1. What Is Retroactive Child Support?

2. What Does Retroactive Child Support Mean?

3. Is Retroactive Child Support the Same as Child Support Arrears?

4. When Can Retroactive Child Support Be Ordered?

5. What Is the Three-Year Rule for Retroactive Child Support?

6. What Is Effective Notice?

7. What Factors Does the Court Consider?

8. What If the Payor Did Not Disclose Their Income?

9. How Is Retroactive Child Support Calculated?

10. Can Retroactive Child Support Be Ordered If There Was No Existing Court Order?

11. What If Child Support Was Already Ordered but the Payor's Income Increased?

12. What If the Payor's Income Decreased?

13. Can Retroactive Child Support Go Back More Than Three Years?

14. What Evidence Is Needed for a Retroactive Child Support Claim?

15. Common Mistakes to Avoid

16. Costs and Timelines

17. When Should You Speak With a Family Lawyer?

18. How Bridgestone Law Can Help

What Is Retroactive Child Support?

Retroactive child support is child support that is awarded for a period in the past when the amount of support paid or ordered did not reflect the support that should have been paid.

A retroactive child support claim can arise in several situations. For example, a parent's income may have increased substantially but the child support amount was never adjusted. A parent may have failed to provide required financial disclosure. Or child support may never have been formally established even though the parent had an ongoing obligation to contribute to the child's financial needs.

The term "retroactive" can be somewhat misleading. The Supreme Court of Canada has explained that these claims generally involve enforcing a child support obligation that should have been met during an earlier period, rather than creating a completely new obligation for the past.

Retroactive child support is different from ordinary child support arrears. Arrears generally involve support that was already required under an existing order or agreement but was not paid. Retroactive support can involve determining what the appropriate support amount should have been for an earlier period.

The amount and period of retroactive support depend heavily on the circumstances of the case.

What Does Retroactive Child Support Mean?

Retroactive child support refers to an award covering a period before the court makes its decision about the appropriate amount of support.

For example, suppose a parent was paying $800 per month in child support. Their income later increased significantly, but the support amount remained unchanged. If the other parent raises the issue and seeks an adjustment, the court may consider whether additional child support should have been paid during the earlier period.

A retroactive award can therefore result in a parent owing an additional amount for past years.

Retroactive support may also arise where:

• child support was never formally established;

• a parent's income increased but support was not updated;

• a parent failed to provide accurate financial information;

• a parent understated or concealed income;

• an existing support amount no longer reflected the applicable Child Support Guidelines; or

• circumstances changed and a court is asked to determine the appropriate amount for an earlier period.

The specific legal analysis depends on whether the claim involves an original support obligation, a retroactive increase to existing support or another type of variation.

Is Retroactive Child Support the Same as Child Support Arrears?

No.

The distinction is important.

Child support arrears 

Generally arise when a parent was already required to pay a specific amount of child support but failed to make the required payments.

For example, if a court order requires a parent to pay $1,200 per month and the parent misses three payments, the $3,600 owing is generally an arrears issue.

Retroactive child support 

This can involve a different question: whether the parent should have been paying a higher amount during an earlier period based on their income and the applicable support rules.

The Supreme Court of Canada has specifically distinguished retroactive support claims from cases involving unpaid amounts that were already established under an order or agreement.

The distinction can affect the legal test, the evidence required and the date from which an adjustment may be made.

When Can Retroactive Child Support Be Ordered?

There is no automatic entitlement to a retroactive award simply because one parent believes that too little child support was paid.

The court must consider the circumstances and exercise its discretion.

In D.B.S. v. S.R.G., the Supreme Court of Canada identified four important factors when determining whether a retroactive child support award is appropriate:

1. The recipient parent's delay in seeking support;

2. The conduct of the payor parent;

3. The circumstances and needs of the child; and

4. Any hardship that a retroactive award may cause the payor.

These factors are considered together rather than as a strict checklist. The court takes a holistic approach based on the facts of the particular case.

What Is the Three-Year Rule for Retroactive Child Support?

One of the most commonly misunderstood aspects of retroactive child support is the three-year presumptive limit.

As a general rule, when a retroactive increase in child support is appropriate, the court will generally look back to the date the recipient parent gave the payor effective notice that increased support was being sought, but no more than three years before formal notice of the court application.

This is a presumption, not an absolute rule.

The court can depart from the presumptive period where the circumstances justify doing so.

For example, a parent who deliberately failed to disclose a significant increase in income may face a longer retroactive period.

The Supreme Court has emphasized that the purpose of the three-year approach includes balancing the child's right to appropriate support with the need for certainty and fairness for both parents.

What Is Effective Notice?

Effective notice is an important concept in retroactive child support cases.

For a recipient seeking a retroactive increase, effective notice generally means that the recipient parent has raised the issue of increased child support with the payor.

The Supreme Court has stated that effective notice in the context of a retroactive increase does not necessarily require a court application. The subject can be raised directly with the other parent.

For example, a parent might communicate that:

• the payor's income appears to have increased;

• the existing child support amount no longer appears accurate;

• updated financial disclosure is required; or

• an increase in child support is being requested.

