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D.B.S. v S.R.G. (2006 SCC 37)

Case at a glance
CaseD.B.S. v S.R.G.
Citation2006 SCC 37
CourtSupreme Court of Canada
Year2006
TopicChild Support
Central questionWhat are the D.B.S. factors for retroactive child support?

Key takeaways {#takeaways}

  • Courts weigh four factors before ordering retroactive child support: delay, payor conduct, the child's circumstances, and hardship.
  • Awards usually reach back to when support was first raised, and rarely more than three years before formal notice.
  • In BC, later cases and the Family Law Act extend D.B.S.: retroactive variation is possible even after childhood ends.

D.B.S. v S.R.G. at a glance {#summary}

The D.B.S. factors are four questions a court weighs before ordering back-dated child support: did the recipient parent have a reasonable excuse for waiting; did the paying parent behave in a blameworthy way; what were the child's circumstances, then and now; and would a retroactive award cause hardship. No single factor decides the case.

A parent who pays exactly what the court order says might assume the past is settled. D.B.S. v S.R.G., 2006 SCC 37, says otherwise: the support obligation tracks income, not old orders. Daryl Henry kept paying the $700 a month set in his 1991 divorce judgment while his income rose substantially; the Supreme Court of Canada upheld an award reaching back to July 1, 1997, payable in instalments until 2010. Once a court makes a retroactive award, amounts that should have been paid earlier become immediately enforceable.

The facts {#facts}

D.B.S. is really four Alberta appeals the Supreme Court of Canada heard together and decided on July 31, 2006. Each involved a parent asking for child support for a period before any application was made.

D.B.S. v S.R.G. The parents had three children during a 10-year common-law relationship and separated in 1998. After an interim custody order, they moved to an informal shared-custody arrangement. Neither paid support to the other, although the father's income was substantially higher. In 2003 the mother applied under Alberta's Parentage and Maintenance Act for ongoing and retroactive support. The chambers judge (the first-level judge) ordered ongoing support but refused a retroactive award: household incomes were by then roughly equal, and the father had clearly contributed to the children's support since separation.

T.A.R. v L.J.W. The parents separated in 1991; their three children lived with the mother. The father paid $150 a month under a maintenance agreement, raised to $300 a month by a consent order in April 2003. In June 2003 a court set support at $465 a month. The mother then asked for the difference going back to 1999 — $15,771. The father earned about $23,000 a year; the mother's household income was in the low $50,000s. The chambers judge refused, pointing to hardship, the father's modest income, and the fact that he had honoured his obligations faithfully.

Henry v Henry. The parents divorced in 1991, and the divorce judgment ordered the father to pay $700 a month for their two children. His income rose dramatically afterwards; the mother, who was struggling financially, did not know. She signalled in February 2000 that she wanted more support. The father raised his payments in 2000 and 2003, but stayed well below the Federal Child Support Guidelines amounts, and at times responded to her requests with acrimony and intimidation. She applied to vary support in February 2003. The chambers judge ordered support retroactive to July 1, 1997, based on the father's Guidelines income.

Hiemstra v Hiemstra. The parents divorced in 1996; the two children lived with the father and the mother paid support. In November 2000 the son moved in with the mother and her payments stopped. The father — whose income was almost $100,000 in 2003 — refused her April 2003 request to help with their daughter's college costs. By February 2004 she was supporting both children, and she applied three months later. The chambers judge awarded retroactive support from January 1, 2003, at $500 a month, as a reasonable compromise.

The legal issues {#issues}

The Court had to answer four connected questions:

  1. Can a court order "retroactive" child support at all — support for a period before anyone applied for it — under the Divorce Act or Alberta's parentage legislation?
  2. If so, when is a retroactive award appropriate?
  3. How far back should the award reach?
  4. How is the amount calculated?

A threshold point ran through all four: is child support something a parent owes only once a court orders it, or an obligation that exists on its own and simply gets enforced later?

What the court decided {#decision}

The Court was unanimous on the results but split 4–3 on the reasoning. Bastarache J wrote for the majority (McLachlin CJ, LeBel and Deschamps JJ); Abella J wrote a concurrence (Fish and Charron JJ).

Support is owed whether or not anyone has asked yet. Parents must support their children in a way that matches their income, and this obligation — and the child's matching right — exists independently of any statute or court order (headnote; paras 1–2). A "retroactive" award is not truly retroactive: it enforces an obligation that existed all along. Payor parents under the federal scheme who do not increase payments as their income rises "will not have fulfilled their obligations to their children" (headnote). Child support is the right of the child and cannot be waived by the recipient parent (para 104).

