Retroactive child support involves adjusting payments for periods back in time. It can arise because a person has never paid child support, or because child support payments need to be corrected to reflect a person’s proper income.
Definitions and Key Concepts
Retroactive child support refers to payments that are adjusted for past periods. These adjustments can happen when it’s found that the original support amount was based on incorrect income information. For instance, if a payor parent’s income increased but payments didn’t reflect this change, retroactive support might be sought.
Family law aims to ensure that child support accurately reflects the financial ability of the payor. Retroactive adjustments ensure that children receive the financial support they were entitled to during the periods in question. This doesn’t only cover when the support was too low but can also involve the rescission of past due support if justified. These adjustments are not automatic and must be requested through proper legal channels.
Calculating Retroactive Support
Prior to determining whether to pursue a payor for under-payment of child support, one needs to analyse the costs and benefits. In order to do this the first step is financial disclosure.
Obtaining and Assessing Financial Disclosure
Support payors, and, where relevant, support recipients, are required to share with each other income information. This is required by the Child Support Guidelines, and can also form a part of Court Orders and Separation Agreements.
In family law, accurate and honest disclosure is the bare minimum. Hiding financial information, or failing to provide it voluntarily is viewed as egregious conduct by the Courts.
The courts have repeatedly placed the burden on parties to take the initiative to share changes in income with the other. Whether a person’s income goes up or down it can affect child support. If parties share the costs of section 7, both parties must share their information.
When parties fail to disclose their full financial picture, it might justify retroactive adjustments. Failure to disclose income changes can be a sign of blameworthy conduct, impacting the court’s decision. Similarly, if a recipient has knowledge of a change in the payor’s income but doesn’t request a change, this is also one of the things a court considers.
We all know that negotiating or arguing about the initial child support amounts is hard, and the challenges around having to do that over and over again are anxiety inducing. But parties need to remember, child support is the right of the child and both parties are responsible for ensuring the child(ren) receive the proper financial support from each of them.
Changes in Payor’s Income
Increases or decreases in income can affect the ability to provide appropriate child support.
If a payor’s income has increased then the table amount of child support likely needs to increase. Similarly, if a payor’s income has decreased, then the table child support amount likely needs to decrease.
We say “likely” because when there is set-off child support, the income of the recipient of child support also factors into the equation.
Evaluating the Child’s Circumstances
The court examines the past and present conditions of the child.
- Has the parenting arrangement changed?
- Has the child aged out of support needs and become self-supporting?
- Is the child being deprived of resources because of a failure to receive accurate support?
Retroactive adjustments ensure that children receive ongoing support that reflects current realities, providing support proportional to the child’s needs is a top priority in these evaluations.
The Process of Claiming Retroactive Support
Request income information from the Payor/Provide income information
In order to calculate the potential need to change child support, the income for the year(s) that are being considered for change needs to be known. This could be as little as one year, and more than a decade in some cases.
Run Support Calculations
Using the income information of the payor, and calculating for the number of children, calculations can be run using various tools. A free, publicly available tool can be found at: https://www.mysupportcalculator.ca/.
Request the change to child support
The payor or the recipient can request from the other person that the child support amounts be updated, both retroactively and going forward.
A direct request to the payor from the recipient, or vice versa, should always be the first step before running to court.
Filing for Retroactive Support
If negotiating directly isn’t working, a lawyer can assist with the negotiations, or suggest other dispute resolution paths.
If court is the pathway, the first step is filing a formal application with the family court. This application outlines the reasons for requesting retroactive support and includes evidence such as past income, changes in financial circumstances, and unmet support obligations.
Applicants should not only seek experienced legal representation but also provide proof of initial support agreements and any correspondence that highlights the non-payment of child support. Timeliness is another important factor. Delays in seeking retroactive support might affect the court’s decision.
Adjudication and Court Proceedings
After filing, the application moves to adjudication, where the court reviews the submitted materials. Both parties may present their financial situations and any changes that have occurred.
The court closely examines the reasons for unpaid support, such as financial inability or disputes. Court proceedings may involve testimonies and evidence from both parties. It is critical to have a strong legal team to argue the case effectively.
The court will consider:
- Reasonable Excuse for Why Support Was Not Sought Earlier
- Conduct of the Payor Parent
- Circumstances of the Child
- Hardship Occasioned by a Retroactive Award
Support Orders and Arrears
Once the court makes a determination that it is appropriate amount of the retroactive award, the court will consider:
- How far back in time the award should go. As a rule of thumb, it’s three years from the date of the first time the recipient made the request of the payor. And that request can be as informal as an email or text message.
- How much should be paid?
- How that amount should be paid.
Legal enforcement measures might be required if payments are not made as ordered. These can include garnishment of wages or other legal actions to secure payment. In Ontario, the Family Responsibility Office is responsible for enforcement of child support payments.
Frequently Asked Questions
What are the regulations for calculating how much retroactive child support is owed in Canada?
The Child Support Guidelines for either your province, or for the Country will be the starting point for child support calculations. If you are/were married, the Federal Child Support Guidelines apply. If you are not married, and reside in Ontario, the Ontario Child Support Guidelines apply.
Is there a statute of limitations for claiming retroactive child support in Ontario?
There is no clear limit for claiming retroactive child support. However, the courts have considered the issue of retroactive child support many, many times, and the general rule is that a court will go back three years from the date the claimant first made the request.
What distinguishes retroactive child support from support arrears?
Support arrears are missed payments on an existing order or agreement.
Retroactive child support refers to the amount ordered for a past period where no formal agreement or order existed, or where there were under-payments of support.
