QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 265 Date: 20050608 Docket: U.F.C. No. 173/1991 Judicial Centre: Saskatoon, Family Law Division BETWEEN: KELLIE ANNE HUBBARD (Formerly Gore-Hickman) and PATRICK O’BRIEN GORE-HICKMAN Counsel: L. G. Greenhorn for the petitioner K. J. Ford, Q.C. for the respondent FIAT RYAN-FROSLIE J. June 8, 2005 [1] Mr. Gore-Hickman applies to vary his February 28, 1992 divorce judgment to fix support for his oldest son, Brett, who resides with him, retroactive to August 1, 2004 and to terminate the payment to his former spouse for Brett, also effective August 1, 2004. [2] On March 30, 2005, this Court made an order fixing the parties’ incomes and providing for ongoing support for Brett of $129 per month. It also terminated Mr. Gore-Hickman’s payments for Brett as of that date. The issue of whether these orders should be made retroactive was reserved and that is the sole issue now before the Court. [3] The parties were married on May 23, 1980 and separated in December, 1990. They have two sons, namely: Brett O’Brien Gore-Hickman, born February 20, 1987 (age 18) and Kurt O’Brien Gore-Hickman, born May 12, 1989 (age 15). On February 28, 1992, Justice M. Y. Carter granted judgment for divorce after trial in which the parties were given joint custody of their two sons with primary residence to be with their father. Ms. Hubbard was to have the children with her every weekend from Friday at 9:00 a.m. to Monday at 8:00 p.m. and every Wednesday from 8/9:00 a.m. to 8:00 p.m. Holiday time was to be shared equally and Ms. Hubbard was to be the babysitter of first resort should Mr. Gore-Hickman go away on holiday without the boys. Mr. Gore-Hickman was ordered to pay $670 per month per child to Ms. Hubbard as child support. This was done even though Mr. Gore-Hickman had primary residence of the children. In her written decision, Justice Carter indicated child support was warranted given the amount of time the children would be spending with their mother and the disparity in the parties’ incomes. The judgment was pre-Guideline decision and the payments were tax deductible to Mr. Gore-Hickman and taxable in the hands of Ms. Hubbard. [4] In January, 1999, both parties applied to vary the judgment. Ms. Hubbard sought to bring the payments under the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] which came into effect May 1, 1997 and Mr. Gore-Hickman sought to eliminate the payments. On July 12, 1999, Justice Laing dismissed both applications. He held that the circumstances leading to the child support award had not changed. The parties’ incomes were similar to what had existed in February of 1992 and the children continued to spend substantial portion of their time (38.6%) with their mother. Justice Laing viewed the support granted by Justice Carter as “special provision” within the meaning of s. 17(6.2) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.). [5] Commencing with the summer of 2002, the oldest child, Brett, began to spend less and less time with his mother. On February 25, 2004, legal counsel for Mr. Gore-Hickman wrote to Ms. Hubbard requesting that the support payment for Brett terminate (See Exhibit “C” to the affidavit of Mr. Gore-Hickman sworn February 22, 2005). This was followed by further letter dated June 22, 2004. [6] On June 28/29, 2004, the parties’ youngest child, Kurt, went to live with his mother and in July, 2004, Ms. Hubbard began an application to vary claiming child support for Kurt in accordance with the Guidelines. On February 3, 2005, following hearing, Justice Koch varied Justice Carter’s 1992 judgment to provide Kurt’s primary residence would be with his mother. He found Mr. Gore-Hickman’s income for child support purposes to be $524,418 per year and Ms. Hubbard’s income to be $17,265 per year. He ordered Mr. Gore-Hickman to pay $3,550 per month as support for Kurt commencing August 1, 2004, being the first day of the month immediately following Mr. Gore-Hickman’s receipt of notice of the application to vary. While Mr. Gore-Hickman requested Justice Koch to deal with support for Brett, the judge declined to do so, indicating there was no formal application before him. At para. 16 of his judgment he stated: It may be that this variation with respect to support for Kurt will give rise to the need to have the Court consider variation of the existing support order with respect to Brett.... [7] Following Justice Koch’s decision, Mr. Gore-Hickman immediately commenced this application for variation which was filed with the Court on February 25, 2005. Both parties agreed Justice Koch’s findings with regard to the parties’ incomes should be applied in this application. [8] Ms. Hubbard and Mr. Gore-Hickman have both remarried and they continue to live in close proximity to each other. Preliminary Matter [9] As preliminary matter, counsel for Ms. Hubbard argued that because the issue of support for Brett was raised before Justice Koch, it is now “res judicata”. cannot accept that argument. For matter to be res judicata, the cause or issue must have been decided or dealt with in previous proceeding involving the same parties. While Justice Koch may have been able to deal with the issue of Brett’s support pursuant to Rule 591 of the Queen’s Bench Rules of Court, he