Source: https://www.crossroadslaw.ca/blog/reaching-back-for-retroactive-child-support/

Retroactive support issues are often reported by our clients. Typically, they fall under the following three scenarios:

• Not being paid the full amount;
• Not being paid at all; and
• Being paid inconsistently.

In each scenario, the Court generally permits back-tracking 3 years from the date a spouse is made aware that child support is inadequate and/or not being paid. And though it may take a while to appear before the bench and argue your case, the starting date is critical.

Factors the Court Considers

The Supreme Court of Canada has created a list of factors for consideration when examining retroactive support:

1. the reasons for the recipient's delay in asking for an order updating the amount of child support;
2. any misconduct on the part of the payor, such as hiding income, lying about income or pressuring the recipient;
3. any hardship suffered by the children as a result of the payor's inadequate support payments; and,
4. any hardship that the payor might suffer if forced to pay a retroactive child support order.

Child Support vs. Spousal Support – They are not treated the same

In most circumstances, and more so than spousal support, child support is more likely to be paid in full for the period in which it is retroactively claimed. The reason? Child support is considered “automatic” by the Court – it is the child’s right to receive it, and the parent has a duty to pay regardless of whether it is requested by the recipient party. On the contrary, spousal support may not imbue the same obligation without an agreement or a determination by the Court, although the court often awards retroactive spousal support.

Tips for a Retroactive Claim

How can you strengthen your claim for retroactive support?

• Document your request in an e-mail or a letter. Texts are admissible, but a formal request is ideal.
• Do not let months pass by without action. Waiting can jeopardize your case for retroactive child support.
• Bring forward a court application. An interim order (one that is temporary) may not address all of the issues, but it will put a child support order in place, helping to solidify the notice date, and initiate the quick provision of support.
• Make requests for tax returns and other income-related documents. These documents are imperative to the calculation of retroactive support.

The family lawyers at Crossroads Law have been successful in winning child support for cases going back 10 years or more. Speak to a lawyer in our free 20 minute consult to get the process started.