Retroactive child support: what is it and how to get it
If your child is entitled to child support, it’s important to recognize that you can request the court to make an order for retroactive child support Ontario. This means you may be able to claim child support for a period before you formally brought the matter to court, even if some support was already ordered.
Retroactive child support is often sought when a support payor has failed to pay the full amount required under the Child Support Guidelines, particularly if they experienced an increase in income but did not adjust their payments accordingly. Courts have the authority to order a retroactive adjustment to ensure that children receive the financial support they were entitled to. However, whether such an award will be granted depends on various factors, including the reason for the delay in seeking support and whether the payor engaged in blameworthy conduct.
In this article, we will explore how retroactive child support works in Ontario, the factors courts consider when making an award, and how parents can ensure they are fulfilling their legal obligations.[1]
Retroactive relief: what is it?
There are three main categories for retroactive relief sought. The first is a retro up claim, which means the support recipient is asking to increase historic support. the second claim is retro down, which is where a payor asks the court to decrease their historic support obligations, usually based on the fact the order was made based on a higher income than they actually earned.
The third and final retroactive relief claim is an arrears rescission, which is where a payor asks to rescind, suspend, or lower owed support arrears due to their inability to pay.
Retro Up Claims[2]
Retro up claims are put forward by the support recipient. The first step of such a claim is for the recipient to prove that a material change in circumstances has occurred. This means there must be evidence presented that, if known by the court at the time, would have resulted in a different support obligation that what was ordered. The most common way to prove such material change is to show that the payor’s income increased since the order was granted. Increased s.7 expenses or lower recipient income have also been used. It should be noted that any failure on the part of the payor to disclosure relevant financial information will usually draw adverse influence from the court, possibly leading to an imputation of income.
Once the material change is proven, the recipient must determine how far back the requested recalculation will reach. The starting point of the court is that a party can request a retroactive change to support obligations up to 3 years before effective notice of a change was given to the payor. Effective notice here means when the payor first broached the subject of an increase of support with the payor and can be achieved over text or email.
Judges have the discretion to go beyond the three-year presumptive limit, but only where the result would be unfair otherwise. This means that judges generally only go beyond the limit where there was blameworthy conduct on the part of the payor, such as intentionally hiding assets.
Retro Down Claims[3]
Retro down claims is brought by the payor, and likewise require that the requesting party prove a material change in circumstances. Such a material change is typically some event which led to a material decrease in the payor’s income. this decrease must be continuous, real, and not a result of the choices of the payor. Examples which would typically be considered material change include unforeseen/unavoidable medical complications or being let go from your employment.
Once again, once material change has been proven the requesting party must show how far back the recalculation should extend. In the case of retro down claims, the three years from effective notice presumption still reigns, but with some alterations. For a payor to give effective notice requires them to clearly communicate the change in circumstances to the other party and provide disclosure of documents to substantiate that change. This goes beyond the mere broaching of the subject of retro up claims.
Judges still have discretion to go beyond the presumptive limit where the result would be unfair. For retro down claims, the court considers whether the payor has an understandable reason for a delay in seeking a decrease, as well as considering the whole context of the conduct of the parties and the circumstances of the children.
Arrears Rescission
This retroactive claim is the simplest of the three and requires that the payor provide sufficient evidence to convince the judge that, on the balance of probabilities, they will be unable to pay off the arrears. To do so, payors must provide the judge with a clear view of their current and future potential financial circumstances.
While straightforward, providing sufficient disclosure to prove inability to pay requires much preparation. A payor must advise the court of their employment prospects, all their assets, inheritances, bank and credit card statements, loan statements, and all other necessary disclosure.
While a present inability to pay towards arrears may result a suspension, courts will only lower or rescind arrears where it can be proven fairly definitively that the payor will never be able to pay the arrears amount.
Conclusion
I hope this article has been helpful in aiding your understanding of what a retroactive support claim is, and how they are proven. Such claims are often complex and greatly depend on the disclosure provided. To ensure that you provide all the necessary disclosure, or that the opposing party has done so, it is strongly recommended that you retain an experienced family law lawyer to assist. The earlier in the process you contact a lawyer, the better it will be for your matter.
[1] Much of the information contained in this article was sourced from “Retroactive Child Support” by the Honourable Elizabeth Jollimore, prepared for the national Family Law Program in July, 2024.
[2] Colucci, 2021 SCC 24, at para 114.
[3] Colucci, 2021 SCC 24, at paras 135 and 138.
Written by Caidan Ubell
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