declined to do so. It is clear from Justice Koch’s written decision that he did not deal with the issue and, in fact, contemplated that the issue would be dealt with by further application. The father’s position [10] Counsel for Mr. Gore-Hickman argues that the order providing for ongoing support for Brett, as well as the termination of his obligation to make payments to Ms. Hubbard for Brett, should both be made retroactive to August 1, 2004. This would be consistent with the order made by Justice Koch with regard to Kurt. Moreover, it is argued Ms. Hubbard had notice of Mr. Gore-Hickman’s position both with regard to terminating the support for Brett and requesting support from Ms. Hubbard by that date. They argue there is presumption in favour of retroactive order and rely on the Alberta Court of Appeal decision in D.B.S. v. S.R.G., 2005 ABCA (CanLII), (2005), R.F.L. (6th) 373 (Alta. C.A.). The mother’s position [11] Counsel for the mother argues the circumstances of this case militate against retroactive order. With reference to the termination of Mr. Gore-Hickman’s payment, they argue that even though Brett’s time with his mother has diminished there was still need on her part to maintain an adequate residence for him and corresponding ability on the part of Mr. Gore-Hickman’s to pay. They also raise the great disparity in income between the parties and argue there was an unreasonable delay in Mr. Gore-Hickman bringing this application. They also argue Ms. Hubbard has spent the funds paid to her by Mr. Gore-Hickman and, as such, they can no longer be returned to him. Ms. Hubbard also points out that the payments made to her were taxable in her hands. With reference to the ongoing payment, she pleads need and inability to pay and again raises the issue of delay. She relies on the British Columbia Court of Appeal decision in L.S. v. E.P., 1999 BCCA 393 (CanLII), (1999), 50 R.F.L. (4th) 302 (B.C. C.A.) and the Ontario Court of Appeal decision in Walsh v. Walsh (2004), 2004 CanLII 36110 (ON CA), 46 R.F.L. (5th) 455 (Ont. C.A.). Legislation [12] The application before me is pursuant to s. 17 of the Divorce Act. The relevant portions of that Act read as follows: 17(1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses. (3) The court may include in variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. (4) Before the court makes variation order in respect of child support order, the court shall satisfy itself that change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order. (6.1) court making variation order in respect of child support order shall do so in accordance with the applicable guidelines. (6.2) Notwithstanding subsection (6.1), in making variation order in respect of child support order, court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied (a) that special provisions in an order, judgment or written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit child, or that special provisions have otherwise been made for the benefit of child; and (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions. The Case Law [13] Section 17(1)(a) of the Divorce Act gives this Court jurisdiction to vary support orders retroactively. The issue here is when and from what date retroactive order is appropriate. [14] Judicial authority is divided on this issue. Two lines of authority have developed since the coming into force of the Guidelines. The first line of authority is that of the British Columbia Court of Appeal as set out in the case of L.S. v. E.P., supra. In that case, the British Columbia Court of Appeal held that the granting of retroactive child support lies within the discretion of the Court. There are no provisions that indicate how that discretion is to be exercised. The British Columbia Court of Appeal identified non-exhaustive list of factors which may mitigate for or against retroactive support. These factors are set out at paras. 66 and 67 of the decision as follows: review of the case law reveals that there are number of factors which have been regarded as significant in determining whether to order or not to order retroactive child maintenance. Factors militating in favour of ordering retroactive maintenance include: (1) the need on the part of the child and corresponding ability to pay on the part of the non-custodial parent; (2) some blameworthy conduct on the part of the non-custodial parent such as incomplete or misleading financial disclosure at the time of the original order; (3) necessity on the part of the custodial parent to encroach on his or her capital or incur debt to meet child rearing expenses; (4) an excuse for delay in bringing the application where the delay is significant; and (5) notice to the non-custodial parent of an intention to pursue maintenance followed by negotiations to that end. Factors which have militated against ordering retroactive maintenance include: (1) the order would cause an unreasonable or unfair burden to the non-custodial parent, especially to the extent that such burden would interfere with ongoing support obligations; (2) the only purpose of the award would be to redistribute capital or award spousal support in the guise of child support; and (3) significant, unexplained delay in bringing the application. [15] The British Columbia Court of Appeal