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Parents often have questions about retroactive child support. Following a couple’s separation or divorce, parents have an obligation to pay child support in accordance with their income regardless of whether a court order has been made. If the payor parent fails to live up to this obligation by either not paying child support or paying too little, the recipient parent may ask the court to make an order for retroactive child support. Retroactive child support is past child support which one spouse should have paid during the past but did not.
In 2006, the Supreme Court of Canada released the decision in DBS v SRG; LJW v TAR; Henry v Henry; Hiemstra v Hiemstra, 2006 SCC 37 (Hiemstra), which set out the test for determining whether retroactive child support payments should be ordered, for what period of time and in what amount. The Hiemstra decision has been cited in over 1500 subsequent decisions and remains the leading case today. The Supreme Court held that in determining whether to make a retroactive award, a court should strive for a holistic view of the matter and decide each case on the basis of the facts. The court must always attempt to balance the considerations of fairness to the children and fairness to the payor parent in each case. The case highlights several important factors that a court will look at when determining whether retroactive child support should be awarded, such as:
- The child’s age
- The delay in making the claim for retroactive support;
- If there was any blameworthy conduct on the part of either parent
- Any hardship to the child as a result of the non-payment
- Any hardship to the payor parent if payment is made
A court may order retroactive child support if no child support order has been made or where a court order for child support already exists but the income of the payor parent has increased and the existing order does not reflect the increase. If the court decides to make an order for retroactive child support, it will be retroactive to the date when the recipient parent gave the payor parent notice that they intended to seek an increase in support payments.
If you have questions about child support, please contact experienced family lawyer Jason P. Howie, online or at 519.973.1500.
To read the full Hiemstra decision, click here.
