When and in what amount will retroactive child or spousal support be ordered?

Should retroactive child or spousal support be ordered?

There are four factors to consider for retroactive child or spousal support:

1. A reasonable excuse for why support was not sought earlier

Certainty is important and the support seeker must have a reasonable excuse for why they did not seek support earlier. For instance, the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family, the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice.

2. Conduct of the payor parent

Courts take an expansive view of what constitutes blameworthy conduct. For instance, blameworthy conduct of the payor parent is anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support. A payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them.

3. Circumstances of the child [recipient parent in the case of spousal support]

A retroactive award is a poor substitute for an obligation that was unfulfilled at an earlier time. However, a child who is currently enjoying a relatively high standard of living may benefit less from a retroactive award than a child who is currently in need. It is also worth considering the child’s needs at the time the support should have been paid.

4. Hardship by a retroactive award

Retroactive awards are usually based on past income rather than present income. A judge may order retroactive awards as lump sums, periodic payments, or a combination of the two. If the payor has behaved in a blameworthy fashion, then avoiding hardship is less relevant.

From what date should retroactive support be ordered?

There are four choices of dates from which the award could be retroactively awarded:

1. The date when an application was made to a court;
2. The date when formal notice was given to the payor parent;
3. The date when effective notice was given to the payor parent; and,
4. The date when the amount of child support should have increased.

The date of effective notice is the general rule.  This date will usually signal an effort by the recipient parent to alter the child support situation. However, a prolonged period of inactivity after effective notice may indicate that the payor parent’s reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. It will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.

With that being said, when the payor parent engages in blameworthy conduct may cause the date from when increased support should have been paid to be the most appropriate date. Not disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of child support payable — is itself blameworthy conduct.

What quantum of retroactive support should be awarded?

The quantum of the retroactive award should be appropriate to the circumstances. Undue hardship of the payor may reduce a retroactive award. In addition, a court can reduce the quantum by changing the date of notice of from which retroactive support is owed. For instance, unreasonable delay after effective notice may cause it to be appropriate to exclude this period of unreasonable delay from the calculation of the award.

To learn more, contact the family lawyers at Krol & Krol Professional Corporation at 905.707.3370.