Courts can make these awards, but they are discretionary. Under both the Divorce Act and Alberta's Parentage and Maintenance Act, courts may vary orders retroactively, make original retroactive awards, and override earlier agreements where the payor's real obligation was not met (headnote). The court must always start with the statute the application is brought under (para 137 applies this). Under the Divorce Act as it stood, a court could not make an award if the child was no longer a "child of the marriage" when the application was made — though in Henry, a Notice to Disclose served while the eldest child still qualified was enough to preserve jurisdiction (para 150).

Whether to order support: four factors. A court should take a "holistic view" and decide each case on its facts, balancing the payor's interest in certainty against fairness to the child and the need for flexibility (paras 99, 133). The four factors — none decisive — are the recipient's excuse for delay (paras 100–104), the payor's conduct (paras 105–109), the child's circumstances (paras 110–113), and hardship (paras 114–116). See the framework table below.

How far back: effective notice, usually capped at three years. Of four possible start dates, the majority chose the date of effective notice as the general rule (para 118). Effective notice needs no legal step: "all that is required is that the topic be broached" (para 121). But it will "usually be inappropriate" to reach back more than three years before formal notice (para 123), a rough guideline drawn from s. 25(1)(a) of the Guidelines. Where the payor engaged in blameworthy conduct, the start date moves back to when circumstances changed materially — for example, when income rose and was not disclosed (paras 124–125). Blameworthy conduct is read expansively: "anything that privileges the payor parent's own interests over his/her children's right to an appropriate amount of support" (para 106). Failing to disclose a material income increase is itself blameworthy (para 124).

The amount. Under the Divorce Act, ss. 15.1(3) and 17(6.1) require the award to follow the Guidelines for any period after May 1, 1997 (para 127). But courts keep tools to make the number fit: the undue-hardship discretion in s. 10 and other discretionary provisions (para 129), and adjusting the period the award covers (para 130).

The results. The D.B.S. and T.A.R. appeals were allowed — no retroactive support, deferring to the chambers judges (paras 139–145). Henry and Hiemstra were dismissed — the retroactive awards stood (paras 146–155).

The concurrence. Abella J would have made the presumptive start date the moment the payor's income materially changed, with no role for blameworthy conduct and no three-year cap, leaving hardship to trim awards case by case (paras 156 onward; headnote). Her approach did not carry the day in 2006, but it foreshadowed where the law went next.

Where the law stands now. D.B.S. remains the foundation, but two later Supreme Court of Canada decisions adjust how it is applied. In Michel v Graydon, 2020 SCC 24, [2020] 2 SCR 763 — a BC case — the Court held that s. 152 of BC's Family Law Act ("Changing, suspending or terminating orders respecting child support") lets a court retroactively vary child support even if the person is no longer a "child" and the order has expired; the D.B.S. jurisdictional limit was about original orders under s. 15.1 of the Divorce Act, not variations. In Colucci v Colucci, 2021 SCC 24, [2021] 2 SCR 3, the Court restructured the analysis: once a past material change in income is established, a presumption arises in favour of varying support back to the date of effective notice, up to three years before formal notice, with the D.B.S. factors now guiding whether to depart from that date — an approach that applies to increases as well as decreases, and that makes the payor's financial disclosure "the linchpin on which fair support depends."

What are the D.B.S. factors for retroactive child support? {#the-test}

Before ordering retroactive support, a court weighs four factors. None is decisive on its own, and the court must look at the whole picture (paras 99, 133):

  1. Reasonable excuse for delay. Why didn't the recipient parent seek support (or more support) earlier? Fear of a vindictive reaction, lack of money or emotional resources, or poor legal advice can all be reasonable excuses; an arbitrary decision not to apply generally is not (para 101).
  2. Conduct of the payor parent. Blameworthy conduct — hiding income increases, intimidating the other parent, or misleading them into thinking obligations are met — cuts strongly in favour of an award (paras 105–107). Conduct that effectively fulfilled the obligation, such as covering expenses beyond the legal minimum, can cut against one (para 109).
  3. Circumstances of the child. Both past and present: a child who went without when support should have been paid, or who is in need now, strengthens the case; a child who already enjoyed every advantage weakens it (paras 110–113).
  4. Hardship caused by the award. Retroactive awards are based on past income and can land on a parent who now has a new family to support. Courts should craft awards — lump sum, instalments, or both — to minimize hardship, though hardship flowing from the payor's own blameworthy conduct counts for less (paras 114–116).

