Retroactive Child Support Information
Courts can order retroactive child support for a period during which the support payor should have been paying support but was not, or was paying less support than what the recipient was entitled to under the Child Support Guidelines. This can occur when the support payor has an increase in income but does not increase support payments to the new Table amount.
Support payors have a duty to pay child support to their children, and to increase that support when their income increases. At the same time, the parent receiving support has a duty to actively pursue support and any support increases to which their children are entitled. Under s. 25 of the Guidelines, a support payor must, upon written request by the support recipient, provide disclosure of their current income. In addition, a separation agreement or court order may stipulate that financial disclosure is required of the payor or both parties at regular intervals. If the recipient parent knows or suspects the payor has increased income, he or she can apply to vary child support and to have that order apply retroactively.
The support recipient must bring the application for retroactive support while the child in question is still eligible for support. A parent cannot bring an application for retroactive support after that child is an adult and no longer entitled to receive support.
When will the court award retroactive support?
When determining 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.
The court must also determine how far back the award will extend. If courts find the retroactive award is appropriate, that award will be presumed to cover the period after the recipient parent first gave notice to the payor that he or she was seeking more support. That notice may have been in the form of a written request to the payor for updated financial information, written requests for increased support, or the filing of a claim for increased support.
Support retroactive to the time of the payor’s increase in income may be appropriate if the payor was required to disclose any increases in income but did not, or was not honest in his or her disclosure. But if the recipient parent knew of or suspected the payor’s increase in income but delayed in asking for disclosure or an increase in support, courts will be unlikely to award retroactive support for the period before the recipient began pursuing increased support.
In general, a retroactive award extending back more than 3 years before the recipient gave notice is considered inappropriate. However, particularly blameworthy conduct (such as deliberate evasion of support obligations) on the part of the payor can result in an exception to this general rule.
Sometimes the parent with primary parenting time (usually the mother in this type of example) may not wish for the children to have contact with the payor parent, and she therefore does not pursue support or support increases, in order to avoid contact. If the custodial mother then, down the road, decides to pursue support from the father, courts will be unlikely to award retroactive support for the time before she gave notice of her desire for support.
Courts will also consider the recipient parent’s need, the payor parent’s ability to pay, and overall fairness when determining how far back to extend the support award.
Child Support Help in Ontario
If you are seeking assistance with a child support-related issue in Ontario, Feldstein Family Law Group P.C. is equipped to protect your interests. Delivering both comprehensive and unbundled legal services, our Ontario divorce lawyers can provide the extent of counsel you need based on your budget and goals.
Learn more about retroactive child support and all other issues pertinent to your divorce or separation by calling (905) 581-7222. We serve Aurora, Newmarket, King City, and the entire York Region, as well as Unionville, Richmond Hill, Thornhill, Maple, Woodbridge, and the surrounding communities from offices in Markham, Mississauga, Oakville, and Vaughan.
Andrew Feldstein Founder
Andrew Feldstein graduated from Osgoode Hall Law School in 1992. Prior to focusing exclusively on family law, Andrew’s legal practice covered many different areas, including corporate commercial. One of Andrew’s fundamental objectives is to achieve those goals mutually and collaboratively, as set out by him and his client.
Daphna Schwartz Lawyer
Daphna Schwartz joined Feldstein Family Law Group, P.C. in 2007 as an associate lawyer. She was previously practising family law in the Barrie area. Her practice includes all areas of divorce and family law, including custody and access, child support, spousal support, and property issues. Daphna is also qualified to practise Collaborative Family Law.
Anna Troitschanski Lawyer
Anna Troitschanski joined the team at Feldstein Family Law Group, P.C. in 2012. Prior to that, she practised Family Law at a boutique Newmarket firm. Her experience covers all areas of divorce and family law, including custody and access, child support, spousal support, and division of property.
Nick Slinko Lawyer
Nick Slinko attended York University from 2003 until 2007 where he majored in both Law & Society and Philosophy. Nick graduated in 2007 with an Honours Bachelor of Arts degree. He proceeded to earn a Juris Doctor in Law at the University of Western Ontario in 2011. Nick was Called to the Bar in June of 2012 after completing his Articling term with the Feldstein Family Law Group, P.C. He became an associate with the firm immediately thereafter.
Veronica Yeung Lawyer
Veronica Yeung joined the Feldstein Family Law Group, P.C. as a summer student in 2014 and returned as an articling student in 2015. Following her call to the Ontario Bar in June 2016, Veronica was welcomed to the team as an associate lawyer.
Veronica attended York University for her undergraduate studies and graduated as a member of the Dean’s Honour Roll when she obtained her Bachelor’s degree in Honours Criminology.
Shana Gordon-Katz Lawyer
Shana joined Feldstein Family Law Group P.C. as an articling student in 2017. Following her call to the Ontario Bar in June 2018, Shana was welcomed back to the firm as an associate. While completing her articles, Shana assisted with legal matters covering all areas of family law.
Shana attended the University of Western Ontario for her undergraduate studies, where she graduated as the gold medalist of her program, Honors Specialization in Classical Studies.
Rachel Zweig Lawyer
Rachel joined Feldstein Family Law Group P.C as a Summer Student in 2019 and returned as an Articling Student in 2020-2021. Following her Call to the Ontario Bar in April 2021, Rachel was welcomed back to the firm as an Associate.
Prior to completing her legal studies and obtaining her Juris Doctor at the University of Ottawa, Rachel obtained her Bachelor’s Degree at Ryerson University with a major in English Literature.
Lauren Harvey Associate Lawyer
Lauren joined Feldstein Family Law Group as a Summer Student in 2020 and returned as an Articling Student in 2021-2022. Following her Call to the Ontario Bar in April 2022, Lauren was welcomed back to the firm as an Associate.
Prior to completing her legal studies and obtaining her Juris Doctor at the University of Western Ontario, Lauren obtained her Honour’s Bachelor of Arts Degree at Wilfrid Laurier University majoring in Criminology and minoring in Law and Society.
Quinn Held Associate Lawyer
Quinn spent two years as a Summer Student and then completed her Articling term at a boutique Family Law firm in Orangeville, where she was exposed to various complex Family Law matters. Following her Call to the Bar of Ontario in June 2022, she became an Associate with the Feldstein Family Law Group.
Prior to obtaining her Juris Doctor from the University of Windsor, Quinn obtained her Honour’s Bachelor of Arts Degree at the University of Guelph majoring in Criminal Justice and Public Policy and minoring in International Development.