held that Court has jurisdiction to make child support order effective prior to the commencement of the proceeding but that it is the “norm” to limit the retroactive award to the date when notice was given. In L.S. v. E.P., the British Columbia Court of Appeal was dealing with provincial legislation. They indicated in their reasons, however, that the same analysis would apply to retroactive orders pursuant to the Divorce Act. The approach taken in L.S. v. E.P. was reconfirmed by the British Columbia Court of Appeal in Tedham v. Tedham, 2003 BCCA 600 (CanLII), (2003), 44 R.F.L. (5th) 204 (B.C. C.A.) and more recently in Macdonald v. Macdonald, 2005 BCCA 23 (CanLII), [2005] B.C.J. No. 38 (B.C. C.A.) (QL). This approach has also been endorsed by the Ontario Court of Appeal in Horner v. Horner, (2004), 2004 CanLII 34381 (ON CA), R.F.L. (6th) 140 (Ont. C.A.), Walsh v. Walsh, supra and Park v. Thompson, 2005 CanLII 14132 (ON CA), [2005] O.J. No. 1695 (Ont. C.A.) (QL). The Ontario Court of Appeal held that nothing in the Divorce Act or the Guidelines gives court jurisdiction to re-calculate child support retroactively because of an increase in the payor’s income nor does failure to disclose an increase in income have that effect as there is no duty on payor to disclose absent contractual duty, court-ordered obligation or request from the payee for financial information pursuant to s. 25.1 of the Guidelines. The Ontario Court of Appeal held, however, that Courts have broad power to order retroactive support. The Ontario Court of Appeal applied the factors set out by the British Columbia Court of Appeal in L.S. v. E.P. and held that the real question in each case is whether the circumstances justify the making of retroactive order. They also pointed out that court must be careful on an interim application, the purpose of which is to grant temporary relief pending trial, not to render final determination on issues such as retroactive child support where full disclosure and an opportunity to hear all the relevant evidence is seldom available. [16] The second line of authority is from the Alberta Court of Appeal which dealt with the issue of retroactive child support in “trilogy” of cases: D.B.S. v. S.R.G., supra, L.J.W. v. T.A.R., 2005 ABCA (CanLII), (2005), R.F.L. (6th) 232 (Alta. C.A.) and Henry v. Henry, 2005 ABCA (CanLII), (2005), R.F.L. (6th) 275 (Alta. C.A.). Leave to appeal these decisions to the Supreme Court of Canada has been granted. The Alberta Court of Appeal held there is presumption in favour of retroactive child support to the date the obligation arose and that there is positive duty on payors to adjust their support payments when there is change to their income. The onus is on payor to rebut this presumption. The Alberta Court of Appeal recognized there may be some exceptions to the application of the presumption such as where parents share custody of their children. They also held that the presumption applies regardless of the nature of the application, that is, whether it is an interim or final one. [17] Both lines of authority recognize that certain principles have developed with regard to retroactive child support including recognition that parents have joint financial obligation to support their children, that that obligation arises from the time of the child’s birth, that the right to support belongs to the child and as such cannot be bartered away by the parent and finally that the court is always free to intervene and determine the appropriate level of support for children. [18] Both lines of authority also recognize that there is jurisdiction under the Divorce Act to make retroactive orders for child support and that those orders may cover periods that pre-date the commencement of the proceedings themselves. They also held that child’s right to support should not be function of the marital status of his or her parents and that there is strong policy interest in ensuring the same principles and factors apply to judge’s discretion in awarding retroactive support regardless of whether federal or provincial legislation applies. While both lines of authority recognize retroactive support falls within the Court’s discretion, they vary on how that discretion is to be exercised and the factors to be taken into consideration. The British Columbia Court of Appeal has held that “...the discretion to make such an order is not to be exercised as matter of course” (See para. 41 of L.S. v. E.P.). The Alberta Court of Appeal has held that subject to certain specified exceptions “...it is reasonable and consistent with the obligations of child support that payor be required to pay the support retroactive to the date the obligation arose...” (See para. 136 of D.B.S. v. D.R.G.). [19] Prior to the Alberta Court of Appeal trilogy, the “norm” in awarding retroactive child support was restricted to the date of the application for the order except in special circumstances (See: Headrick v. Headrick (1969), 1969 CanLII 249 (ON CA), D.L.R. (3d) 519 (Ont. C.A.); Pritchett v. Pritchett, [1996] B.C.J. No. 2704 (B.C. S.C.) (QL)). [20] While both lines of authority were heard post-Guidelines, the British Columbia Court of Appeal does not directly refer to the impact of the Guidelines on retroactive child support. The Alberta Court of Appeal examines that issue in great detail and concludes: 1. That the exercise of judicial discretion with regard to retroactive child support orders must be shaped by the goals and objectives of the Guidelines (See: para. 153 of D.B.S. v. D.R.G.). 