Can I Go Back And Get That Child Support That Should Have Been Paid?

There are many reasons why parents do not go after child support for their children. Sometimes they are afraid of violence. Sometimes it does not seem worth it because the support payer makes too little. Sometimes it does not seem like it will be worth the anticipated conflict or court battle. However, whatever the reason, the child almost always “goes without” because there would be more money to spend on the child if every parent met his or her financial obligations to the child. Many years later, when a child does not have enough money to go to college or needs money for some special expense, or to get started in life, or when a parent is short on cash, it can seem attractive to try to go back and get the child support that a parent should have paid but did not. The parent who should have got the support, and the child, may assume that the unpaid support is just sitting there in the other parent’s bank account. However, getting back child support may not be that easy.

In Ontario, child support is governed by a combination of the Family Law Act, the Divorce Act, and the Child Support Guidelines. Under both the Family Law Act and the Divorce Act, parents have an obligation to support their children. When parents separate, this obligation usually takes the form of child support. You should listen to this podcast which explains the general rules for child support in Ontario – who pays to whom, how much, and for how long. You can also watch the video on child support below. As I have explained in previous articles, the amount of child support in Ontario is fixed according to the Child Support Guidelines table. The tables provide a quantum of support based on the income of the ‘payor parent’ and the number of children. The amount of support can be increased by court order or agreement and, in very rare circumstances, a judge may award an amount of child support that is different than the table amount if the child would benefit just as much.

Child support can be paid pursuant to a separation agreement, a Court order, or without either of these formal arrangements. It is important to know that even without a separation agreement or child support, the ‘payor’ parent has the obligation to pay support – it is a legal obligation that arises by virtue of your relationship with the child and is not dependant on any agreement or court order. Many people believe that unless there is an agreement or court order, they do not owe child support – this is a mistake and can be a costly one.

If someone is supposed to be paying child support, but isn’t, or isn’t paying enough support, this is a problem. In such cases, you should speak to an experienced family law lawyer. Judges want to see that children are being financially supported by their parents, and do not look kindly at parents trying to shirk these responsibilities. However, in some cases, recipient parents do not make a claim to child support immediately on separation. In many cases, years go by with a parent not paying child support, or paying an inappropriately low amount of support. In these cases, a recipient parent, or the child, can make an application for retroactive child support – that is, an award of child support on account of child support payments that should have been made in the past.

Claims for retroactive support, though not uncommon, are complicated. Unlike ongoing child support, retroactive support is not mandatory. You have to convince a judge that you are entitled to support, in some cases many years after the support should have been paid. This is not an easy task and requires a strong knowledge of family law to do so effectively. In Canada, the leading case on the award of retroactive support is the Supreme Court of Canada’s decision in DBS v SRG. In that case, the Court outlined the factors that a judge must consider when deciding to award retroactive child support. The factors are:

1. The reason for the recipient parent (or child’s delay) in claiming support – was the delay in good faith? Or did they simply decide to forgo child support?
2. The conduct of the payor spouse – did they not disclose their full income when child support was originally determined? Did they engage in other misconduct to frustrate a child or recipient parent’s attempts to get support?
3. Any hardship occasioned by a retroactive support order – will paying retroactive support be overly onerous or financially crippling for a payor?
4. The past and present circumstances of the child – Were they financially supported and stable during the period they should have been receiving support? Are they currently in need of support?

After DBS, many judges believed that a claim for retroactive support could only be made while the child was still a child. This means that when the child turned 18 (unless there were reasons why child support should not end at 18; see my article – Child Support Does Not End at 18), the court would lose the jurisdiction to make a retroactive child support award. Some judges did to like this and wanted to order child sport but felt the law did to allow that. Many judges follow this reasoning, and there are cases from courts of appeal in different provinces that confirm that retroactive child support can only be awarded while the dependant remains eligible for support.

However, there have been recent cases where Ontario courts have awarded retroactive child support after the child has ceased to be eligible for ongoing support. However, the situations in which a court will make such are order are very limited. If you are no longer eligible to receive child support, but believe that you are entitled to retroactive support, speak to an experienced family law lawyer. They will be able to review your situation and determine whether you may be eligible for retroactive support. Thus far, Ontario courts have found that this may be possible in the following circumstances:

1. Where the application for retroactive support would have been brought within time but for blameworthy conduct on the part of the payor spouse;
2. In variation proceedings where there is an existing order and an established support obligation under the Divorce Act
3. In motion to change proceedings where there is an existing order and an established support obligation under the Family Law Act.

In the latter two categories, there must have been a child support order in place, but for an inadequate amount of support. Only in the first category of cases can claims be made where there is no prior support order in place. These categories are not fixed or definite, and a court has significant discretion whether to allow an ‘out of time’ retroactive support claim or not. Given your age, it is important to talk to a family law lawyer immediately to determine if a retroactive support claim can be made.

If you are planning to make a claim for retroactive child support, it is very important that you speak with an experienced family law lawyer. Unlike present and future child support (which is mandatory), a judge has discretion whether or not to order retroactive child support. It will depend on how strong an argument you can make based on the DBS factors. This requires intimate knowledge of the law, as well as experience in litigating these claims.

To learn even more about child support and awards for retroactive support, you may want to get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac. You may also want to listen to this podcast or watch this video. You can also use the search on the right to find lots more articles about marriage and divorce. 

Obviously, there can be a lot of money involved in child support cases and only could really help a child with his or her needs (or not). You need to get the help of a lawyer immediately to avoid financial hardship. Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-4036, or using the contact form below. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).

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