Reasons for Delay - Part Three Retroactive Child Support

In considering delay, courts should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support.

A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted.

Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made.

In Michel, the court, at paragraph 86, set out what might be understandable reasons for delay in a support recipient coming to court as follows:

a) Fear of reprisal/violence from the other parent.

b) Prohibitive costs of litigation or fear of protracted litigation.

c) Lack of information or misinformation over the payor parent’s income.

d) Fear of counter-application for custody.

e) The payor leaving the jurisdiction or the recipient unable to contact the payor parent.

f)  Illness/disability of a child or the custodian.

g) Lack of emotional means.

h) Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement.

i) Ongoing discussions in view of reconciliation, settlement negotiations or mediation.

j) The deliberate delay of the application or the trial by the payor.

Analysis:

Often times, payors say that the person being paid who is not the Mother the Payee, has neglected in asking for the retroactive payment on time. The above principles give a clear indication as to what unreasonable delay means and what is to be done about it. In fact in the recent case from 2024 given below, the Ontario court of Justice ruled that the mother had legitimate grounds and fears in not asking for retroactive payment on time because of the attitude and behaviour of the payor– father.

A lesson learnt is that it is best to pay in full, completely and on time right from the beginning. The parents may not like each other. But each parent has a duty for the child brought into this world, and to provide them financially with support.

Wright v. James, 2024 ONCJ 582 (CanLII), <https://canlii.ca/t/k7zf7>

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