nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 534 Date: 2006 12 14 Docket: D.I.V. 331/99 Judicial Centre: Regina, Family Law Division BETWEEN: KIMBERLY SUZANE SMITH (formerly GOETHALS) and JEFFREY MAURICE GOETHALS Counsel: Terence G. Graf, Q.C. for the petitioner W. Timothy Stodalka for the respondent JUDGMENT SANDOMIRSKY J. December 14, 2006 HISTORICAL REVIEW [1] The respondent applies to vary the child support orders of Mr. Justice Kraus dated September 10, 1999, and December 7, 1999, and/or the alleged agreement struck by the petitioner and respondent in or about July, 2003. The respondent seeks this variation pursuant to s. 17(1) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) and also pursuant to s. 10 of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2. In addition to variation of the amount of child support, the respondent asks that the variation order apply retroactively to July 1, 2003. Finally, the respondent seeks costs to be assessed on solicitor/client basis. This application to vary is opposed in many, but not all, respects by the petitioner. [2] The petitioner and respondent consented to the order of Kraus J. dated September 10, 1999. At that point in time the petitioner and respondent were sharing the custody and care of both of their children, Meghan Elizabeth Goethals, born July 4, 1988, and Ryan Nicholas Goethals, born April 17, 1991. The children resided an equal amount of time with each party. Having agreed upon the division of the Canada Child Tax Benefit and GST quarterly rebate, the manner in which income credits (equivalent to spousal deduction) and the respondent having accepted exclusive responsibility for Ryan’s child care costs and other extraordinary expenses, the petitioner and respondent agreed that despite the petitioner having an annual income of $21,000.00 and the respondent having an annual income of $47,000.00, no interim basic Table child maintenance would be paid as between the parties. The respondent agreed to pay to the petitioner $250.00 per month as his share of Meghan’s special and/or extraordinary costs. [3] The consent order of Kraus J. dated November 25, 1999, varied the earlier consent order of September 10, 1999, when the respondent became unemployed and received employment insurance only. It was agreed that each of the petitioner and the respondent each had equal incomes of $21,000.00 and that as consequence of their equal sharing of parental care, neither the petitioner nor the respondent would pay basic nor special/extraordinary child support to the other. [4] The third consent order of Kraus J., dated December 7, 1999, arose as consequence of pre-trial conference conducted that day. The previous two consent orders were agreed to become permanent rather than interim orders. [5] On July 4, 2000, the parties were divorced. [6] fourth consent order was granted on July 6, 2001, and was captioned as an “Order Amended Pursuant to Q.B. Rule 343A”. This order amended the earlier shared custody and parenting regime upon which the previous orders were based. The primary residence of both children changed to be with the respondent. The petitioner was provided reasonable access only. The petitioner’s annual Federal Child Support Guidelines [SOR/97-175, as am.] (the “Guidelines”) income was agreed to be $25,000.00 and she was therefore ordered to pay to the respondent child support for both children in the amount of $375.00 per month, commencing August 1, 2001. [7] The petitioner appealed this fourth order, dated July 6, 2001, to the Saskatchewan Court of Appeal. The Court of Appeal rendered judgment on November 16, 2001, remitting the following issues back to the Court of Queen’s Bench (a) Should the consent order of Kraus, J. dated December 7, 1999, be varied? and; (b) If there is no variation, for determination how to access specified in the order of Kraus, J. shall be specifically exercised. The Court of Appeal restored the order of Kraus J. dated September 10, 1999, pending the further determination of those issues by the Court of Queen’s Bench. [8] review of the transcript of the oral reasons of the Court of Appeal stated the panel of judges were unanimous in granting the petitioner’s appeal. The transcript reads, nan In our opinion, the trial judge failed to properly consider the issue of access and the underlying reasons for the appellant being unable to exercise the access specified in the consent order of December 7, 1999. [3] The order of Kraus J. dated September 10, 1999 is hereby restored pending the determination of the issues by the Court of Queen’s Bench. [9] Without further explanation or evidence, the court record is silent until the present application for variation was filed. The court assumes that the petitioner and respondent continued to equally share the responsibility of caring for Meghan and Ryan pursuant to the order of Kraus J. dated December 10, 1999, for the ensuing years of 2002 and 2003. No rehearing occurred pursuant to the Court of Appeal judgment. The Court of Appeal had in part found no material change of circumstance had occurred triggering the application to vary at Queen’s Bench. [10] In or about the month of May, 2003, the respondent and both children chose to move to the province of Manitoba thereby ending the shared parenting regime. This clearly represents material change of circumstance (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27). Rather than returning to the court to assess and determine the petitioner’s responsibility to pay child support to the respondent, the parties negotiated through their lawyers corresponding, as well as the petitioner and respondent personally discussing the child support issue. It is based upon this dialogue that the respondent today alleges an agreement was struck, whereas the petitioner denies such an agreement. An examination of the correspondence exchanged between counsel on the following dates was, therefore, undertaken: 1) MacLean Keith (for the respondent) to Ms. Duncan (for the petitioner), June 4, 2003; 2) Ms. Duncan to MacLean Keith, July 2, 2003; 3) MacLean Keith to Ms. Duncan, July 14, 2003, with draft consent order unexecuted enclosed; 4) Ms. Duncan to MacLean Keith, September 11, 2003; and 5) MacLean Keith to the petitioner, July 18, 2006. [11] To summarize the essential and relevant components of each of the above letters, find the following material facts: 1) On June 4, 2003, the respondent requested child support be paid by the petitioner in the sum of $460.00 per month per the Guideline Tables. The respondent refused the petitioner’s suggestion that the said Table amount be reduced due to the alleged hardship of excessive access costs claimed by the petitioner. 2) On July 2, 2003, Ms. Duncan wrote indicating the petitioner and respondent had agreed between themselves the following: (a) They shall continue to have joint custody of the children; (b) Ms. Smith shall have reasonable access; (c) Ms. Smith shall pay child support to Mr. Goethals in the sum of $380.00 per month commencing July 1, 2003. Ms. Smith will be sending Mr. Goethals cheque in this amount tomorrow. Mr. Goethals has agreed to accept less than the Guideline amount given Ms. Smith’s cost in exercising access. Consequently Ms. Smith will bear all of the costs of exercising access; (d) The Heritage Scholarship Trust accounts will be equally divided. Each parent will hold one half in trust for the post secondary education requirements of the children. Meghan’s account number is: 7008554 and Ryan’s is 7390629. 3) On July 14, 2003, MacLean Keith replied to Ms. Duncan enclosing draft consent order for consideration. The respondent acknowledged his acceptance of the sum of $380.00 per month as child support to be paid by the petitioner. This represented reduction of $80.00 from the Table amount to offset access costs between Saskatchewan and Manitoba. However, the respondent asserted such payment would have to be effective June 1, 2003, and not July 1, 2003, as the petitioner had proposed. The respondent also introduced into the draft order clause providing that the petitioner provide copy of her annual tax return and notice of assessment by June 30, 2004, and each June 30 thereafter to monitor whether child support should be adjusted. 4) On September 11, 2003, Ms. Duncan replied to MacLean Keith disagreeing that the proposed child support of $380.00 per month commence June 1, 2003, as opposed to July 1, 2003. She asserted that the petitioner and respondent verbally agreed to start date of July 1, 2003. In the second paragraph of her letter Ms. Duncan states: Therefore, we are prepared to execute Consent Order on the basis that the child support commencement date would be July 1, 2003. We suggest that the Order contain provision that both parties exchange income information in the form of tax returns and notices of assessment by May 15th of each year. 5) Communications ceased until MacLean Keith wrote to the petitioner on July 18, 2006, in which Mr. Stodalka stated, at paragraph 2: As you may recall, although we negotiated an agreement in September of 2003 which provided that you would pay child maintenance of $380.00 per month for Ryan and Meghan Goethals, no actual court order was ever taken out. Mr. Goethals acknowledges that you continued to pay this amount. CONCLUSION RE ALLEGED 2003 AGREEMENT [12] It is clear to the court that no legal and binding agreement was created in the year 2003. Offers and counter-offers were exchanged as summarized above. No counter-offer was ever unconditionally accepted upon which binding agreement arose at law. The petitioner and respondent proceeded forth on an informal basis which provided that the petitioner would pay to the respondent $380.00 per month commencing July 1, 2003, and on the first day of each month thereafter until August, 2006. The evidence establishes that Meghan concluded high school and registered to attend Red River College to take health care aide program commencing in September, 2006. [13] While Meghan’s status as child of the marriage has been continuous, the evidence establishes that Meghan left her father’s home and took up residence in Selkirk, Manitoba, with view to attending Red River College. The petitioner’s obligation to pay child support at the level of $380.00 per month for both children ceased. Here material change of circumstance again arises permitting this Court to proceed in fresh review of matters including evidence of the change in circumstances. [14] In Chambers the petitioner and respondent agreed that commencing September 1, 2006, the petitioner would be responsible for the maintenance of Meghan and the respondent would be responsible for the maintenance of Ryan. The parties agree that Meghan should complete her course of studies by the end of February, 2007. Therefore, commencing March 1, 2007, the petitioner would be obliged to pay to the respondent child support for Ryan. REMAINING ISSUES [15] What the parties vigorously dispute is: 1) The respondent’s claim to retroactive support commencing July 1, 2004, a date the respondent advances rather than July, 2003. 