not barred because the child is now an adult, and the arrears can be paid to child and or the parent. DBS factors must be used to determine fairness.