Misrepresentation and Retroactive Child Support – how far back can you go?

What happens if your former spouse misrepresented income when previously determining child support obligations?

How many years back can you claim retroactive child support or a variation in support?

In Ontario, child support is governed by a combination of the Divorce Act, the Family Law Act, and the Child Support Guidelines. Given that navigating this legislation can be complicated, it is always recommended that you speak with an experienced family law lawyer before making a child support claim. If you are faced with a child support claim, it is also important to talk to an experienced family law lawyer to ensure that you are paying what is legally required and what your child needs.

In Ontario, the Court of Appeal recently clarified that parents can claim retroactive child support even after the child no longer qualifies as a ‘dependant child’ under the Family Law Act or a ‘child of the marriage’ under the Divorce Act. However, where a parent becomes aware that a payor parent was paying less support than they should have, it is important to bring forward a claim for retroactive support as soon as possible.

When a parent makes a claim for child support there are four general factors that judges must consider. These are:

• a) the reason for the recipient parent’s delay, if any, in claiming retroactive support;
• b) the conduct of the payor spouse;
• c) any hardship that could be occasioned by a retroactive support order (or lack thereof), and;
• d) the past and present circumstances of the child.

Courts have held that generally, it will not be appropriate to order support retroactive more than three years from the date of ‘effective notice’ – the date on which a recipient notifies the payor that they are making a claim for retroactive support. However, if a child support payor actively misrepresented their income, the Court can order retroactive support as far back as there was misrepresentation.

If you are planning to make a claim for retroactive child support, it is very important that you speak with an experienced family law lawyer. Unlike with ongoing child support (which Courts have very little discretion with), a judge has wider discretion whether or not to order retroactive child support. It will depend on how strong an argument you can make in light of the four factors in noted above. This requires intimate knowledge of the law, as well as experience in litigating these claims.

If you need assistance with a child support issue, contact our Family Law group.