Avoiding Retroactive Child Support
The obligation to pay child support after separation – mandated by both Federal and Provincial legislation – is something most separated or divorced parents are well aware of. But, sometimes parents neglect to pay the necessary support for their children, or they simply pay less support than they should.
Cue a family law case for retroactive child support.
When the parent responsible for child support does not pay, or pays less than what is required, a court application should be made as soon as possible. However, that may be easier said than done. In some cases, the recipient parent feels intimidated by the court process and delays bringing an application; in other cases, the recipient parent may not be aware of the entitlement due to an increase in the other party’s income. Whatever the factors discouraging a court application, failure to pay the required child support after divorce and separation can saddle the children with a reduced standard of living for months or even years.
The family law courts want to avoid such consequences and, in circumstances of ongoing shortfall, are generally inclined to retroactively provide children with the appropriate amount of support. The precedent that sets the decision-making framework for these outcomes is the Supreme Court of Canada case DBS v. SRG 2006 SCC 37. The Court determined that the obligation to ensure proper child support falls both on the payor parent and receiving parent – the payor has an obligation to disclose finances each year and adjust child support in accordance with an increase in income; the recipient parent has an obligation to pursue the child support entitled to the children.
How far back can a retroactive child support order go?
The Court in DBS used the date of the “Effective Notice” to help set limits on a retroactive award. Effective notice is when the recipient parent has informed the payor parent that he/she intended to seek child support, and does not have to be an application in family court – it can simply be a communication between the parents. The Supreme Court of Canada decided that, in most family law cases, courts can go back three years prior to the date of effective notice. However, in rare cases of blameworthy conduct or intimidation by the parent paying child support, the court may order retroactive child support beyond the three year threshold.
How much money is involved in the retroactive award?
The Family Law court determines the amount to be paid using the Federal Child Support Guidelines and the payor’s income. Typically, the full amount of underpayment (including section 7 support) is included in the award and, given that retroactive child support can be quite substantial, the court will often issue a payment schedule to deal with the child support arrears. Important to remember, though, is that retroactive payments made are in addition to the regular monthly provision of child support.
The moral to the story? Pay the correct amount of support and avoid being hit with arrears down the line.
In any situation involving retroactive child support, it is essential to understand your rights and obligations. To ensure you’re not a victim of payback, have a free chat with our Legal Navigator at Coach My Case.