In Ontario, Family Courts frequently issue orders for retroactive child support, which is a form of back child support. Judges commonly make decisions on retroactive child support, even in cases where the paying parent may not believe they can afford it.
Under s. 25 of the Child Support Guidelines, the separated parents of a child are supposed to exchange income information every year and adjust child support based on what is appropriate.
In a case called D.B.S., the Supreme Court looked at how far retroactive support can go. Here is that decision. Generally, child support can be awarded as far back as when the person who should have been receiving support first raised this issue. This means that you have to be able to prove that you asked for support or a change in support. So, you need to ask for support, or a change in support, or at least financial disclosure, in writing so that you can prove when you asked. If you cannot prove you asked for child support, the court will award support from the date you started the court proceeding seeking it.
In addition, since Child Support is the right of the child, and parents should know they have to pay, then the child support payer has an obligation to pay child support pursuant to the Child Support Guidelines regardless of whether he or she was asked to pay support. So, the Supreme Court said retroactive child support can be ordered for a period before the support recipient asks for it. The court felt that if a recipient did not ask for support, or a change in support, for some time, then the support payer may have thought that there was no interest in pursuing child support. A hardship would result if too much retroactive support was awarded. So, the Supreme Court said a court can award retroactive support for three years prior to the request for child support. The court may not want to do so if the person who should have gotten support gave the impression that he or she did not want to get that additional support.
But, absent special circumstances, the rule is retroactive child support can be ordered back to three years before the child support recipient can prove that he or she asked for child support or that child support should be changed.
Child support can be ordered even father back where the support payer has hidden how much she or he is really making. If the support payer actively deceived the support recipient into believing that it would not be worthwhile to pursue child support or a change in child support, then the court can order retroactive support back to the start of that deception – no matter how far back that was. Sometimes, refusing to provide financial disclosure is deception, when it would have shown a higher income. At other times, the payer just refusing to reveal that his or her income has gone up significantly is enough to justify going back beyond the three years. It depends on whether the judge believed the payer intended to deceive the recipient.
Claims for retroactive child support in Ontario, though not uncommon, are complicated. Unlike ongoing child support, retroactive support is not mandatory. In the DBS case, the Supreme Court outlined the factors that a judge must consider when deciding to award retroactive child support. The factors are:
- 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?
- 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?
- Any hardship occasioned by a retroactive support order – will paying retroactive support be overly onerous or financially crippling for a payor?
- 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 for support?
Also, if the support payer earns income from sources other than a salary (usually self-employment or investments), calculating income can be much more complicated and child support is often higher than the parents expect. The obligation to provide disclosure is much larger for those parents because many more factors have to be considered in calculating income for child support purposes.
Don’t forget that your ex may be on the hook for more than just table support. All separated parents of children should be paying part of certain big expenses on top of base support.
Judges view child support as very important. They are not sympathetic to parents who do not pay the appropriate amount of child support. Judges will say that child support should take priority over all other expenses.
Click here to see a good decision from Ontario Family Court where the judge applied the ideas above and ordered over $36,000.00 in retroactive support. It shows how a parent can get into trouble by playing games about child support and can get stuck owing a large amount of support. A parent “trying to beat the system” to avoid child support often results in that parent paying a lot more child support. (This case also shows how John Schuman gets results for his clients.)
Child support can be complicated, and it can involve a lot of money. So your best bet is to meet with a good family law lawyer who can tell you how child support law applies to you and your particular circumstances. (You may also get a tax deduction for your lawyer’s fees in relation to getting child support.) To contact Certified Specialist in Family Law and top Toronto Lawyer for child support, John Schuman, please call the number at the top of this page, or use the contact form at the bottom of the page.
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