In September 2020, the Supreme Court of Canada ruled that retroactive child support may be payable even if the child has reached the age of majority and is an adult at the time the party makes the claim for support. Retroactive child support is the right of the child.
If you have questions about ongoing or retroactive child support, our Calgary divorce lawyers, child support lawyers, and mediators are here to help. Connect with us today and we can ensure you know your legal rights and obligations when determining retroactive child support.
What is Retroactive Child Support and Why Does it Matter?
Retroactive child support refers to monies owed by a party on a retroactive basis. This could be because they were not paying any support following separation or they were not paying the correct amount of child support pursuant to the Federal Child Support Guidelines.
Typically, it is determined that retroactive child support claims can go back three years. However, this is a grey area and open to interpretation of the Courts as child support is the right of the child and there are many factors that contribute to the amount and duration of child support payable. For example, if one party misrepresents their income or causes the other parent to feel threatened by any means if they pursue child support claims, the court may order retroactive child support further back than three years – even if the child is an adult at the time the claim is being made.
Michel v Graydon: Determining Factors in the Supreme Court Ruling on Retroactive Child Support
The parties in this case lived in a common-law relationship for 4 years and had a son during their partnership. Upon the breakdown of their relationship, they executed a Separation Agreement which laid out the terms of child support. The child lived with the mother and as such, the father was paying child support on a monthly basis as per the terms of the Agreement.
However, in the Agreement, the father’s income was not accurate and was much less than his true income. As years passed, his income became even greater, resulting in a large discrepancy in his child support payments and guideline income. The mother received financial assistance from the government and as a result, the child support was assigned to the Minister under the Employment Assistance Act who never applied to review the terms of the child support payable.
The Outcome of Improper Disclosure and Blameworthy Conduct
In 2015, the mother made an application to address the issue of child support not being paid in accordance with the father’s initially inaccurate and since increased income. At the time she made this application, the child was considered an adult and initially, her claim to vary support was rejected by the courts on this basis.
After multiple court hearings and appeals, this matter was heard by the Supreme Court of Canada which ordered retroactive child support to be paid in the amount of $23,000. The premise of the court ordering the retroactive child support was that the father engaged in blameworthy conduct by failing to accurately disclose his income when he signed the Separation Agreement.
Frequently Asked Questions About Retroactive Child Support
Ques – Is retroactive child support the same as arrears?
Ans – No, retroactive child support and arrears refer to different obligations. A recipient spouse can order retroactive child support that was not previously agreed to, while arrears occur when the payor has not met their obligations according to a previous agreement or court order in place for child support. Essentially, arrears is a debt. With retroactive child support, the payor spouse is not in breach of any existing order or agreement.
Ques – What happens to arrears when the child is 18?
Ans – Arrears do not disappear when the child turns 18 and are still enforceable to be paid in full.
Ques – How far back can retroactive child support be claimed?
Ans – Retroactive child support can go back a maximum of 3 years from when the support is requested. However, the Supreme Court can push this back further if the payor was involved in blameworthy conduct such as withholding accurate information about their income.
Ques – How do I get my child support arrears dismissed?
Ans – Child support arrears may be dismissed if the payor’s circumstances have changed significantly with valid proof, including long-term change in income, extraordinary expenses incurred for the children, costs for visitation with their children, or the number of dependent children has changed. If the payor can provide full financial disclosure, a judge may consider the payor’s ability to make payments.
Ques – At what age does child maintenance stop?
Ans – This answer depends on the details of the court order as some include specific direction on when support ends. Even if the child becomes an adult, maintenance may still be payable according to the circumstances. An example of a specific end to child maintenance may be when the child is no longer in school, when the child reaches the age of 18, or when the child marries, to name a few. In Alberta, the Maintenance Enforcement Program (MEP) follows the direction of the court order.