February 2018

PFD wins its case before the Court of Appeal of Québec

On January 25, Mtre Eloïse Pion won her case before the Court of Appeal of Québec when it dismissed the opposing party's appeal.  

Under article 595 of the Civil Code of Québec, "child support may be claimed for needs that existed before the application; however, child support cannot be claimed for needs that existed more than three years before the application, unless the debtor parent behaved in a reprehensible manner towards the other parent or the child."

In this particular case, a mother was seeking child support from her minor children's father to cover a period prior to the final judgement. On November 5, 2015, the parties came to a custody and child support agreement that was approved by the Court. Before she signed the agreement, the mother stated that she intended to seek retroactive child support. However, she ended up signing the agreement without reiterating her intent or having a reserve set aside.

On May 24, 2017, on day one, the Honourable Marie-France Courville of the Superior Court of Québec concluded that the fact that the mother had signed the agreement dated November 5, 2015, constituted a waiver of any claim for retroactive child support for the period prior to the final agreement. Several issues came into play, including the right to be heard (audi alteram partem) raised by the mother and the principles of the stability of decisions, the best interest of the children and proportionality raised by the father.

In a unanimous decision from the bench, the Court dismissed the mother's appeal, noting that the interest of the child must take precedence in all cases in which this interest is at stake.

Thus, there is reason to believe that, in the future, it will be very difficult for a parent who no longer has custody of his or her child to seek alimony for a period during which he or she did. Indeed, the mother sought support for a period during which she claimed to have shared custody of the children, yet the father has had sole custody for over two years since then.

Under the circumstances, we are of the opinion that the courts are unlikely to allow parents to claim child support for their children for a period prior to the signing of a consent final judgement in the absence an express right, aside from rare exceptions (for example, if false statements were made regarding a party's income). It is therefore critical to ensure that the past child support and payments to cover child-related costs are settled before signing a final agreement on child support.

For further details, click the following links (in French).

Droit de la famille - 171106, 2017 QCCS 2130

Droit de la famille - 171778, 2017 QCCA 1111

Dismiss of Appeal