Sarah Boulby | Download as PDF

Five years ago in D.B.S. v. S.R.G. and its sister cases, the Supreme Court of Canada tackled the question of whether courts could grant retrospective child support awards and when they should do so.2 Before this decision lower courts had taken divergent approaches to the problem of claims to rectify inadequate or excessive retroactive child support. Mr. Justice Bastarache carried a majority of the Court with his reasons which draw a  comprehensive road map to adjudicating retroactive child support claims. This paper addresses the interpretation of Bastarache J.’s road map and its implementation in lower courts across Canada over the last five years on one point, the role of blameworthy conduct. With few exceptions, lower courts have been able to follow the road map in exercising their discretion on these applications giving clear direction to counsel and parents of what to expect.

D.B.S. v. S.R.G.– The Framing of the Test

Bastarache J. found that courts have the jurisdiction to make retroactive child support orders and that the exercise of that jurisdiction is discretionary. The majority decision steers between an approach that privileges certainty of past practice, that being the view that courts should not reach back to interfere with past failures to pay support or orders or agreements that provide inadequate amounts of support, and an approach that privileges certainty of result, that being the view that all child support arrangements should be retroactively regularized to conform with the Child Support Guidelines without regard to the particular circumstances. The majority of the Court recognized that retroactive awards may cause hardship to the payor parent and may not benefit the child. This recognition underlies the decision to provide courts discretion in whether or not to impose retroactive awards. Bastarache J. did not take a restrictive approach to the granting of retroactive awards, to the contrary, his reasons state:

Lest I be interpreted as discouraging retroactive awards, I also want to emphasize that they need not be seen as exceptional. It cannot only be exceptional that children are returned the support they were rightly due. Retroactive awards may result in unpredictability, but this unpredictability is often justified by the fact that the payor parent chose to bring that unpredictability upon him/herself. A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amounts of support first arose.3

Having set a discretionary framework for the adjudication of retroactive awards, Bastarache J. elaborated the factors that a court should consider in such applications. These are four in number: (1) has the recipient parent advanced a reasonable excuse for why support was not sought earlier? (2) does the payor parent’s conduct militate for or against a retroactive award? (3) what are the present and past circumstances of the child (4) will a retroactive award impose hardship on the payor parent?4

Of these four factors, this paper considers how lower courts have applied the second factor in decisions since D.B.S. was rendered. This paper’s title refers to “blameworthy conduct” which is a phrase drawn from the reasons of Bastarache J.. The scope of conduct identified in the majority decision is much broader than blameworthy conduct, however, expressly including positive as well as negative behaviour. There are certainly payors who have met their financial obligations to their children in ways other than by meeting the monthly table amount obligation and that conduct may militate against a retroactive award.5 An example is Baldwin v. Funston, where the payor made special provisions for the children beyond the requirements of the parties’ separation agreement.6 To be taken into account, however, such payments must have satisfied the type of expenses that fall within the category of ordinary ones that table support is designed to cover. Payments of extraordinary expenses that would fall within the category of s. 7 expenses cannot logically be relied on as good conduct capable of avoiding an obligation to pay retroactive table amounts, see Swiderski v. Dussault.7

Bastarache J. provides considerable guidance in elucidating what the Court means by “blameworthy conduct.” The reasons state:

…courts should take an expansive view of what constitutes blameworthy conduct in this context. I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support.8

Blameworthy conduct includes sins of omission as well as those of commission, Bastarache J. holds:

No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct…9

Examples of blameworthy conduct are: a payor hiding income increases from the recipient parent, intimidating a recipient parent to dissuade that parent from bringing an application for support, or misleading a recipient parent into believing that the support obligations being met when (s)he knows that they are not.10

The above examples all have an element of intent to them. A passive failure to increase child support payments as income increases may be insufficient to constitute blameworthy conduct. Bastarache J.’s reasons go so far as to posit that: “…whether a payor parent is engaging in blameworthy conduct is a subjective question.” Bastarache J. then qualifies this “subjective” standard by introducing an objective element to the assessment of intent. He states:

…I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy. For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct. In this context, a court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent’s believe that his/her obligations were being met. Equally, where applicable, a court should consider the previous court order or agreement that the payor parent was following. Because the order (and usually the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order. However, this presumption may be rebutted where a change in circumstances is shown to sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay.11

The finding of blameworthy conduct, or its absence, is not definitive in any one case. Bastarache J. quite clearly states that no one factor is decisive and that the court should exercise its discretion in determining the question based on a “holistic” view of each case. Bastarache J. noted expressly that retroactive support could be ordered even in the absence of any blameworthy conduct by the payor parent.12

