Understanding “Retroactive Child Support” in Ontario Family Law
Under Ontario Family law, the concept of child support is a key part of ensuring a child’s needs are met when his or her parents separate or divorce.
Most parents in this situation will be familiar with the concept of ongoing child support – which is future-facing. However, the concept of “retroactive” child support is less commonly understood. This Blog will touch on the answers to some of the key questions, and outline the legal points to know.
What is “Retroactive” Child Support?
Retroactive support applications become necessary when the recipient parent must seek child support payments to cover a period of underpayment in the past, but which has only been discovered recently, or are just being acted upon.
When Do Applications for Retroactive Child Support Arise?
A recipient parent may need to apply to the court for retroactive child support in one of several common scenarios, namely where the support paying parent:
- Failed to Disclose True Income During Original Order. This typical involves deliberately underreporting his or her income at the time the original support order is made.
- Failed to Disclose Income Increases. He or she may have failed to come forward to disclose an increase in income, or failed to declare receipt of one-time employment bonuses or stock dividends, for example. These would otherwise trigger a bump in the child support payable.
- Failed to Follow Agreement or Court Order. This non-compliance by the payor can force the recipient parent to get an order covering the missed payments, or bringing the support in alignment with the payor’s actual income during the relevant period.
Less commonly, an application for retroactive support may also become necessary because the recipient parent has delayed seeking child support for various reasons, including financial independence, lack of awareness of entitlement, or other personal factors. If granted, the retroactive support order will strive to cover the child’s needs for the past period when no/inadequate support was being paid.
Related: Child Support Calculator
What are the Deciding Factors for Getting a Retroactive Support Order?
Under Canadian law, the decision in D.B.S. v. S.R.G., 2006 SCC 37 is the leading case on the legal principles behind retroactive child support. The Supreme Court of Canada confirmed that a Family court can order the payment of retroactive child support if the parent has not been paying the appropriate amount of child support.
That Court also established the framework that Family courts must follow when deciding whether to make such an order. The following factors are central to a Family court’s analysis in any given case:
- Reason for Delay in Seeking Support: This looks at why the recipient parent did not seek support earlier. If the delay was due to lack of knowledge, intimidation, or financial dependence, the court may be more inclined to award retroactive support. However, if the delay was tactical or unreasonable, the court may limit the retroactive support period.
- Conduct of the Payor Parent: The payor parent’s behavior is a crucial factor. Intentional concealment or a deliberate failure to disclose will tend to result in the court making a retroactive order. Conversely, if the payor parent was simply unaware that an increase in income has to be disclosed then the court may take this into account.
- Child’s Circumstances: The court will consider whether the child’s needs were unmet during the past period in question. If the child was deprived of necessary support due to the payor’s underpayment, this will favor a retroactive award.
- Impact on the Payor Parent: While the child’s right to support is paramount, courts will also consider the financial impact of retroactive support on the payor parent. Large retroactive payments might cause undue hardship to the parent who is paying, and the court will also consider this.
- Date of Effective Notice: The date on which the recipient parent effectively notified the payor parent of their intention to seek child support is significant. Courts generally limit retroactive support to the date of effective notice, unless there is evidence of blameworthy conduct by the payor.
The Takeaway:
Especially if you are a parent considering an application for retroactive support, it’s important to understand your rights. Feel free to give our offices a call, for advice on how best to proceed.