2) Whether the petitioner’s obligation to pay child support for Ryan commencing March 1, 2007, should be reduced given her allegation that undue hardship would accrue to her given the cost of exercising access between the provinces. THE LAW OF RETROACTIVITY [16] Counsel agreed with the court that the recent decision of the Supreme Court of Canada in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (CanLII); (2006), 270 D.L.R. (4th) 297, hereinafter referred to as “DBS”, is the applicable law on the topic of retroactive child support. This proceeding was brought under s. 17 of the Divorce Act and DBS therefore has application to this action. [17] have previously found that there was no agreement which legally obliged the petitioner to disclose her income tax return and notice of assessment annually as the respondent alleges. Therefore, s. 25 of the Guidelines applies: 25(1) Every spouse against whom child support order has been made must, on the written request of the other spouse or the order assignee, not more than once year after the making of the order and as long as the child is child within the meaning of these Guidelines, provide that other spouse or the order assignee with (a) the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents; (b) as applicable, any current information, in writing, about the status of any expenses included in the order pursuant to subsection 7(1); and (c) as applicable, any current information, in writing, about the circumstances relied on by the court in determination of undue hardship. (2) Where court has determined that the spouse against whom child support order is sought does not have to pay child support because his or her income level is below the minimum amount required for application of the tables, that spouse must, on the written request of the other spouse, not more than once year after the determination and as long as the child is child within the meaning of these Guidelines, provide the other spouse with the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents. (3) Where the income information of the spouse in favour of whom child support order is made is used to determine the amount of the order, the spouse must, not more than once year after the making of the order and as long as the child is child within the meaning of these Guidelines, on the written request of the other spouse, provide the other spouse with the documents and information referred to in subsection (1). [18] At paragraph 61 of DBS the Supreme Court of Canada states that there are three separate situations in which it may be appropriate for court to order that retroactive support order be made. [19] At paragraph 62 the Supreme Court describes the first situation as being, ¶62 where there has already been court order for child support, but this amount has been inadequate for some time. The most common cause for an application of this variety would be an increase in the payor parent’s income that is not reflected by an increase in the amount of child support paid. In addition to request for prospective variation, parent in this situation would ask for retroactive award representing an additional amount due. [20] The Supreme Court then addresses the concern for certainty from the payor’s perspective versus the parent’s responsibility to continually insure that their children receive the appropriate amount of support. The court summarizes the balancing of these interests at paragraph 74 of DBS. ¶74 In summary, payor parent who diligently pays the child support amount ordered by court must be presumed to have fulfilled his/her support obligation towards his/her children. Acting consistently with the court order should provide the payor parent with the benefit of predictability, and degree of certainty in managing his/her affairs. However, the court order does not absolve the payor parent or the recipient parent, for that matter of the responsibility of continually ensuring that the children are receiving an appropriate amount of support. As the circumstances underlying the original award change, the value of that award in defining parents’ obligations necessarily diminishes. In situation where the payor parent is found to be deficient in his/her support obligation to his/her children, it will be open for court, acting pursuant to the Divorce Act or the Parentage and Maintenance Act, to vary an existing order retroactively. The consequence will be that amounts that should have been paid earlier will become immediately enforceable. [21] The second scenario identified by the Supreme Court of Canada in DBS is that where there has been previous agreement between the parties. The Supreme Court of Canada reasoning for the second scenario is also important in this application given the hybrid situation which the unique facts of this case present. The hybrid is that we commence the variation analysis afresh using the 1999 child support orders to be varied. Yet, the petitioner and respondent made an