Keeping written records of these communications can be important if the parties later disagree about when notice was given.

What Factors Does the Court Consider?

1. The Recipient Parent's Delay

The court may consider why the recipient parent waited before seeking an increase.

There can be many legitimate reasons for delay. A parent may not have known about the other parent's income, may have been attempting to resolve the issue informally or may have been concerned about escalating conflict.

Delay does not automatically prevent a retroactive award.

The court considers the reason for the delay and the circumstances surrounding it.

2. The Payor Parent's Conduct

The conduct of the payor can be particularly important.

The court may consider whether the payor:

• provided accurate financial disclosure;

• complied with requests for income information;

• knew that their income had increased;

• attempted to avoid their support obligation;

• concealed or understated income; or

• acted reasonably when dealing with the support issue.

A failure to disclose a material increase in income can weigh strongly in favor of a retroactive increase. The Supreme Court has indicated that blameworthy conduct can justify extending retroactivity back to the date of the income increase.

3. The Circumstances and Needs of the Child

Child support exists to meet the financial needs of children.

The court can therefore consider the child's circumstances during the period for which retroactive support is being requested.

Relevant considerations may include:

• the child's financial needs;

• whether the child experienced hardship;

• the standard of living available to the child;

• whether the recipient parent carried a disproportionate financial burden; and

• whether the child continues to have financial needs.

The child's interests remain an important part of the court's overall analysis.

4. Hardship to the Payor

The court can also consider whether a retroactive award would cause significant hardship to the payor.

However, hardship does not automatically prevent a retroactive award.

The court may consider the payor's income, assets, debts and overall financial circumstances. A claim of hardship should generally be supported by evidence rather than simply asserted.

The court must balance any hardship to the payor against the potential hardship to the child and recipient parent.

What If the Payor Did Not Disclose Their Income?

Failure to provide financial disclosure can significantly affect a retroactive child support claim.

Child support is generally calculated using the parent's income and the applicable Child Support Guidelines. If a parent does not provide the financial information necessary to determine income, the court may have to consider other evidence.

Depending on the circumstances, a court may impute income, draw adverse inferences or make other procedural and costs-related orders.

The Supreme Court of Canada has emphasized that the obligation to disclose income information is closely connected to the obligation to pay child support based on income.

For this reason, parents should not assume that failing to provide tax returns or other financial information will prevent a retroactive support claim.

How Is Retroactive Child Support Calculated?

Once a court determines that retroactive support should be awarded, it must determine the appropriate amount for each relevant period.

This generally requires looking at the parent's income during the years in question rather than simply using their current income.

The calculation may involve:

• personal income tax returns;

• Notices of Assessment;

• T4 and other tax slips;

• employment records;

• bonus and commission information;

• self-employment records;

• corporate financial statements;

• business income;

• investment income;

• rental income;

• pensions and benefits; and

• other financial information relevant to guideline income.

The applicable Child Support Guidelines and tables for the relevant period may also need to be considered.

This can make retroactive calculations more complicated than simply multiplying the current monthly support amount by the number of months being claimed.

Can Retroactive Child Support Be Ordered If There Was No Existing Court Order?

Yes, potentially.

A parent does not necessarily need to have an existing child support order before seeking retroactive support.

A retroactive claim may arise where there was no formal order or agreement establishing child support and a parent later asks the court to determine what support should have been paid during an earlier period.

The Supreme Court of Canada's decision in D.B.S. included cases involving retroactive support claims where the specific support obligations had not previously been established by an order or agreement.

The court will consider the applicable law and the particular circumstances of the family.

What If Child Support Was Already Ordered but the Payor's Income Increased?

This is one of the most common situations involving retroactive child support.

Suppose a parent was ordered to pay $1,000 per month based on an annual income of $60,000.

Several years later, that parent's income increases to $120,000, but the child support amount remains unchanged.

The recipient parent may seek a retroactive increase based on the higher income.

The court may consider when the income increased, when the recipient became aware of the change, whether effective notice was provided and whether the payor disclosed the relevant financial information.

If the payor failed to disclose a material increase in income, the court may consider that conduct when deciding how far back the increased support should apply.

What If the Payor's Income Decreased?

A retroactive child support claim can also involve a request by a payor to reduce support based on a past decrease in income.

This is a different legal situation from a recipient seeking a retroactive increase.

In Colucci v. Colucci, the Supreme Court of Canada explained that a payor seeking a retroactive reduction generally must establish a material change in circumstances, supported by reliable evidence showing when and how the income changed and that the reduction was significant, lasting and not simply voluntary.

Effective notice is particularly important in this context.

A payor who experiences a substantial income reduction should not simply stop paying the amount set out in an existing order. Instead, the payor should address the change promptly, provide appropriate financial disclosure and take steps to seek a variation where appropriate.

Can Retroactive Child Support Go Back More Than Three Years?

Sometimes.

The three-year period is a presumption, not an absolute maximum.

A court can depart from the presumptive period when the circumstances justify it.

For example, the Supreme Court has recognized that a payor's blameworthy conduct, including failure to disclose a material increase in income, can be relevant to extending the period of retroactivity.