2. child is entitled to child support and therefore need is presumed (See: para. 153 of D.B.S. v. D.R.G.). 3. The Guidelines presume an ability to pay in accordance with the payor’s income (See: para. 153 of D.B.S. v. D.R.G.). 4. That as part of the financial obligation to provide support, parents have duty to disclose changes in their income situation. (See: paras. 131 and 133 of D.B.S. v. D.R.G.). 5. That there is presumption in favour of retroactive support to the date the obligation arose or the payor’s income changed unless the payor has satisfied the court his financial obligation was met in some other manner, that he has taken all reasonable steps to fulfill the obligation, that previous arrangements for child support that contemplate the provisions of the Guidelines were made or that the payee has failed to act diligently and without reasonable cause. (See: para. 153 of D.B.S. v. D.R.G.). [21] This Court agrees with the Alberta Court of Appeal that the Guidelines apply to applications for retroactive support pursuant to the Divorce Act. This is evident from the wording of s. 17(6.1) of the Act. This Court also agrees that in exercising its discretion the Court must do so keeping in mind the objectives set out in s. of the Guidelines, that is, to establish fair standard of support for children that ensures they continue to benefit from the financial means of both parents, to reduce conflict and tension by making the calculation of child support orders more objective, to improve the efficiency of the legal process by giving guidance in setting the level of child support and encouraging settlement and finally, to ensure consistent treatment of spouses and children who are in similar circumstances. [22] It is noted, however, that none of the objectives are given precedence over the others. All of them must be weighed by judge in reaching their decision. Adequate and consistent support must be weighed against the requirement for fairness. [23] This Court, however, does not agree that there is presumption in favour of retroactive support. It prefers the approach taken by the British Columbia and Ontario Courts of Appeal over that of the Alberta Court of Appeal for the following reasons: 1. Neither the Divorce Act nor the Guidelines set out any principles to be applied by the Court in exercising its discretion with regard to retroactive orders. adopt the reasoning of Justice J.A. Hunt in his dissent in Henry v. Henry, supra at paras. 43 to 52. There is no presumption for or against retroactive child support orders. Parliament has left this for judicial determination. (See also: Walsh v. Walsh at paras. 20 to 23 and Homer v. Homer at para. 78). 2. Neither the Divorce Act nor the Guidelines mandate an automatic increase in support payments when payor’s income increases. As pointed out by Justice Laskin of the Ontario Court of Appeal in Walsh v. Walsh at para. 25: “Parliament could have made the policy choice to require parties to exchange financial information annually or at some other regular interval and to vary child support in accordance with the Guidelines. ... But Parliament has not made this policy choice.” 3. Section 25.1 of the Divorce Act contemplates agreements between the federal government and the provinces to establish agencies to recalculate child support orders at regular intervals on the basis of updated income information. The fact these agreements have not been put in place does not impose on those that pay support mandatory obligation to do the recalculation themselves. 4. Different considerations apply to different situations. As such, presumption in favour of retroactive support is not fair or equitable approach to the issue. It is difficult to provide comprehensive list of factors that may affect the granting of retroactive support simply because the situations that come before the Court are as diverse as the spectrum of families that exist in this country. The British Columbia Court of Appeal in L.S. v. E.P. set out non-exhaustive list of some factors that may militate for or against retroactive support. The Alberta Court of Appeal disagreed with many of these factors. This is not surprising given its “presumptive approach”. Parents of children cannot be compared to debtors and creditors. Their relationships are far more complex and personally intertwined. What affects the parent affects the children. No two sets of parents are alike nor are their situations identical. Some are single parents others become parts of blended families. Some parents are financially secure others struggle for every penny. Some parents are very involved with their children others have no involvement at all. Some parents live close at hand others live thousands of miles apart. Some parents assume other obligations for aging parents, new spouses, step-children or for other children of their own. Some remain unencumbered by family relationships. One fact is very clear. The financial impact of separations on families is devastating. When families break up, often there is not sufficient income to support two homes. Tradeoffs are made. One parent may be allowed to live in the family home with the children and retain all of the household goods while the other parent attempts to start over, the consideration being that no child support would be paid for period of time. One parent may assume all of the debts which allows the other parent to retain vehicles, household goods or recreational assets which benefit the children. Sometimes the mother of child wants nothing to do with the father and the father respects that wish. If court acts blindly without consideration for the circumstances, it does disservice to the families involved, especially the children. 