Child support, often sought prospectively, may also be made retroactive under certain conditions.
The Quebec legislator has indeed provided as follows in section 595, paragraph 1, of the Civil Code of Québec. Support may be claimed for a child for needs existing before the application; however, it cannot be required for more than three years, unless the debtor parent engaged in reprehensible conduct toward the other parent or the child[1].
On reading this section, two situations must therefore be distinguished:
1) where child support is sought for a period within the three (3) years preceding the application;
2) where child support is instead sought for a period exceeding the three (3) years preceding the application.
Retroactive child support within the three years preceding the application
In the first situation, an application for retroactive child support is available as of right, regardless of whether reprehensible conduct by the debtor parent is proven[2]. In this case, however, one should not conclude that the courts will automatically grant the creditor parent’s application[3]. Indeed, it is still necessary to consider the potential impacts of requiring a parent to pay up to three (3) years of child support to the other parent, in a lump sum. Here are some examples of situations in which the court could conclude that it is not appropriate to order retroactive child support:
i) The debtor parent already has support obligations toward children who are not covered by the application, and imposing retroactive child support would cause them undue hardship[4];
ii) The debtor parent already has support obligations toward persons other than children, and imposing retroactive child support would cause them undue hardship[5];
iii) Retroactivity does not directly benefit the child and causes significant hardship to the debtor parent, which would notably be the case if the latter were no longer able to accommodate their child appropriately in the context of shared custody or access rights[6].
Retroactive child support beyond three years
In the second situation, namely where child support is sought for a period exceeding the three (3) years preceding the application, proof of reprehensible conduct by the debtor parent is required. The concept of “reprehensible conduct” may be defined as “any act by the debtor parent that tends to place their interests ahead of the child’s right to child support in an appropriate amount”[7]. By way of example, a parent who fails to disclose their return to the workforce, or who conceals income, could therefore be considered to have engaged in reprehensible conduct[8]. They could then be required to pay retroactive child support for a period exceeding the three (3) years preceding the other parent’s application.
In all cases, the debtor parent may invoke the creditor parent’s clear and unequivocal waiver of support in order to defeat an application for retroactive child support[9].
References
[1] Civil Code of Québec, CQLR, c. CCQ-1990 (hereinafter “C.C.Q.”), s. 595.
[2] Droit de la famille – 16598, 2016 QCCA 464, para. 27.
[3] Droit de la famille – 172503, 2017 QCCS 4869, para. 29.
[4] Section 587(2) C.C.Q.
[5] Section 587(3) C.C.Q.
[6] Ibid.; Droit de la famille — 181905, 2018 QCCS 3838.
[7] Droit de la famille — 19265, 2019 QCCS 648, para. 68.
[8] Droit de la famille – 152285, 2015 QCCA 1508; Droit de la famille – 16867, 2016 QCCS 1706.
[9] Droit de la famille — 19982, 2019 QCCA 930, para. 33.
