Susan E. Milne

The Supreme Court of Canada considered four appeals regarding retroactive child support.

The Court held that parents have a free-standing obligation to support their children commensurate with their income, and courts have the jurisdiction to order retroactive child support under both the Divorce Act and provincial legislation.

In determining whether to make a retroactive award, courts must balance the payor parent's interest in certainty with fairness to the child by considering the reason for the recipient parent's delay, the payor parent's conduct, the child's past and present circumstances, and potential hardship.

The Court allowed the appeals in D.B.S. and T.A.R., restoring the chambers judges' decisions to deny retroactive support, and dismissed the appeals in Henry and Hiemstra, affirming the retroactive support awards.

The father applied to reduce his child support payments after the child began spending 50 percent of the time with him.

The Supreme Court of Canada established the proper approach to calculating child support under section 9 of the Federal Child Support Guidelines for shared custody arrangements.

The Court held that there is no presumption in favour of the Guidelines amount or a simple set-off.

Instead, courts must take a contextual approach, considering the Table amounts, the increased costs of shared custody, and the conditions, means, needs, and other circumstances of each spouse and the child.

The father was ordered to pay $500 per month.