The Supreme Court of Canada recently heard argument on the circumstances in which retroactive child support orders are justified. The claimants are four Alberta fathers who have been held subject to retroactive support obligations that extend to before the custodial parent’s application for variation of the existing order. The fathers argue that these orders are unfair and not justified by the Federal Child Support Guidelines. Supporting their argument is the position of courts in British Columbia, Ontario and Saskatchewan; these courts have adopted a more restrictive interpretation of the circumstances that justify retroactive orders than has the Alberta Court of Appeal.
This brief comment addresses the critical theory issues before the Court. First, is it the obligation or merely the extent of the obligation that is retroactive? Is the idea of retroactivity in the context of the child support obligation a misnomer? Second, what is the nature of the child support obligation? Third, and consequently, in what circumstances is a retroactive order justified?
This paper is published in (2006) 43 Alberta Law Review 1049, and also available here.