Applying the D.B.S. Test

Lower courts have understood and accepted the necessity of taking a holistic view of all the factors relevant to the propriety of a retroactive award. All the factors are to be considered together and it is not essential that each factor be made out in each case.13 It is possible for there to be a retroactive award even where there is no finding of blameworthy conduct but the other factors support such an award.14 There are also cases in which no retroactive award is made despite a finding of blameworthy conduct.15

Breaches of court orders and failure to make financial disclosure are straightforward examples of blameworthy conduct. In McGowan v. Connelly, a breach of a court order and findings of contempt constituted blameworthy conduct.16 Failure to make full financial disclosure, to cooperate or even participate in the trial was found to be blameworthy conduct in Delaney v. Delaney.17 Failure to disclose income increases coupled with a failure to pay a cost of living increase provided under a separation agreement was found to be blameworthy conduct in Rondelet v. Neff.18 A failure to disclose income has been found to be blameworthy conduct on numerous occasions.19 In Crane v. Crane, the court found that the payor’s withholding of support after separation because of dissatisfaction with access arrangements is blameworthy.20

In D.B.S. and its sister cases, the Supreme Court of Canada addressed squarely the question of whether compliance with an existing order or agreement protects a payor from a later retroactive child support order. Bastarache J. approached the question as one of reasonableness. Was the payor parent acting reasonably in failing to pay the Guideline amount of child support owing? If a payor is in compliance with a pre‐existing order or agreement then (s)he can be presumed to have been acting reasonably but that presumption may be rebutted where a change in circumstances is sufficiently obvious as to make continued reliance on the existing order or agreement unreasonable. With rare exception, this objective standard has been applied widely by lower courts to impose retroactive awards.

For example:
In Negus v. Negus, the court held that a dramatic change in the payor parent’s financial circumstances meant that the payor could not have reasonably held the belief that he did not owe more support under the Guidelines.21

In Athwal v. Athwal, the court held that Mr. Athwal’s reliance on a court order was not reasonable as his income tripled from the date of the initial order. Continuing to pay child support well below the Guidelines after substantial increases in income is blameworthy conduct.22

In Rumble v. Hamilton, the payor disclosed his Notices of Assessment showing substantially increased income from approximately $20,000/year to $80,000/year but continued to pay child support at the lower amount. The court held that failure to increase the amount was blameworthy conduct, the trial judge states: “…it should have been apparent to Mr. Rumble that there was a large discrepancy between what he had been paying and that which he should have been paying. It cannot be said that Mr. Rumble had a reasonable belief that he was meeting his child support obligations.23

In Marsh v. Jashewski, the court found that the payor’s failure to advise his former spouse that his income had “skyrocketed” was blameworthy conduct as it was unreasonable to rely on an existing order after a dramatic increase in income.24

In Carlaw v. Carlaw, the court found that delay by a payor in providing personal and corporate financial information after his income increased 250% was blameworthy conduct.25

These cases all point to the limited protection a payor receives from simply complying with an existing order or agreement in those cases where the payor has had a significant income increase. Bastarache J.’s standard for blameworthy conduct is stated as a subjective standard but the measure of it involves a consideration of reasonableness. Whether the payor’s conduct is blameworthy depends ultimately on whether he or she acted reasonably in the belief that there was no need to increase child support voluntarily or make disclosure of a significant improvement in income. This standard of reasonableness introduces an objective element into the test.

Earlier this year a Saskatchewan trial court took a very different approach to the question in Tochor v. Kerr.26 Sandomirsky J. provides a lengthy analysis of what constitutes blameworthy conduct where a payor relies on a record of compliance with a pre‐existing court order. In Tochor v. Kerr, the payor parent’s income had increased by $12‐15,000/year, an increase of approximately 25%. The payor had not disclosed this increase to the recipient. Sandomirsky J. suggests that Bastarache J.’s definition of blameworthy conduct as behaviour privileging the payor parent’s own interests over the child’s right to an appropriate amount of support is “too broad.”27 Sandomirsky J. notes quite correctly that the payor in the case at bar was not under an express legislative obligation to make specific financial disclosure.28 Sandomirsky J. quotes some of the specific examples cited by Bastarache J. of blameworthy conduct in D.B.S.: “…a parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments…A payor parent cannot intimidate a recipient parent in order to dissuade him/her from bringing an application for child support…And a payor parent cannot mislead a recipient parent into believing that his/her child support obligations are being met when (s)he knows that they are not.”29 These are the most obvious categories of such conduct as all involve apparent deception or bullying. Sandomirsky J. sets these examples as defining the nature and scope of blameworthy conduct.