informal adjustment to the monthly quantum of child support to become $380.00 effective July 2003. This became the prevailing course of conduct without the formality of either court order or formal agreement. The reasoning of the Supreme Court of Canada under the second scenario is necessary and therefore quote paragraphs 75 to 78 inclusive, from DBS: ¶75 similar, but not identical, situation arises where child support obligations have previously been set out in an agreement between the parents. While many of the same considerations apply to this situation that applied to the situation of previous court order e.g., the payor or parent’s expectation that his/her support obligations have been fully defined the difference between an agreement and court order cannot be ignored. ¶76 In Miglin v. Miglin, [2003] S.C.R. 303, 2003 SCC 24 (CanLII), and Hartshorne v. Hartshorne, [2004] S.C.R. 550, 2004 SCC 22 (CanLII), (along with Arbour J. in the former case) discussed the importance of encouraging spouses to resolve their own affairs, as well as the complementary importance of having courts defer to that resolution. These cases dealt with spousal support issues, but many of the same considerations apply in the child support context. Prolonged and adversarial litigation is just as troubling if not more so in the child support context as in the spousal support context. ¶77 The fact that we are dealing with children must remain of primary significance in court’s analysis. Thus in the Divorce Act, Parliament has provided that court may depart form the Guidelines if both parents consent, but only “if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates”: s. 15.1(7). What is “reasonable” will be determined with reference to the Guidelines: s. 15.1(8). Because of this, payor parent who adheres to separation agreement that has not been endorsed by court should not have the same expectation that (s)he is fulfilling his/her legal obligations as does payor parent acting pursuant to court order. ¶78 In most circumstances, however, agreements reached by the parents should be given considerable weight. In so doing, courts should recognize that these agreements were likely considered holistically by the parents, such that smaller amount of child support may be explained by larger amount of spousal support for the custodial parent. Therefore, it is often unwise for courts to disrupt the equilibrium achieved by parents. However, as is the case with court orders, where circumstances have changed (or were never as they first appeared) and the actual support obligations of the payor parent have not been met, courts may order retroactive award so long as the applicable statutory regime permits it: compare C.(S.E.) v. G.(D.C.) 2003 BCSC 896 (CanLII), 2003, 43 R.F.L. (5th) 41, 203 BCSC 896. [22] What the Supreme Court of Canada demonstrates in the above quotations is the need for trial court or Chambers judge to balance certainty and predictability, particularly from the payor’s perspective, against the right of children to be supported at level commensurate with the payor parent’s prevailing economic ability, ergo, income. [23] The third scenario, one of awarding retroactive support when there has not already been court order for child support to be paid, need not be pursued by me upon the facts of this application. have now defined the balancing of interests underlying this application. Next turn to the factors which are relevant in this application so as to determine whether retroactive child support should be ordered. [24] None of the factors discussed in DBS is decisive of the question whether retroactive child support should be ordered. At paragraph 99 the Supreme Court states, “at all times, court should strive for holistic view of the matter and decide each case on the basis of its particular factual matrix”. This caveat being stated, DBS then explores four factors: (a) Reasonable excuse for why support was not sought earlier (paras. 100–104); (b) Conduct of the payor parent (paras. 105–109); (c) Circumstances of the child (paras. 110–113); and (d) Hardship occasioned by retroactive award (paras. 114–117). [25] This judgment need not restate the Supreme Court of Canada’s reasoning as set forth in paragraphs 100–117. The reader can do that for him or herself. will consider each factor in light of the particular facts of this application. [26] There is no evidence before me that the respondent’s delay between June, 2004 and July, 2006 (the first time the respondent broached the issue of revising child support by sending letter to the petitioner) is reasonable excuse for inaction. First, there was no agreement that the petitioner disclosed her tax return on June 30, 2004 and each June 30 thereafter, as the respondent alleges. The respondent has been content to accept $380.00 per month as fair level of child support for both Meghan and Ryan. What precipitated the respondent’s review in July 2006 was Meghan’s departure from his home where she began to live independently with the prospect of attending college. What further propelled the continued action on the respondent’s part believe was the publicity attendant with the Supreme Court of Canada’s release of its judgment in DBS on July 31, 2006. I cannot find any reasonable excuse as to why the respondent did not seek a variation earlier, other than concluding that the