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Support payments – understanding retroactive support

By Reesa Heft

Whether you are the payor or recipient of support, it is important to first differentiate between retroactive support and arrears of support. For example, if your spouse is ordered to pay child support and fails to do so, either completely or partially, a debt begins to accumulate, and the balance owing is then referred to as arrears of child support.

On the other hand, a court may find that a spouse should have been paying support to the recipient spouse for a period of time, however, was not paying, or was paying less than what they were supposed to. A non-payment of support that should have been paid is retroactive support. This often happens when there is an increase in the support payor’s income which does not correspond with an increased support payment.

In determining when retroactive child support may be awarded, the court will consider four factors:

  1. The reason for the recipient parent’s unreasonable delay in seeking child support;
  2. The blameworthy conduct of the payor parent;
  3. The past and present circumstances of the child; and
  4. Any hardship imposed by a retroactive award to the payor parent.

There is a duty imposed on a support payor to disclose income and any increases in income. Often, retroactive support will be awarded in circumstances where the support payor fails to disclose an increase in income, hoping to evade paying an increased quantum of child support. Quantum of child support is determined by the table amountUnder the Child Support Guidelines, the base table amount of child support payable is determined by the number of children, province where the payor parent resides, and the payor parent’s annual income.

Important to note that as a general rule of thumb, the courts are reluctant to make retroactive orders of child support for greater than three years. However, the “three-year rule” may be construed as a general guideline and the court has discretion to deter from the rule when the court deems appropriate. For example, failing and refusal to disclose financial information is often viewed as blameworthy conduct, and a court may divert from applying the general three-year rule.

In addition to the payor’s blameworthy conduct, the court will also look to the recipient parent’s conduct in seeking support. For example, what the circumstances were surrounding the delay in seeking support. As often in law, the outcome of whether an award for retroactive child support is justified is fact-based.

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