Child support can be a complex, daunting and ongoing issue for a parent, regardless of whether they are the payor or recipient. Each parent has their own concerns about the future and it can be anxiety-provoking thinking about the financial arrangements and obligation in regards to your children.
In this blog post, we talk about this issue of retroactive child support from the point of view of both parents - the payor parent who is paying child support, and the parent receiving child support.
What is a retroactive child support claim?
Retroactive child support is a bit misleading as it implies that the payor hasn’t been fulfilling their legal support obligations, which may not be the case.
More often, the payor has been dutifully paying the support that was agreed upon or assigned by the court, but has not increased their support payments when their income increased.
Most often, retroactive child support is “seeking to hold the payor accountable for the obligations that would have been associated with his or her income during the period in question had support been calculated afresh at that time.” Justice.gc.ca
This becomes a matter for the court to determine if they can order a retroactive assessment of support and under what circumstances.
How far back can a retroactive child support claim go?
There are several factors the court will look at to decide whether a retroactive claim should be allowed which includes:
- Why was there a delay in claiming?
- Is there any blame to be attributed?
- Would the payor parent suffer financial hardship?
- Have the children suffered from the lack of support?
Once it’s been decided that a retroactive claim will be allowed, then the period of time will be determined. Generally, the claim should not exceed 3 years however there could be extenuating circumstances. Arrange a consultation with your family lawyer to discuss retroactive child support and see whether these might apply in your case.
How to claim retroactive child support?
If you want to make a retroactive child support claim you should get legal advice from a Family Law expert first. To help you for your first meeting, make sure you have everything documented, if you can. You can request that the payer provide information like tax returns and other income-related documents, to help you establish if you do have a claim.
Bringing your claim sooner, rather than later will generally help your claim. Speak to our expert legal team about establishing your claim.
How can you avoid or dispute a retroactive child support claim?
If you are the payor of child support and you’re fulfilling your child support obligations you might feel confident that no claim can be brought towards you for additional child support. This may not be the case.
First, if you’re still in the divorce process, talk to your divorce lawyer about your child support obligations in situations where you may see an increase or decrease in your income. Planning ahead can ensure that you’re less susceptible to surprise re-evaluations of your support payments.
Second, be transparent about your finances. If you try to avoid disclosing some of your financial information, you run the real risk of a future retroactive claim. The court could take a dim view of your attempted avoidance which could cost you more in the long run.
Third, always seek legal advice if you’re unsure. You may have options available to you that can avoid going to court with a retroactive child support claim.
- How is child support calculated in Alberta?
- How to calculate child support for shared parenting.
- Spousal support in an economic downturn.
If you have a child support issue that you’d like to discuss, please contact Richmond Tymchuk Family Law LLP.