respondent accepted $380.00 per month as reasonable in the circumstances that prevailed from July, 2003 until July, 2006. [27] The second factor is to examine the conduct of the petitioner as the payor parent. Is there evidence of blameworthy conduct on the petitioner’s part? The respondent argues that the failure to disclose her tax returns on June 30, 2004 and each subsequent year constituted a breach of their alleged 2003 agreement. I have found that there was no such agreement or obligation to disclose. Section 25 of the Guidelines therefore applies in the absence of covenant to disclose. No written request was made by the respondent within the meaning of s. 25. No verbal request was made by the respondent which might fall within Justice Bastarache’s definition of “effective notice”, that is the mere broaching of the subject of reviewing child support. [28] The increase in the petitioner’s level of income over the years 2002 to 2005, inclusive, is not so dramatic in my opinion as to constitute blameworthy conduct that privileges the petitioner’s own interests over her children’s right to an appropriate amount of support. The petitioner earned the following annual amounts for child support and Guideline purposes: 2002 $32,800.00 2003 $36,262.00 2004 $44,299.00 2005 $43,310.00 An increase of these proportions would not lead me to conclude that the petitioner was not contributing to her children’s support in a satisfactory manner. The respondent calculates the alleged shortfall from strict annual adjusted Guideline between July 1, 2004 to August 30, 2006, amounts to $4,322.00. This is the equivalent of $172.00 per month shortfall on the average. [29] am troubled by the definition of “blameworthy conduct” which Bastarache J. provides at paragraph 106 of DBS. He states, “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”. That definition is far too wide in my respectful opinion. It blurs the line of demarcation between majority and minority opinions in DBS. Given that liberal and generous definition, virtually all increases of the payor’s income would privilege the payor’s own interests over the children’s right to an appropriate amount of child support. am certain that Justice Bastarache did not intend minute or even slightly modest increases in the payor’s income would trigger blameworthy conduct. Deminimus non curat lex. My view of the evidence in this application is that the annual increases equivalent to roughly 10% per annum, when adjusted for the annual rate of inflation, are not so significant that the petitioner would have reasonably thought that she was feathering her own nest at the expense of her children. [30] When considering the circumstances of Meghan and Ryan over the same period of years, 2003 to 2005, no evidence was provided that their standard of living was compromised as a direct consequence of the petitioner not taking the initiative to adjust her child support payments annually. Nor was there evidence of financial hardship experienced by the children in this time period. [31] Finally, must consider the probability of hardship which might be occasioned to the petitioner if were to order her to pay the sum of $4,322.00 as retroactive adjustment of child support. At paragraph 116 DBS confirms that “the courts should attempt to craft retroactive award in way that minimizes hardship While hardship for the payor parent is much less of concern where it is the product of his/her own blameworthy conduct, it remains strong one where this is not the case”. [32] I do not find the petitioner’s conduct blameworthy. To order retroactive support of $4,322.00, whether payable in a lump sum or by installments over time, would, in my opinion, represent a hardship to a wage earner in the petitioner’s category. [33] The court file discloses that the respondent’s income was $67,986.00 in 1996. In 1997 his income was $59,375.00. In 1998 his income was $61,870.00. By 2000 his income had dropped to $37,771.00 and currently it is estimated to be $22,272.00 in this year. The respondent appears to have experienced steady and remarkable decline in his personal income since the commencement of these proceedings in 1999. Since 2003 the respondent’s income is not relevant consideration in that he has been the custodial parent. However, the respondent’s declining income can be considered as evidence when the court surveys the circumstances of the children over period where retroactive child support is being sought. am neither blindfolded nor required to use tunnel vision when interpreting the evidence as pursue an understanding of the relevant financial history of this family. However, must not draw any improper or unwarranted inferences from the evidence available. [34] The effective date in this case find to be July 18, 2006. This is when the matter of financial disclosure and review of child support was first raised or broached by the respondent. None of the factors reviewed above require that look behind the effective date. The petitioner has not engaged in blameworthy conduct. have attempted to balance the petitioner’s interest in certainty with the need for fairness and flexibility. I, therefore, dismiss the respondent’s application for retroactive child support. [35] In DBS the Supreme Court summarized this point at paragraph 133: ¶133 In determining whether to make retroactive award, court