30/09/2019 0 Comments
Back Child Support? Understanding Retroactive Child Support
Is child support still owed if it is not sought until long after the time it should have been paid? Can a parent claim back child support if the amounts paid were not as much as they should be based on the paying spouse’s income?
This post will explain retroactive child support (also known as “back child support”) and examine the issue of when retroactive child support may be payable.
Child support is the right of the child
Any discussion of child support in BC must start with the basic principle that child support is the right of the child. Linked to that basic principle, and also essential to any discussion of BC child support, is that each parent has an obligation to inform the other parent if there is an increase in his or her income. Proper financial disclosure is necessary to ensuring that the child support obligation has been properly calculated. Parents have a duty to support their children in a manner that is proportionate to their income. That parental duty is enshrined in the child support sections of BC’s Family Law Act, S.B.C. 2011, c. 25, Part 7. That being said, a parent’s obligation and a child’s related right to support exist independently of any statute or court order.
When might retroactive children support be owed?
The issue of retroactive child support can arise in a few different ways:
• When the parent receiving child support (the “recipient parent”) suspects or learns that he or she should have been receiving higher support payments than he or she actually received; i.e., where the parent paying child support (the “payor parent”) had an increase in his or her income but did not report that to the recipient parent for some time. As noted, parents have a positive duty to make financial disclosure. Where a parent has failed to update the other parent on any changes to income that might affect child support, the difference in what the payor parent should have been paying may form the basis of a claim for retroactive child support.
• In situations where the responsibility to make child support payments has not been identified – in other words, where the parent who claims that child support should have been paid did not seek child support from the other parent. The question then arises as to whether the obligation to support one’s children compels a parent to make retroactive child support payments for periods of time when the responsibility to do so was never identified, much less enforced. There are many reasons why a parent may not ask the other parent to pay child support; as will be discussed below, the reason for the delay is a factor in deciding if retroactive child support should be ordered.
• To account for the period between when the parent asked for a child support award and when the order is actually made by the court. In some family law matters, it can take several months and even years for the court to make a determination with respect to child support. In such matters, there may be a basis for a retroactive award in addition to an ongoing (i.e., prospective) child support award.
What factors are considered in deciding if back child support should be ordered?
The four factors to be considered when a retroactive child support order is sought are well-established, having been set out in a 2006 decision of the Supreme Court of Canada (see D.B.S. v. S.R.G., 2006 SCC 37). The four factors are:
1. Whether there is a reasonable excuse for why child support was not sought earlier;
2. The conduct of the payor parent;
3. The circumstances of the child; and
4. Any hardship that would be occasioned by a retroactive child support order.
In relation to the first factor, the courts will not hesitate to find a reasonable excuse where the recipient parent had justifiable fears that the payor parent would react vindictively to a child support application to the detriment of the family. A reasonable excuse may also exist where the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice. On the other hand, a recipient parent will generally lack a reasonable excuse where he or she knew higher child support payments were warranted, but decided arbitrarily not to apply. Each family law matter is unique and the determination of whether back child support will be ordered requires a careful review of the facts and circumstances. To discuss how the four factors apply with respect to your family law claim, contact our team of BC child support lawyers today at 1-855-852-5100 to schedule a free initial consultation.
How far back will a retroactive child support order go?
Where the legal test for retroactive child support is met, the order will start from the date the recipient parent notified the payor parent that child support needed to be paid or updated, to a maximum of three years prior to the giving of that notice (as a side note, the effectiveness of notice is a question of fact and it does not need to be formal notice by way of legal proceedings; this is to encourage parents to negotiate such matters outside of the courts if possible). In some situations, the court may find it warranted to make a back child support order for a period greater than three years from the date of notice. This will typically be the case where there has been "blameworthy conduct" on the part of the payor spouse (factor #2 from the D.B.S. case). Blameworthy conduct on the part of the payor spouse includes lying about or hiding one’s true income, intimidating the recipient spouse to dissuade them from pursuing child support, and continually evading child support obligations.
Note on the difference between retroactive child support and child support arrears
Retroactive child support is ordered when there is no prior agreement or court order in place with respect to child support or where the amounts ordered or agreed to do not reflect the payor parent’s true income. The recipient spouse is asking for support that was not previously ordered or agreed to. Child support arrears are more in the nature of a debt. They arise when there is an existing child support agreement or court order, but the payor parent has not met his or her obligations under that agreement or order. The payor parent can be found in breach of the agreement or order as a result of the arrears, and it may be necessary to use enforcement mechanisms to satisfy the arrears.
Have more questions? Schedule a consultation with our BC child support lawyers
Our experienced family lawyers can evaluate your claim for retroactive child support and guide you through the legal process to secure payment of back child support. We are also available to provide advice to parents who are facing a claim for retroactive child support. Call Bronson Jones & Company LLP’s team of BC child support lawyers today at 1-855-852-5100 to schedule your consultation.