Child support where the payor’s income is less than $150,000.00 per annum is based strictly upon what is set out in the Child Support Guidelines (CSG).
Only where annual income of the payor exceeds $150,000.00 is there some discretion in the court to award less than what the CSG would ordinarily provide.
Where child support has been underpaid in situations where the payor’s income was later to be found to have exceeded $150,000.00 per annum, a retroactive child support adjustment is required. This triggers an inquiry about whether the table amount is inappropriate, having regard to the condition, means, needs and other circumstances of the child who is entitled to support and the financial ability of each spouse to contribute to the support of the child, pursuant to s. 4(b)(ii) of the CSG.
In the case of Francis v. Baker the Supreme Court determined that "inappropriate" meant "unsuitable". The case, at paragraph 40, recognized the discretion of the court, in cases where the paying parent has an annual income exceeding $150,000.00, to reduce the amount of child support prescribed by the strict application of the CSG.
As there is a presumption in favour of the Table amounts, there must be clear and compelling evidence for departing from the CSG. The factors listed in s. 4(b)(ii) of the CSG must be considered when determining whether the Table amounts are inappropriate. The goal is to achieve a balance between the CSG objectives of predictability, consistency and efficiency with fairness, flexibility and recognition of the actual circumstances of the child.
Though the child’s basic needs during the period at issue are often met, the child is usually denied the full benefit of the payor’s resources. The child would not have been able to have the advantage of a lifestyle that would have been available to the child if proper support had been paid. In cases where the child continues to live in the matrimonial home post separation, the court takes notice of the fact that the child was not disrupted by being removed from the neighbourhood where the child grew up and went on to spend the child’s formative years there in addition to the benefits of the child support that was paid.
Monies paid for the retroactive child support adjustment will compensate the recipient for past struggles in meeting the child’s needs. Also, the recipient’s financial ability to support the child going forward will be improved upon receipt of retroactive support. At the same time, however, the payment will effectively reduce the payor's financial ability to contribute to the child’s current support and provide for the day to day needs. An allowance needs to be made for these realities in regard to the child’s overall condition, needs and circumstances to ensure the payment is for child support, and not merely a transfer of wealth unrelated to the child's needs from the payor parent to the recipient.
Thus, in all the circumstances of the child, and the financial abilities of each parent, both in the intervening years and when the retroactive payment is made, retroactive child support can be adjusted downwards from that as would have been paid by a strict application of the CSG.