5. While child support is the right of the child and cannot be waived, it falls to the custodial or primary parent to enforce that right. In doing so, they must act in the best interests of the child. They cannot “hoard” the support and enforce it at later date when the need may have passed or been met by other sources. They cannot squander it. It is incumbent on them to take action when warranted. They cannot merely sit back and say it is owed. Custodial or primary parents owe duty to the child to enforce child support rights. If they choose not to do so and assume the obligation themselves, they run risk that the Court, in weighing all of the circumstances, may not provide retroactive support. 6. It is important to remember that individuals who care for children or provide support are not always the biological parents. They may be step-parents, extended family members or “others”. Parents, or those who stand in their place, have duty to enforce child support rights. Sometimes they choose not to do so because they are frightened or intimidated by the payor, because they cannot afford to do so or because they feel overwhelmed by the legal system. Sometimes they choose not to do so because it suits their own purposes. Perhaps they want to limit the child’s contact or involvement with the payor or because they wish new partner to be the sole parental influence in their child’s life. Sometimes they choose not to because they recognize the other parent is struggling financially to hold on to family farm or family business or to help an ailing parent or spouse. The primary parent may have moved away from the payor and recognizes that the cost of access bears on the other parent’s ability to have relationship with the children even though the costs associated with that access may not be sufficient to meet the test of undue hardship pursuant to the Guidelines. They may assume greater share of the financial obligation for the children because their situation allows for the needs of the children to be met from other sources, be they extended family, new spouses, trust funds or social programs such as the child tax credit, supplements and social assistance payments. 7. Retroactive support is not the same as ongoing support in that the period of time to which it applies has passed and the resources needed for its payment may no longer be available. The problem with retroactive orders is that very often the income stream that would normally fund the payment has been used up. payor who has no notice of the claim cannot arrange their financial situation to accommodate the order. Retroactive orders often create debt that may not only affect the payor’s ability to meet his ongoing obligations to the children covered by the order but may also adversely affect their ability to provide for other children in their care. Courts must be careful not to penalize these children or place them in situations of poverty in order to provide retroactive support. For payors on fixed incomes, such debts can be crippling. It does the judicial system no good to make orders which cannot in reality be enforced. Such orders bring the judicial system into disrepute and do nothing to quell conflict between the parents. 8. Requests for retroactive support arise in number of different contexts and the context does have an impact on how the Court deals with the request. Retroactive support can arise on an interim application. Interim applications, by their very nature, are meant to put in place temporary measures pending trial or settlement. They are not meant to determine the ultimate issues between the parties. Courts on interim applications, for the most part, are dealing with affidavit evidence that is often incomplete and contradictory. There is no opportunity for either party to cross-examine the other or adduce further information that may very well sway the ultimate determination. If parties do not proceed with their application beyond the interim order stage, one must assume they are satisfied with the terms of that order. The fact some people never proceed further is not justification for courts to decide ultimate issues of retroactive support on interim applications. Requests for retroactive orders are more properly dealt with at trial or after hearing where all relevant evidence can be adduced. Variation applications result in final orders and judges dealing with such applications can order the parties be cross-examined on their affidavits or can order viva voce evidence. 