Since Colucci (2021), these factors mainly guide how far back the award reaches rather than whether any award is available at all — see the callout above.

The framework {#numbers}

Step Question What D.B.S. says Pinpoint
1. Threshold Does the statute allow the award? Check the scheme the application is brought under; under the Divorce Act as it stood, the child had to still be a "child of the marriage" for an original order Headnote; para 150
2. Factor 1 Reasonable excuse for the delay? Fear, lack of means, or bad advice may excuse delay; arbitrary inaction generally does not Paras 100–104
3. Factor 2 Payor's conduct? Anything privileging the payor's interests over the child's right to support is blameworthy, including silent non-disclosure of income increases Paras 105–109
4. Factor 3 Child's circumstances? Past hardship and present need both matter Paras 110–113
5. Factor 4 Hardship from the award? Consider the payor's current means and other children; structure the award to soften the blow Paras 114–116
6. Start date How far back? Effective notice ("the topic be broached") as a general rule; usually no more than three years before formal notice; blameworthy conduct moves the date back to the material change Paras 118–125
7. Amount How much? Guidelines amounts for post–May 1997 periods under the Divorce Act, tempered by undue hardship and the period chosen Paras 126–130

What this means if you're separating in Surrey {#bc-impact}

BC courts apply D.B.S. through two statutes. If you were married and are divorcing, the Divorce Act applies — s. 15.1 for original child support orders and s. 17 for variations. If you were in a common-law relationship, or you choose the provincial route, BC's Family Law Act applies: s. 147 sets the duty to support a child, and s. 152 lets a court change orders retroactively. After Michel v Graydon, a BC court can do that even for an adult child whose support order has expired.

Two practical points follow. If you receive support, raising the issue matters: an email or conversation asking to revisit support is "effective notice" and usually sets the earliest date an award can reach. Waiting quietly for years can cost your child money, because of the three-year guideline. If you pay support, paying the old order is not a shield when your income has gone up — and staying silent about a raise is itself treated as blameworthy conduct that can push an award further into the past.

Retroactive claims often surface during a wider separation or divorce. See divorce in BC, child support in BC, and separation agreements in BC for how the pieces fit together, and our other case commentaries for more decisions like this one.

How a lawyer uses D.B.S. {#in-practice}

For a recipient parent, the file is built around the four factors. When was support first raised, and in what words? Emails, texts and letters fixing the date of effective notice are often the most valuable documents in the claim. A lawyer will also gather evidence of the payor's income history (through disclosure demands if needed), the child's circumstances during the underpaid years, and any conduct — non-disclosure, intimidation, misleading reassurances — that could move the start date back past three years.

For a paying parent, D.B.S. is a reason to act early. Annual income disclosure and prompt adjustment of payments protect the interest in certainty that the judgment respects; silence erodes it. Where a shortfall has already built up, a lawyer looks at hardship, contributions made outside the order, and the structure of any award — the Court itself endorsed instalment payments in Henry — and at whether a negotiated adjustment or mediation can settle the period in dispute without a court application.

Either way, the numbers are usually Guidelines arithmetic once the period and the income figures are fixed. The real contest is over dates and conduct, which is why the paper trail matters more than almost anything else.

Frequently asked questions {#faq}

How far back can retroactive child support go?

As a general rule, to the date the recipient first raised the topic — no court application needed — and usually not more than three years before formal notice (D.B.S., paras 121, 123). If the paying parent hid an income increase or otherwise acted in a blameworthy way, the award can reach back to when the income actually changed (paras 124–125).

I always paid what my order says. Can I still owe more for past years?

Yes, possibly. D.B.S. holds that the obligation tracks your income, not the old order. In Henry, the father complied with his $700-a-month order, but because his income had risen substantially and he did not adjust, the Court upheld an award back to 1997 (paras 146–150). Prompt disclosure and adjustment are the practical protection.

Is D.B.S. still the law?

Yes, with refinements. Colucci (2021) made the start-date presumption the main event, with the D.B.S. factors guiding departures from it. Michel v Graydon (2020) confirmed that under BC's Family Law Act, s. 152, retroactive variation is possible even after the child is grown and the order has expired.

References {#references}

Read the decision itself: D.B.S. v S.R.G., 2006 SCC 37