Retroactive Child Support
Get The Child Support Funds You Need
You may be in a position where your former partner has not paid you child support or not enough child support in some time. Those arrears for child support and your claim to them is known as retroactive child support. The term retroactive child support includes section 3 child support (table amount) and section 7 child support (extraordinary expenses).
DBS v SRG, 2006 SCC 37 is the seminal case regarding retroactive child support. The decision provides that there are four factors to be considered in granting an application for retroactive child support:
The recipient’s delay in not making the application sooner;
- The blameworthy conduct on the part of the payor;
- The past and present circumstances of the children; and
- The hardship to the payor if a retroactive award were made.
In some circumstances there may be a reasonable excuse for the recipient’s delay in not making an application for child support sooner. Such reasonable excuses have included: fear of the payor’s reaction, lack of financial or emotional resources, and poor legal advice.
Sometimes a recipient is delayed in making their application for child support due to the blameworthy conduct of the payor. Such blameworthy conduct may include: threatening the recipient and purposefully not disclosing financial information.
The past and present circumstances of the children also may affect the award of retroactive child support. If the children are currently in hardship or were previously in hardship, a retroactive support award may be made.
Oftentimes, retroactive awards are issued as lump sums. In order to reduce the hardship on the payor, it may be worthy considering a periodic repayment plan of the retroactive award.
One of the big questions that clients often have is how far can you go back for retroactive child support? Usually, the Court will go back as far as three years, or to the date the recipient provided the payor with “effective notice”. “Effective notice” means when the recipient brought up the topic of child support and indicated that the child support should be paid. Generally, the Court will only go back three years, even if effective notice was given earlier; however, if there is blameworthy conduct on the part of the payor, the Court may go back further.