will need to look at all the relevant circumstances of the case in front of it. The payor parent’s interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, court should consider whether the recipient parent has supplied reasonable excuse for his/her delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail. PROSPECTIVE CHILD SUPPORT [36] The parties have agreed that the petitioner will support Meghan and the respondent will support Ryan without further adjustment befitting split custody arrangement for the period between September 1, 2006, and February 28, 2007. Absent such an agreement, s. of the Guidelines would require set-off based upon the parents’ respective incomes. The petitioner, with the higher income, would have to pay the respondent child support, the latter having the lower income. [37] The parties ask the court to determine the prospective amount of child support commencing March 1, 2007. This assumes Meghan will cease to have status as child of the marriage at that date. If that fact materializes, then the petitioner will have an obligation to pay child support for her son, Ryan, based upon her current income. The evidence establishes her income to be approximately $52,000.00 in year 2006 (para. 11 of her affidavit). That income extrapolates to monthly obligation of $443.00 payable by the petitioner to the respondent for Ryan’s maintenance, commencing March 1, 2007, and payable on the first day of each month thereafter while Ryan is child of the marriage. Ryan will be 16 years old on April 17, 2007. No claim has been advanced for s. contribution toward special or extraordinary expenses incurred for Ryan. [38] further find that reduction in the amount of child support is not warranted in the absence of the petitioner establishing claim that she would suffer undue hardship under s. 10(2)(b) of the Guidelines that is an unusually high expense in relation to exercising access to Ryan. Section 10(3) of the Guidelines states: 10(3) Despite determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections to 5, or 9, have higher standard of living than the household of the other spouse. [39] The petitioner has significantly higher income than the respondent alleges he will earn, that is $52,000.00 versus $22,000.00. Neither the petitioner nor respondent have testified to any other household income other than the Canada Child Tax Benefit or GST rebate. cannot conceive that the petitioner could demonstrate that the standard of living in her household would be lower than the standard of living in the respondent’s household. The plaintiff’s claim for reduction in the Table amount of child support must, therefore, fail. [40] The arguments of each of the parties were meritorious and the success mixed upon the two issues left to the court. In these circumstances there shall be no order as to costs. J. N.S. Sandomirsky
The primary issue in this application is the respondent's claim to retroactive support. HELD: 1) The Court reviewed the cases from the Supreme Court of Canada regarding retroactive child support and in particular D.B.S. v. S.R.G. et al, 2006 SCC 37. 2) The respondent has been content to accept $380 per month as fair level of child support for both children. What precipitated the respondent's review in July 2006 was Meghan's departure from his home where she began to live independently with the prospect of attending college. What further propelled the continued action on the respondent's part was the publicity attendant with the Supreme Court of Canada's release of its judgment in July 2006. There is no reasonable excuse as to why the respondent did not seek a variation earlier, other than concluding that the respondent accepted $380 per month as reasonable in the circumstances that prevailed from July 2003 to July 2006. 3) There is no evidence of blameworthy conduct on the petitioner's part. There was no agreement or obligation to disclose tax returns. No written request was made pursuant to s. 25 of the Guidelines. No verbal request was made by the respondent which might fall within the definition of 'effective notice'. The increase in the petitioner's level of income over the years 2002 to 2005 is not so dramatic as to constitute blameworthy conduct that privileges the petitioner's own interests over her children's right to an appropriate amount of support. In 2002, the petitioner earned $32,800 and, by 2005, she earned $43,310. An increase of these proportions would not lead the Court to conclude that the petitioner was not contributing to her children's support in a satisfactory manner. The Court's view of the evidence is that the annual increases equivalent to roughly 10% per annum, when adjusted for the annual rate of inflation, are not so significant that the petitioner would have reasonably thought that she was feathering her own nest at the expense of her children. 4) There was no evidence that the children's standard of living was compromised as a direct consequence of the petitioner not taking the initiative to adjust her child support payments annually. Nor was there evidence of financial hardship experienced by the children. 5) To order retroactive support of $4,322, whether payable in a lump sum or by installments over time, would represent a hardship to a wage earner in the petitioner's category. The application for retroactive child support is dismissed.