Retroactive child support after age 18
August 16, 2019 By: Ira Marcovitch Read Time: 3 minutes
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I’m 18 and my dad never paid child support. I was wondering if I can sue him for the money?

The payment of child support is one of the most common areas of contention arising from the breakdown of a marriage or familial unit. In Ontario, child support is governed by a combination of the Divorce Act, the Family Law Act, and the Child Support Guidelines. 

While the common belief is that child support ends at 18, this is not always the case. In certain circumstances, parents can still be liable for child support after the age of 18:

  1. Where the child has a disability, such that they remain dependant on their parents and cannot gain employment that is sufficient to support themselves; or
  2. If they are enrolled in a full-time program of education. This means that the child is still enrolled in high school past their 18th birthday, or have enrolled in a full-time college or university program. There is a debate between judges as to whether students taking a ‘victory lap’ in high school would qualify for support and, if such is your case, you should speak to an experienced family law lawyer.

    In certain circumstances, parents can still be liable for child support after the age of 18.

It is also important to remember that after the age of 18, the child support tables no longer presumptively apply. Most judges will still use them as the starting point to determining the quantum of support; however, they are given more latitude to order an amount that suits the particular child’s circumstances.

If your father has never paid support, and you are still entitled to child support, you may be able to make a claim for retroactive support. However, once you are no longer eligible for support, many judges believe that they lose the jurisdiction to order retroactive support where there is no existing child support order in place. However, there are very limited situations in which a court has ordered retroactive support for a dependant no longer eligible for support:

  1. Where the application for retroactive support would have been brought within time but for blameworthy conduct on the part of the payor spouse;
  2. In variation proceedings where there is an existing order and an established support obligation under the Divorce Act
  3. In motion to change proceedings where there is an existing order and an established support obligation under the Family Law Act.

These categories are not fixed or definite, and a court has significant discretion whether to allow an ‘out of time’ retroactive support claim or not. Given your age, it is important to talk to a family law lawyer immediately to determine if a retroactive support claim can be made.

When a claim is made for retroactive support, there are four factors that the Supreme Court, in a case called DBS, said that judges must consider. These are: a) the reason for the recipient parent’s delay in claiming support; b) the conduct of the payor spouse; c) any hardship occasioned by a retroactive support order, and; d) the past and present circumstances of the child.

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 present and future child support (which is mandatory), a judge has discretion whether or not to order retroactive child support. It will depend on how strong an argument you can make based on the DBS factors. This requires intimate knowledge of the law, as well as experience in litigating these claims.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2019 Nelligan O’Brien Payne LLP.