9. Applications for retroactive support can include periods that are post-Guideline, pre-Guideline, or combination of the two. The importance of these periods is not only the grounds which may lead to change of circumstances but the fact that orders or agreements made prior to May 1, 1997 had tax component to them. Child support was taxable in the hands of the recipient and deductible in the hands of the payor. Orders that apply the Guidelines retroactive must consider these tax implications. As well, other sources of income may be affected by retroactive orders such as child tax credits, supplements and social assistance benefits. Courts should not mechanically make retroactive orders without considering the ultimate effect of such orders on both the payor and the payee. For example, to give mother who is on social assistance retroactive support order may not improve the situation for the children at all and may trigger overpayment from the safety net programs. 10. Parties should be entitled to rely on agreements or court orders that are in effect and should be provided with notice of intent to change them. While there is merit to the argument that parent is presumed to know they have an obligation to support their child and that one parent should not be unfairly burdened with this obligation, there is also merit to the encouragement of parents to settle matters amicably between themselves. In family relationships, this is extremely important. When agreements and court orders are made, the parties know it is likely that changes will occur in their financial situations in the future. If no provision is made for the exchange of information or recalculation, then the parties must rely on the request for information provisions set out in s. 25.1 of the Guidelines. To hold otherwise is to incorporate into those orders, agreements, and indeed the Guidelines themselves provision for automatic recalculation which simply does not exist. 11. Finally, it is questionable whether every change in income necessarily triggers change as contemplated by s. 14 of the Guidelines. How large of change is necessary, and for what time period? Often people go through temporary deviations in income due to sickness, unemployment, layoffs, unexpected overtime or the assumption of temporary duties. Over the course of tax year, their income may remain fairly constant in spite of these changes. No one can argue that for the month or two when the circumstances existed there was change of income but is this sufficient under s. 14? Many child support orders are based on income tax information which traditionally reflects income earned in the past and expected to be earned in the future. What is the date for an income change? Is it the date of the new tax return or the date the change actually occurred? [24] There is no doubt that mechanical, presumptive application of the Guidelines to request for retroactive support would provide greater certainty but it would do little else to achieve the objective of the Guidelines. [25] In summary, this Court favours the approach taken by the British Columbia and Ontario Courts of Appeal, that is, that the awarding of retroactive child support lies within the discretion of the judge. In exercising that discretion the Court must keep in mind the objectives of the Guidelines and take into consideration the circumstances of each individual case. There are many factors that may apply to the analysis and the decision of courts of various levels, including the British Columbia Court of Appeal in L.S. v. E.P., have set out number of such factors. An exhaustive list, however, is not possible. number of principles should apply to retroactive child support. Firstly, the Court must keep in mind the nature of the application and whether it is an interim one as opposed to final application. Secondly, the Court must keep in mind the objectives of the Guidelines. Thirdly, the same principles and factors should apply to retroactive orders whether they increase or decrease child support and whether they are pursuant to federal or provincial legislation. Finally, the Court must consider the individual facts of each case to ensure result which balances the requirement that parents be jointly responsible for the support of their children with the principles of fairness and equity. If the Court decides to order retroactive support, then, pursuant to s. 17(6.1) of the Divorce Act, it must do so in accordance with the Guidelines. Application of the law to the facts [26] In this case, Mr. Gore-Hickman requests that his obligation to pay support for Brett should terminate and Ms. Hubbard’s obligation to provide support for Brett should commence, both retroactive to August 1, 2004. Ms. Hubbard’s obligation to provide support for Brett probably arose after the summer of 2002 when the time Brett spent with his mother decreased dramatically. Since that time, it is uncontroverted that Brett has spent little time with his mother. It is clear from Justice Carter’s written decision that two factors prompted the awarding of support to Ms. Hubbard for Brett. First was the amount of time the child was to spend with his mother, and secondly, was the disparity in the parties’ incomes. While the disparity in income remains, it is clear that Brett, who has now reached the age of majority, is spending virtually no time with his mother. As such, the basis for the special