Retroactive child support is a complicated topic, but I’ll try to keep it to the basics here to give a general overview.

What is retro-active child support? 

I thought this would be an interesting topic because in 2020 and 2021 the Supreme Court of Canada revisited this issue afresh after the original principles of retro-active child support were created by the Supreme Court of Canada back in 2006.

Retro-active child support is child support that’s ordered to be paid for a time that has already passed.  

Where there’s been a material change of income level to the parent who pays child support, then the law says that the paying parent needs to change their child support payment to match the income level.  

Where that doesn’t happen, then the paying parent could be ordered to pay child support to account for any past under-payment.  There is also the possibility of the paying parent applying for a retro-active decrease in child support.  

For instance, if a parent was paying $800/month, but they were supposed to pay $1000/month for the previous 12 months, then the court could order that parent to pay the deficiency of $200/month, for a total of $2,400.  

As you can imagine, this type of calculation can really add up, especially if the underpayment has continued for many months or years, and if the monthly deficiency is significant.

How far back can a person go if they were to claim retro-active child support? 

There’s a couple of things to consider regarding the date of retro-activity, or how far back you can go. There’s the general rule, and then the exceptions.

First, let’s talk about the general rule.  There’s a presumptive date that has been established by the Supreme Court of Canada which is that typically one would go back to the “date of effective notice”, and no longer than 3 years prior to the date of formal notice by commencing proceedings.  

What is effective notice and how does one give it? – well, that’s really any indication given by the recipient parent that they want to re-visit or re-negotiate child support.  To prove such notice, it’s best that it be in writing like an email or a text message.  It doesn’t have to be anything complex.

In the context of a paying parent seeking to decrease support, effective notice would need to include proof of the income reduction, not just a note saying that income had been reduced. 

Second, the exceptions – since 2006 there’s been courts at all levels all across Canada, culminating in two recent Supreme Court of Canada cases in 2020 and 2021 – who have addressed the occasions where there needs to be exceptions to this general rule, and to go back even further, possibly all the way to the date that the paying parent’s income actually increased. 

There are factors that a court would look at to determine how far back to go: 

• First, the recipient parent’s reason(s) for delaying their application for child support;
• Second, the degree of the payor’s blameworthy conduct;
• Third, the circumstances of the child; and
• Fourth, any hardship to the payor.

Simply put, the court is not very tolerant of delays in adjustments to child support, and will look at all the factors to ensure that the child’s right to support is commensurate with both parents’ income levels.

The effect of a retro-active support award seems as though it could be significant – what strategies can be implemented to avoid retro-active child support issues? 

You’re right – they can be significant, both for a paying parent who may be facing a large lump-sum payable, and for a recipient who has struggled for years and had to fight to be paid the child support that is owing to them by law.  

Over the years since the DBS case was released, there have been more and more positive obligations placed on parents to exchange income information at minimum once a year, or more often if there’s been a material change to one’s income level.  In fact, in child support orders there’s mandatory clauses which state the obligation to disclose to one another, and the date by which such disclosure will occur.  

There’s also the ability through the courts to demand the paying parent’s income documentation be disclosed if they refuse to do so.  

I always recommend to my clients that they absolutely exchange their income documentation as required.  If a paying parent doesn’t disclose, and their income increased, that may trigger a retro-active support application.  The courts have made it very clear that they are not very tolerant of under-payment of child support. 

Very simply, if there’s been a change to income level, then child support needs to be updated. Period.

Henka Divorce Law & Mediation is a Collaborative Law and Family Mediation firm that helps families thrive as they transition to separation, divorce, or cohabitation. Understanding that every journey is different, we guide families through the right legal or mediation process that fits their unique situation.

Our client service is built on three pillars – focusing on the future, nurturing and supporting children, and working together towards well-being. This includes considering everyone’s needs throughout the process. We work closely with families to provide a meaningful and fair resolution, while keeping costs down by staying out of court.

We serve families in Alberta and Saskatchewan, Canada through their separation or divorce by providing in-person and virtual Collaborative Law or Mediation services.

With extensive knowledge in matrimonial law, our founder Stephanie Dobson uses a caring, results-focused approach to help parents navigate a family separation or divorce while they connect with and support their children. Learn more about her approach and credentials.