Retroactive child support payments may be owed when one parent’s financial situation changes but the child support amount is not adjusted to reflect this change. This can be ordered when a parent has a legal duty to support a child but hasn’t paid or has underpaid the amount required under child support guidelines. In this article, I will set out the criteria for retroactive child support orders and when the Court deems these orders to be appropriate.
Support payors have a duty to pay child support to their children and this duty includes increasing the support amounts if and when their income increases. What many fail to realize is that the parent receiving the support also has a duty to pursue child support and any increases in child support that the child is entitled to. It is not enough to just rely on the payor parent to adjust their child support payments as their income changes and the Courts have set out that the child support is a freestanding obligation and the parent receiving the support has a duty to be proactive in the process.
It is common for a Court Order or agreement dealing with child support to include a clause that sets out that both parties are to exchange their taxes every year for the purpose of recalculation. If, for example, the payor parent gets a raise and is making more money, the child is entitled to an increase in support payments. However, it is not uncommon that this financial disclosure does not occur due to a variety of reasons. One party may hide their increased income, or the parties may not be able to communicate, as is often the case after a separation. However, the recipient parent cannot just sit back and bring an application for retroactive child support amounts years later that should have been paid. It is imperative that you notify the other parent as soon as you become aware of any underpayment as any delay may hinder your ability to seek retroactive amounts.
In considering whether it is appropriate to award retroactive support, the Court will consider the following factors:
- The reason for the delay on the part of the recipient parent in seeking support;
- Whether or not there was blameworthy conduct by the payor parent;
- The circumstances of the child or children; and
- Potential hardship to the payor.
These factors are important to be aware of because they work to determine the appropriateness of a retroactive award. If a recipient parent delays seeking increased support, despite knowing the payor parent’s income has increased, the Courts can limit the period for which retroactive payments are to be made, or determine that a retroactive order is not appropriate entirely.
Alternatively, if a payor parent hides their true income, the effect could be underpayment of child support for years which may accumulate to a substantial amount. Another factor the Courts look at is whether awarding a retroactive amount would cause financial hardship to a payor parent. Importantly, a parent cannot bring an application for retroactive child support after the child for which support is owed is an adult and no longer entitled to receive support.
If a Court determines that a retroactive award is appropriate given the circumstances, the Court must also determine how far back the award will extend. When determining the quantum of the award, the Court can look at 4 possible dates that retroactive child support can be awarded from:
- The date an application is made
- The date of formal notice to the payor parent
- The date of effective notice to the payor parent
- The date when the child support amount should have been increased
The leading case of D.B.S. v. S.R.G, 2006 SCC 37 set out that any retroactive award will typically be presumed to cover the period from after the recipient parent first gives notice to the payor parent that they are seeking more support. Effective notice is the date when there is an indication by the recipient parent that child support needs to be paid (or increased). This is not the date that legal action is taken, such as filing an application, but it is the date that the topic has been raised to the payor parent. Notice can be in the form of a written request for increased support, a request for updated financial information, or the filing of a claim for increased support.
Support retroactive to the date of the payor parents increase in income can be appropriate if the payor has breached an Order or agreement to disclose their income or has been dishonest in their disclosure. However, if the recipient parent knew of or suspected that the payor’s income had increased but delayed seeking disclosure or increased support, it is unlikely that the Courts will award retroactive support for the period before the recipient began pursuing an increase in support.
The general rule is that retroactive awards extending back more than three years before the recipient gave notice are usually inappropriate. However, an exception to this 3-year limit is in cases where there is particularly blameworthy conduct from the payor parent such as when the payor parent has been deliberately evading support obligations. In cases such as this one, retroactive awards can go back beyond the 3-year period and may go back as many years as when the child support should have been increased.
However, the case of D.B.S. v. S.R.G set out that retroactive orders for more than three years prior to the date of notice are only made in rare and egregious cases where a payor parent has been evading child support payments or has been dishonest about their financial circumstances.
Contact Alexander Cannon, Associate Lawyer at Boardwalk Law to learn more: [email protected] / 905.288.7109
