We have discussed this issue elsewhere on this website.
Of course, the leading case is the 2008 Supreme Court of Canada decision in B.D. vs. G. The court set out four factors:
- Is there a reasonable excuse for the delay in bringing the application for retroactive support?
- What was the conduct of the payor parent?
- What are the circumstances of the children?
- Will there be any hardship associated with the retroactive award?
In the interesting recent decision in McBean of the Alberta Queen’s Bench, a husband whose income had apparently risen dramatically was able to escape paying, what appeared to be a claim of more than a million dollars in retroactive child support.
The children at the time of the application were adults but were still dependent children and as such met the definition of children of the marriage under the Divorce Act. The wife lost.
She waited too long. The court looked at many different factors including the affluent lifestyles that all enjoyed.
In this legal mine field, nothing is simple and the courts need to weigh many counter balancing interests.
The main theme for all of this is, do not delay in pursuing child support when you believe the payor’s income has increased. If you delay it may very well be at your own jeopardy.