The facts of each case matter.

A parent should therefore not assume that a claim is automatically limited to three years or, conversely, that all historical support can automatically be recovered.

What Evidence Is Needed for a Retroactive Child Support Claim?

The evidence required depends on the circumstances.

Common documents can include:

• child support orders or agreements;

• previous child support calculations;

• tax returns;

• Notices of Assessment;

• T4s and other income documents;

• pay statements;

• employment records;

• business and corporate records;

• bank statements;

• communications between the parents;

• requests for financial disclosure;

• records showing changes in income; and

• evidence concerning the child's financial circumstances.

Written communications can be particularly important when determining when effective notice was provided.

A parent seeking retroactive support should preserve emails, letters and text messages relating to income, disclosure and child support.

Practical Examples

A Parent's Income Increases

Suppose a parent pays $900 per month in child support based on an income of $55,000.

The parent's income later increases substantially, but the child support amount is never updated.

The recipient parent eventually learns about the increase and asks for updated financial disclosure.

Depending on the circumstances, the court may consider a retroactive increase.

A Parent Fails to Provide Tax Returns

Suppose a child support agreement requires annual financial disclosure, but the payor repeatedly fails to provide tax returns.

The recipient later discovers that the payor's income increased significantly during several of those years.

The lack of disclosure may become an important factor in determining the appropriate retroactive period.

A Parent Raises the Issue but Waits to Apply

Suppose a recipient tells the payor in writing that their income appears to have increased and that child support should be recalculated.

The parents discuss the issue for several years without reaching an agreement.

The recipient eventually makes a court application.

The date of the earlier communication may become important when determining effective notice and the appropriate period of retroactivity.

A Payor Experiences a Major Income Reduction

Suppose a payor loses their job and experiences a substantial and lasting reduction in income.

Instead of simply stopping payments, the payor provides financial disclosure and communicates the change to the recipient before taking steps to seek a variation.

The court may consider the timing and quality of that notice when determining whether a retroactive reduction is appropriate.

Common Mistakes to Avoid

1. Assuming the Three-Year Rule Is Absolute

The three-year period is a presumption, not an automatic limit in every case.

2. Waiting to Raise the Issue

A parent who believes child support is too low should generally address the issue promptly.

Delay can affect the court's assessment of retroactivity.

3. Failing to Keep Written Records

Important conversations about income and support should, where possible, be documented.

Written communications can help establish when an issue was raised.

4. Ignoring Financial Disclosure

Accurate financial information is central to calculating child support.

Failing to provide disclosure can make the dispute more complicated and may have legal consequences.

5. Assuming Retroactive Support Is Automatic

A court must determine whether a retroactive award is appropriate and how far back it should apply.

6. Using Current Income for Every Past Year

Retroactive support usually requires consideration of the parent's income during the relevant historical period.

7. Treating Retroactive Support and Arrears as the Same Thing

Existing unpaid support under an order is generally an arrears issue. Retroactive support can involve determining what should have been paid for an earlier period.

Understanding the distinction can be important when determining the appropriate legal process.

Costs and Timelines

The cost and timeline for a retroactive child support matter depend heavily on the circumstances.

Some cases may be resolved through financial disclosure and negotiation. Others require a court application and detailed historical income calculations.

Potential costs may include:

• legal fees for advice, negotiation or court proceedings;

• court filing fees where applicable;

• costs associated with serving documents;

• expenses for obtaining financial records; and

• other legal disbursements arising from the particular matter.

Cases involving self-employment, corporations, incomplete disclosure or disputed historical income can take considerably more time than straightforward cases involving salaried employment.

There is no single timeline for obtaining a retroactive child support order.

When Should You Speak With a Family Lawyer?

Legal advice can be particularly helpful if:

• you believe your child support should have been higher in previous years;

• the other parent's income has increased significantly;

• the other parent has failed to provide financial disclosure;

• you are seeking support for a period when no formal order existed;

• a significant amount of retroactive support may be owing;

• the payor is self-employed or owns a corporation;

• income has changed substantially;

• you have received a request for retroactive support;

• you are disputing the appropriate retroactive period;

• you believe the three-year presumptive period should not apply;

• the parties disagree about effective notice; or

• a court application has already been started.

A family lawyer can help assess the available evidence, identify the relevant income information and determine what legal arguments may apply.

How Bridgestone Law Can Help

Bridgestone Law assists individuals and families in Calgary and throughout Alberta with family-law matters, including child support and retroactive child support.

If you believe you may be owed retroactive child support, or if you have received a claim for retroactive support, Bridgestone Law can help you understand the legal issues and identify the appropriate next steps.

Depending on the circumstances, this may involve:

• reviewing existing child support orders or agreements;

• calculating guideline income;

• reviewing historical financial disclosure;

• determining the appropriate retroactive period;

• assessing effective notice;

• addressing disputed income;

• negotiating a resolution; or

• bringing or responding to a court application.

Retroactive child support can involve significant amounts and complicated historical financial information. Understanding the applicable rules early can help you make informed decisions about how to proceed.

Bridgestone Law assists clients with child support matters in Calgary and throughout Alberta.