The quotation of D.B.S. in Tochor does not include the next paragraph of the reasons in D.B.S. in which Bastarache J. states: “Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if(s)he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct.”30 Nor does Sandomirsky J. review or discuss the objective standard of reasonableness which Bastarache J. asserts in the following passage.

In Tochor, the court found no blameworthy conduct by the payor parent and also after considering the other factors found the children had suffered no hardship and that the recipient parent had not advanced a good reason to explain delay. In consideration of all those factors, no retroactive support was awarded.

In Bierman v. Bierman (2011) CarswellSask 211 (Sask.Q.B.) the same judge, Sandomirsky J., returns to the question of what constitutes blameworthy conduct. In Bierman, Sandomirsky J. acknowledges that a payor parent who had complied fully with a pre‐existing order but fails to disclose a substantial increase in income may have engaged in blameworthy conduct. In Bierman the payor father’s income increased over the amount declared in the original order by a six figure amount. Sandomirsky J. made findings that the father was an intelligent man who knew his income had increased after the trial but “He was content to leave a sleeping dog lie.” Sandomirsky J. further found that the father must have realized that to disclose his income would result in an increased obligation to pay child support. These findings appear to be exactly the type of circumstances in which Bastarache J. in D.B.S. held that the presumption that a payor is acting reasonably in complying with an order should be rebutted.31 Despite this, Sandomirsky J. found no blameworthy conduct in this case.32 This decision does appear to be out of step with D.B.S. and the approach that other lower courts have taken to applying D.B.S..

I have taken some time to discuss Torchor v. Kerr and Bierman v. Bierman because this line of decisions has received a great deal of attention in the bar including a commentary by Philip Epstein in which Mr. Epstein commends Tochor while noting that its analysis differs from the decision of Justice Jollimore in Carlaw v. Carlaw, described above.33 That it certainly does and the outcome in Tochor v. Kerr and Bierman v. Bierman also depart from the many other cases in which lower courts have dealt with this issue. The analysis in Tochor v. Kerr and Bierman v. Bierman should be approached with caution. Practicing lawyers have a tendency to favour certainty over other factors because it makes giving advice to clients so much easier but the Supreme Court of Canada chose a middle ground on retroactive support. In D.B.S., the Court could have imposed very clear and certain rules in either direction. The Court could have found that reliance on a pre‐existing order or agreement is a complete defence to a retroactive award but the Court refrained from doing that, imposing only a presumption rebuttable on an objective standard of reasonableness. On the other hand, the Court could have provided an automatic adjustment of child support on a retroactive basis in precise accordance with the Guidelines. That approach is reflected in the minority reasons of Abella J. but was rejected by the majority of the Court. The standard that Bastarache J. and the majority of the Court chose is a balanced one that so far, on the whole, courts have been able to apply. If there is an emerging certainty in the case law it is this: if a payor has a significant increase in income a failure to adjust child support will be found to be blameworthy conduct. In such a case it will be very hard to make out a defence that the payor had a reasonable belief that (s)he was meeting the child support obligation. A finding of blameworthy conduct is not sufficient to ensure the imposition of a retroactive award as there are, of course, other factors but such conduct will go a long way to making out such a claim.

The Supreme Court of Canada most recently commented on the D.B.S. principles in the decision in Kerr v. Baranow.34 In this case one of the parties advanced a claim for retroactive spousal support. Cromwell J. writing for the Court reviewed the D.B.S. principles and found that they could also be applicable to spousal support with modifications to reflect the conceptual differences between child and spousal support. The differences identified by the Court are revealing. Cromwell J. observes that a payor parent is or should be aware of the obligation to provide child support commensurate with income. Consequently there are greater concerns about lack of notice, delay or the presence of misconduct in spousal support where there is no presumptive right to the support. This commentary relates to a spousal support decision so it is no more than obiter dicta on the question of child support but it is suggestive of the Court’s expectations of what is a reasonable belief about child support obligations.35

The new legislative amendments which require annual financial disclosure on the anniversary of all support orders and agreements, subject to an opt out clause, may over time reduce the number of retroactive child support cases36. If parties comply with disclosure then there may well be fewer cases in which large shortfalls build up between what is owing and what is paid. Claimants will be provided income information as they go and are more likely to pursue it before the amounts owing become unmanageable. Payors who have to disclose their income information thereby turning their minds to the problem will be more likely to simply pay up. For those payors who do not comply with these standard provisions, the finding of blameworthy conduct will become very clear, as the financial disclosure failure will in most cases also be a breach of a court order or agreement.

