Child Support: Retroactive Orders and Agreements

Can I get child support for previous years?

There are two types of child support that deal with support that should have been paid in the past: retroactive and arrears.

Arrears occur when there is already an agreement or court order in place regarding child support, and the payor has not met their obligations. In that case, the payor spouse would be in breach of an order, and would have to pay the child support owing.  Arrears are essentially a debt.

Retroactive support is ordered when there is no prior agreement or court order in place. In this situation, the payor spouse is not in breach of any order or agreement.  The recipient spouse is asking for support that was not previously order or agreed to.  Retroactive support would be the amount ordered or agreed to be paid for the period not previously covered by an order or agreement.

This post explores what happens when a recipient parent asks for a retroactive support order, i.e. for money to be paid to them that wasn't required previously.  This may be a retroactive increase to an existing obligation, or a brand new request for support.  A payor may also ask for a retroactive change to a support order, i.e. to not have to pay money they were required to pay.  When a payor asks for a retroactive change, similar factors apply.

When will a court order retroactive support?

When deciding whether to order retroactive child support, the courts will look to a number of factors, and make a determination based on the specific circumstances of each case. Generally speaking, courts will look at four broad factors in the context of each scenario:

  1. Whether the recipient has a reasonable excuse for why support was not requested earlier;
  2. The conduct of the payor parent;
  3. The circumstances of the child; and
  4. Hardship to the payor parent by the retroactive order.

Courts will also seek to find a balance between the payor parent's interest in having financial certainty and the ability to plan their lives around their finances, and the need to be flexible in fulfilling their support obligations.

How far back can I claim retroactive support?

Courts will usually only award retroactive child support for a period of up to three years from the date on which "effective notice" was given. Effective notice means the date on which the parent who is receiving support notifies the payor parent of a need to pay or re-negotiate support. There is no requirement that notice be formal, as spouses are encouraged to discuss and negotiate these matters outside of court.

In certain circumstances, courts may award retroactive support for periods greater than three years from the date of "effective notice." The majority of these situations involve "blameworthy conduct" on the part of the payor spouse, for example:

  1. Hiding income or misleading the recipient about real income;
  2. Consciously ignoring or evading their support obligation; or
  3. Intimidating the recipient so that they are reluctant to pursue a variation in support.

A parent who does not automatically increase their support payments when their income goes up will not necessarily be considered "blameworthy."

How much retroactive support am I entitled to?

Courts will generally look to the Child Support Guidelines and the specific circumstances of each case when determining a fair amount of retroactive child support to award.  The court may not adhere strictly to the Guidelines, as they will try to take into account the impact any retroactive support order will have on the payor parent.

Important things to remember:

  1. If you are paying support, provide yearly financial disclosure and update your spouse on any changes to your finances that might affect child support. If you are receiving support, ask for this information.
  2. If you are paying support and your income increases, consider voluntarily adjusting your child support payments in accordance with the Guidelines to avoid the issue of retroactive support
  3. If you are receiving support, and there has been a change of circumstance and no corresponding change in support payments, be proactive about dealing with the issue with the payor parent.