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 custodial parent (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.