Retroactive Child Support
Because child support is the right of the child courts can act to protect this right when parents have failed to ensure that the right amount of support is being paid. Both parents have obligations to ensure that child support is being paid and that enough child support is being paid.
Retroactive child support is a complex subject and the following information is intended to provide an overview only. Parents considering an application for retroactive support should consult a lawyer.
The courts will consider certain factors when deciding whether to order retroactive child support.
Reason for Delay
The court will consider why a child support order was not sought earlier and whether the delay was justified. Overall the court will consider if the delay was understandable. Certain factors may justify a delay such as:
- Fears about the other parent being vindictive.
- A parent lacking the financial or emotional means to apply for support.
- A parent being given inadequate legal advice.
How the Other Parent has Acted
The court wil consider how the parent who should have been paying support has behaved. Retroactive support can be ordered when the paying parents has done things such as:
- hiding income increases
- intimidating the other parent to stop them from making an application
- misleading the other parent into thinking they are getting the right amount
- consciously choosing to ignore obligation to provide support
Circumstances of the Child
The court will consider the present and past circumstances of the child including needs of the child of the child then and now. If the child did not face hardship because the parent not receiving support made sacrifices, retroactive support can still be ordered.
Hardship to the parent who has to pay retroactive support cannot always be avoided. It will be less of a factor if the parent was deliberately avoiding paying support.
Hardship to the child who did not receive support and to the parent who should have been paid support are also considered.
A general rule is that the court will go back to the date the parent was notified that they should be paying child support as long as it was not more than 3 years ago. The parent is considered notified if the topic was brought up. However, after this discussions should move forward and if the parent still refuses to pay legal action should be considered.
In some cases the court could order payments going back to when child support payments should have started. For example, if the parent who should have been paying deliberately ignored their obligations.