Now That I’m 18-Years-Old, Can I Sue My Parent For Back Child Support?

The payment of child support is one of the most common areas of contention arising from the breakdown of a marriage or familial unit. In Ontario, child support is governed by a combination of the Divorce Act, the Family Law Act, and the Child Support Guidelines. As a first step, you should listen to this podcast which explains the general rules for the payment of child support, such as who pays, how much and for how long.

While the common belief is that child support ends at 18, this is not always the case. As I explain in my article Child Support Does Not End at 18 and in the video below, the obligation of parents to support their children can continue past the age of majority in certain circumstances. In Canada, child support will continue past the age of 18 in two circumstances:

1. Where the child has a disability, such that they remain dependent on their parents and cannot gain employment that is sufficient to support themselves; or
2. If they are enrolled in a full-time program of education. This means that the child is still enrolled in high school past their 18^th birthday, or has enrolled in a full-time college or university program. There is a debate between judges as to whether students taking a ‘victory lap’ in high school would qualify for support and, if such is your case, you should speak to an experienced family law lawyer.

It is also important to remember that after the age of 18, the child support tables no longer presumptively apply. Most judges will still use them as the starting point for determining the quantum of support; however, they are given more latitude to order an amount that suits the particular child’s circumstances.

If you have a parent that has never paid support, and you are still entitled to child support, you may be able to make a claim for retroactive support. Things are very different once you are no longer eligible for ongoing support as the law presumes that when that happens the court has lost the jurisdiction to order retroactive support. There are some judges who have held that retroactive support may be awarded notwithstanding that the support recipient is no longer eligible to receive ongoing support. However, there are very limited situations in which a court could order retroactive support for a child who is no longer eligible for support. Thus far, the case law as reviewed by Justice Sherr in B(PM) demonstrates 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 last two categories, there must have been a support order in place, but the amount was inadequate. Only the first criteria apply when there was never a 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. In light of your age, it is important to talk to a family law lawyer immediately to determine if a retroactive support claim can be made.

When a claim is made for retroactive support, there are four factors that the Supreme Court, in a case called DBS, said that judges must consider. These are: 

1. the reason for the recipient parent’s delay in claiming support;
2. the conduct of the payor spouse;
3. any hardship occasioned by a retroactive support order, and;
4. the past and present circumstances of the child.

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. This page gives an overview of the law of retroactive child support.

If you are no longer entitled to receive ongoing child support, then courts will almost never order retroactive support. The only time that the court may consider ordering child support where the child is no longer a child entitled to child support is where there was some reason why it was impossible for the parent or child to seek support and they are continuing to suffer economic hardship as a result of the other parent’s failure to pay support or to knowingly pay inadequate support. Where the custodial parent made a conscious decision not to seek support when the child was entitled to support and that parent could have pursued support, the court will not order back child support. To have any chance of success with a claim for retroactive child support after child support is no longer payable, you need a really exceptional family law lawyer on your side. 

To advance your child support case, contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, 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).

To learn even more about child support, retroactive child support, and all the possible claims for support, as well as most other family law issues, get a copy of this best-selling 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.

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