Retroactive child support
In these questions & answers ‘recipient parent’ means the parent who is getting, or is entitled to get, child support, and ‘payor parent’ means the parent who is paying, or is obligated to pay, child support.
The Supreme Court of Canada’s decision in a case called D.B.S. v. S.R.G provides guidance on retroactive child support. Here are some general child support principles outlined by the Supreme Court of Canada in that case:
- parents have a legal obligation to support their children. This obligation exists independent of any statute or court order
- child support is the child’s right
- the child’s right to support survives breakdown of the parents’ relationship
- child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together
- specific amounts of child support owed will vary based on the payor parent’s income. Therefore, under the federal child support system a payor parent should increase his/her child support payments when his/her income rises
- both parents have an ongoing obligation to ensure that the amount of child support being paid is appropriate.
Q - What is retroactive child support?
Retroactive child support is back-dated child support. For example, retroactive child support might be ordered if:
1. there is already a child support order, but the payor parent’s income has increased, and the existing order does not reflect the increased income; or
2. there is a previous agreement between the parents, but it is not a reasonable arrangement for child support, particularly in light of the Federal Child Support Guidelines; or
3. there is no existing child support order, and no child support is being paid, but it should have been paid.
Q - What factors would the court look at to decide whether a retroactive child support order should be made?
The court would look at all relevant factors in the particular case. Key factors would generally include:
1. Unreasonable delay, without a reasonable excuse - Did the recipient parent unreasonably delay applying to court for retroactive child support? If so, is there a reasonable excuse for the delay? Examples of a reasonable excuse include:
- justifiable fears that the payor parent would be vindictive if a court application was made;
- lack of financial or emotional means to make a court application
- inadequate legal advice.
2. Payor parent’s conduct - If the payor’s conduct is blameworthy, then the court would be more inclined to make a retroactive child support order. Examples of blameworthy conduct include:
- Hiding income increases in order to avoid larger support payments
- Initimidating or pressuring the recipient parent so he/she won’t go to court
- Misleading a recipient parent into believing child support obligations are being met when the payor parent knows they are not
- Consciously ignoring child support obligations
- Knowingly diminishing his/her child support obligation
- Failing to tell the recipient parent about material changes in income
- Putting the payor parent’s own interests above those of the child’s right to an appropriate amount of child support.
3. The child’s current and past circumstances – What are the child’s current needs and circumstances, and what were they at the time when support should have been paid? Was there hardship? What is the child’s current standard of living? If the child’s standard of living is high, the court may be less likely to make a retroactive child support award. The goal is to try to make sure the child receives support when they need it.
4. Hardship on the payor parent - Would a retroactive child support order cause hardship to the payor? A retroactive child support order, if granted, would generally try to minimize the hardship.
Q - If retroactive child support is ordered, how far back might the court go?
A retroactive child support order would generally go back to the date the recipient parent gave the payor parent ‘effective notice’. ‘Effective notice’ means the recipient parent brought up the topic of child support with the payor parent, and indicated that child support should be paid, or, if support was already being paid, that the amount should be increased. If the payor parent ignores the recipient parent’s ‘effective notice’, then the recipient parent would be expected to follow up by, for example, applying to court.
As a rough guideline, the Supreme Court of Canada has said that in most cases a retroactive child support order would not go back more than three years, even if ‘effective notice’ was given earlier than three years back. However, sometimes a retroactive child support order might go back further, particularly if the payor’s conduct was blameworthy. The amount of a retroactive child support order would be determined based on the facts and applicable law (eg. Divorce Act and Federal Child Support Guidelines for divorced or divorcing parents).
Q - Where can I get more information?
See the page on child support for further information.