In summary, conduct is but one factor relevant to the exercise of a court’s discretion as to whether to make a retroactive support award. It includes not only obviously “bad” conduct such as misleading or bullying the claimant or breaching court orders but also failure to pay child support at all or in the correct Guideline amount without a reasonable belief that the payor is meeting his/her child support obligations. That belief will be scrutinized to an objective standard. A significant shortfall between what was paid and what is owing may well support a finding of blameworthy conduct. While it is presumptively reasonable to rely on a court order or agreement, that protection is lost if there is a change of circumstances so pronounced that reliance on the old order or agreement is no longer objectively reasonable. The D.B.S. test has provided a broad definition of blameworthy conduct construed to an objective standard of reasonableness. It is a workable test which lower courts have been applying with a great deal of consistency across Canada.

  1. This paper was first delivered for Osgoode Professional Development CLE
  2. D.B.S. v. S.R.G., L.J.W. v. T.A.R., Henry v. Henry, Heimstra v. Heimstra 2006 Carswell SCC 37
  3. D.B.S., supra, at 34
  4. D.B.S., supra, at 35‐37
  5. D.B.S., supra, at 36
  6. Baldwin v. Funston 2007 CarswellOnt 3168 (Ont.C.A.)
  7. Swiderski v. Dussault (2009) CarswellBC 2848 (B.C.C.A.) at 8 and 10
  8. D.B.S., supra, at 36
  9. D.B.S., supra, at 36
  10. D.B.S., supra, at 36
  11. D.B.S., supra, at 36
  12. D.B.S., supra, at 34
  13. P.(S.) v. P.(R.) 2011 CarswellOnt 2839 (Ont.C.A.) at 8
  14. Apostal v. Raine 2011 CarswellAlta 289 (Alta.Q.B.)
  15. Baldwin v. Funston, supra, and Motiram v. Latchman 2009 CarswellOnt 2632 (Ont.S.C.)
  16. McGouran v. Connelly 2007 CarswellOnt 5291 (Ont.C.A.) also see G.(B.D.) v. G.(C.C.) 2007 CarswellBC 2211 (B.C.S.C.)
  17. Delaney v. Delaney 2009 CarswellNS 573 (N.S.S.C.)
  18. Rondelet v. Neff2011 CarswellOnt 3084 (O.C.J.) This case has an excellent and detailed review of the relevant principles.
  19. DeGear v. DeGear2011 CarswellBC 251 (B.C.S.C.) and Peters v. Power 2010 CarswellNfld 413 (Nfld.S.C.) are two examples.
  20. Crane v. Crane 2008 CarswellNS 60 (N.S.S.C.)
  21. Negus. v. Negus 2011 CarswellBC 1258 (B.C.S.C.)
  22. Athwal v. Athwal (2007) CarswellBC 338 (B.C.S.C.)
  23. Rumble v. Hamilton 2011 CarswellOnt 4970 (O.C.J.) at 5
  24. Marsh v. Jashewski 2011 CarswellOnt 6196 (Ont.S.C.)
  25. Carlaw v. Carlaw 2009 CarswellNS 887 (N.S.S.C.)
  26. Tochor v. Kerr 2011 CarswellSask (Q.B.)
  27. Tochor v. Kerr, supra at 8
  28. Tochor v. Kerr, supra at 4
  29. Tochor v. Kerr, supra at 27, citing D.B.S., supra at 36
  30. D.B.S., supra, at 36
  31. D.B.S., supra, at 36
  32. Bierman, supra at 7
  33. Epstein’s “This Week in Family Law: 2011‐18”, Westlaw
  34. Kerr v. Baranow 2011 CarswellBC 240 (S.C.C.)
  35. Cromwell J. states: “Child support is the right of the child, not of the parent seeking support on the child’s behalf, and the basic amount of child support under the Divorce Act… (as well as many provincial child support statutes) now depends on the income of the payor and not on a highly discretionary balancing of means and needs. These aspects of child support reduce somewhat the strength of concerns about lack of notice and lack of diligence in seeking child support. With respect to notice, the payor parent is or should be aware of the obligation to provide support commensurate with his or her income….In contrast there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support…” Kerr v. Baranow, supra, at 53
  36. Ontario Child Support Guidelines O.Reg. 391/97, as am., s. 24.1 and s. 25.1