There’s no such thing as a final order or agreement when it comes to child support – new circumstances in relation to your income can make it necessary to revisit the amount you pay at any time. Judges can order child support to increase retroactively – increase sometime in the past before the request was made. Typically, the recipient parent will ask for an increase in the amount of child support payable dating back to when your income went up. If a retroactive child support order is made, you must not only pay a lump sum representing the difference between the support that was paid and the support that ought to have been paid, but also your ongoing child support obligation. A retroactive order can be made even if there is an existing and valid order or agreement in place setting out your child support obligation.
The following points are generally considered by a court when a claim for retroactive support is made. Do any of these apply to your situation?
- Has the recipient requested increased child support from you or filed a court application?
If the recipient delays in bringing their request for increased support and then asks the Judge to grant retroactive support for the period of time they did not take action, retroactive support may not be ordered. A judge may only grant retroactive support from the date the claim was made or notice was given to you that increased support was being sought.
- Have you been avoiding your child support obligations or acting in a blameworthy way?
Courts typically do not order retroactive child support go back more than three years, unless your conduct has been “blameworthy”. Court’s take an expansive view of what constitutes blameworthy conduct and it can include conduct like hiding your income or deterring the recipient from asking for increased support.
- Has your child suffered financial hardship because you have not been paying support, or not paying the correct amount of support?
If a court finds your child(ren) have suffered financial hardship, it is more likely that retroactive support will be ordered against you.
- Would a retroactive award cause you undue hardship?
Courts will typically decline to make a retroactive child support order if your child would not actually benefit or if it would cause you hardship.
To protect yourself against a claim for retroactive child support, you should always ensure you are paying the right amount of support. The easiest way to do this is to update the amount of child support you are paying each year according to your gross annual income. If you are an employee, your gross annual income is listed at line 150 of your Income Tax Return. You can then calculate your child support obligation by using MySupportCalculator.ca. However, you should always seek legal advice when it comes to increasing or decreasing child support based on your income. You want to ensure it is done properly to avoid claims against you in the future. Other things can complicate this process, such as if you and the other parent share care of the child(ren) equally (or almost equally), if you are not an employee, if your income varies from year to year due to commissions, and a number of other considerations.
Caution: This is not legal advice, and you should not rely on it as such. To ensure your interests are protected, formally seek advice from a lawyer.