provision no longer exists. It probably ceased to exist sometime in 2002/2003. By February, 2004, Mr. Gore-Hickman had written to Ms. Hubbard, putting her on notice that he wanted the payment to terminate. Ms. Hubbard, whose order was registered with the Maintenance Enforcement Office, refused the request to vary even though she acknowledges Brett had very little contact with her. There was no justification for the payment for Brett to continue. Justice Koch of this Court ordered Mr. Gore-Hickman to pay support for Kurt effective August 1, 2004. He declined to deal with the issue of Brett’s support but it is clear that Ms. Hubbard had notice of Mr. Gore-Hickman’s intent to request such support. It is also clear that she was aware of her obligation to provide such support. It is difficult to understand Ms. Hubbard’s failure to provide support for Brett while at the same time she insisted on the continuation of Mr. Gore-Hickman’s payment for Brett, who was spending virtually no time with her. This is particularly true when at the same time she was claiming full Table support for Kurt. It is difficult to justify situation that would provide support for one child but not the other. While there is considerable disparity in the parties incomes, there is no evidence retroactive award would negatively impact Ms. Hubbard’s ability to pay ongoing support for Brett or to provide proper level of support for Kurt. Parents have financial obligation to their children, even when their income is substantially less than that of the other parent. This is not situation where long time has passed. There has been no unreasonable or unexpected delay and Mr. Gore-Hickman should not be penalized because he attempted to negotiate the matter before proceeding with his Court application, nor should he be penalized because the judge who heard Ms. Hubbard’s application refused to deal with the matter. The fact Ms. Hubbard may have paid tax on the $670 per month paid to her from August 1, 2004 to December 31, 2004 is easily remedied by her filing an amended return. This would result in decrease in her income and may actually provide benefit to her in the form of reducing her tax. [27] Taking into account all of the circumstances, it would be fair and equitable to terminate Mr. Gore-Hickman’s obligation to pay the $670 per month to Ms. Hubbard for Brett, effective August 1, 2004 and to make Ms. Hubbard’s support payments for Brett likewise retroactive to that date. 1. There shall be an order that Mr. Gore-Hickman’s payment of $670 per month to Ms. Hubbard for the support of Brett terminate effective August 1, 2004. 2. There shall be an order that Ms. Hubbard’s child support obligation to Brett which was fixed by the fiat of March 30, 2005 at $129 per month shall be retroactive to August 1, 2004. 3. Any monies owing by Ms. Hubbard to Mr. Gore-Hickman as result of this order shall be paid to Mr. Gore-Hickman at the rate of $500 per month, which amount shall be offset against Mr. Gore-Hickman’s child support for Kurt. [28] At the request of counsel, there shall be no order as to costs with regard to this application at this time. Within 30 days, either party may apply to the local registrar to have date set before me to argue the issue of costs. J. J. A. Ryan-Froslie J.
The respondent applies to vary his 1992 divorce judgment to fix support for his oldest son, who resides with him, retroactive to August 2004 and to terminate the payment to his former spouse for him. In March 2005, this Court made an order fixing the parties incomes and providing for ongoing support for this son of $129 per month. The sole issue is whether these orders should be made retroactive. HELD: It is fair and equitable to terminate the respondent's obligation to pay $670 per month for the oldest son effective August 2004 and to make the petitioner's support payments for him retroactive to that date.  1) This Court favours an approach to retroactive child support that leaves the decision to the discretion of the Court. In exercising that discretion, the Court must keep in mind the objectives of the Guidelines and take into consideration the circumstances of each individual case. 2) The Court must consider whether the application is interim or final, the objectives of the Guidelines, the same factors should apply to retroactive orders whether they increase or decrease child support and whether they are pursuant to federal or provincial legislation, and the individual facts of each case must be considered to ensure that parents are jointly responsible for the support of their children and the principles of fairness and equity are met. If the Court decides to order retroactive support then, pursuant to s. 15(6.1) of the Divorce Act, it must do so in accordance with the Guidelines. 3) By February 2004, the respondent had written to the petitioner, putting her on notice that he wanted the payment to terminate because the oldest son was residing with him. The petitioner refused even though the son had very little contact with her. There was no justification for the payment to continue. It is difficult to understand her failure to provide support for this son while at the same time insisting on the continuation of the respondent's payment for that same son, who was spending no time with her.