Retroactive Child Support

It is very common for a support recipient to request retroactive child support.  Since this issue is common and is raised frequently, it is helpful to review the leading case and factors that govern the issue.

In D.(S.P.) v. J.(L.S.), the Provincial Court of British Columbia dealt with the issue of awarding retroactive child support. The Court referred to the Supreme Court of Canada’s decision in S.(D.B.) v. G.(S.R.) when it rendered its decision to award child support retroactively. Given that the Supreme Court of Canada’s decision is fast approaching its 10^th anniversary, this is an opportune moment to highlight several important aspects of retroactive child support awards:

1. Retroactive awards should be decided on a case-by-case basis.
2. Child support is the right of the child and cannot be waived by the recipient parent.
3. Each parent’s behavior should be considered in balancing the competing factors for and against retroactive orders.
4. Delay in making an application for retroactive child support is consideration, but delay does not automatically rule out a retroactive order.
5. The present circumstances of the child must be considered in the exercise of the discretion to award retroactive child support.
6. If the court orders retroactive child support, the award should be retroactive to the date of effective notice by the recipient parent that child support should be paid or increased, but no more than three years in the past.
7. The “effective date” is the date when it was indicated to the payor parent that child support needs to be re-calculated. It does not require a recipient to take legal action.
8. Blameworthy conduct will move the presumptive date of retroactivity to the time when circumstances changed materially.
9. In fixing the amount of retroactive child support, the Federal Child Support Guidelines should generally be followed.