Toronto Family Lawyer Ira Marcovitch was recently asked the following question:
Can child support payments be retroactive? My former spouse never claimed child support and on top of that refused to take support payments from me for years. Recently, my former spouse has gotten into some financial trouble and filed an application for me to start paying child support. Will I have to pay child support retroactively from the date of our separation or will it start from the date of the application?
Ira's Answer:
The short answer is it depends. Family Courts can order retroactive child support in certain circumstances. In 2006, the Supreme Court of Canada ruled on the issue of retroactive child support in D.B.S. v S.R.G. The Court looked at when retroactive child support can be ordered and in what circumstances. The Court provided a list of factors to take into account when child support can or should be ordered.
Child support orders are made in accordance with the Child Support Guidelines. There is a table amount that is set out for various income levels and the amount of support is based on the income of the payor spouse and the number of children. The Guideline was introduced as a way to make child support as simple, objective and predictable as possible.
In deciding whether or not retroactive child support should be ordered, the Court looked at four factors:
- Is there a reasonable excuse for the delay in making the application;
- What is the conduct of the payor parent? Whether or not the conduct was blameworthy;
- What are the circumstances of the child; and
- Will there be hardship caused on the payor parent by the retroactive payment?
In deciding the quantum of the award, there are four possible dates that the retroactive child support can be awarded from. Retroactive payments can be awarded from the date:
- The application is made;
- Of formal notice to the payor parent;
- Of effective notice to the payor parent; or
- When the amount should have been increased.
The Court imposed a three year limit as a rough guideline for how far back child support can be ordered.
To answer the question above, it is likely that a Court would order retroactive child support to the date of 'effective notice'. Effective notice, as the general rule, is the date that there is an indication by the recipient parent that child support should be paid. It is not the date that legal action is taken, such as filing the application, but is the date that the topic has been brought up with the payor parent. Because there has been no blameworthy conduct on the part of the payor parent, there would be no reason to move away from the date of effective notice.
In this circumstance, the parent would have to pay retroactive support payments from the date the former spouse brought up that he or she now needed the support payments. The requirement to pay child support is a free standing obligation that can fluctuate over time with the income and circumstances of the spouses.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
