Is the Child Eligible for a Retroactive Child Support Order and What is the date of Retroactive Child Support Award?
Retroactive child support refers to child support for the period during which the payor parent should have been paying support but did not or paid less than what the recipient parent was entitled to pursuant to the federal Child Support Guidelines.
You may be eligible to receive retroactive child support from the date on which the paying parent received effective notice. Effective notice does not amount to the recipient parent taking any legal action. It is sufficient that the recipient parent asks for financial support for the child(ren), and if child support is being paid, ask that the amount be negotiated.
Retroactive child support is a discretionary award and the court looks at several factors to determine whether a retroactive child support order is warranted in a given case.
Factors the court will consider:
- Circumstances surrounding the delay
If there is a significant delay in seeking child support, the recipient parent must provide a reasonable excuse for such delay. As per the case law in British Columbia, lack of emotional or financial means to bring an application has been deemed to be a reasonable justification for delay.
- Payor parent’s conduct
Court will generally award retroactive child support in cases where the payor parent has knowingly avoided his or his obligation to pay appropriate child support or paid significantly less than required under the Child Support Guidelines. On the other hand, where the payor parent has contributed towards expenses that go beyond the statutory requirement, he or she has contributed to support indirectly and in such cases retroactive child support may not be warranted.
- Hardship to the payor parent
Retroactive child support may not be awarded if it would cause undue hardship to the payor parent. For instance, the payor parent has new family obligations or that income earned during the retroactive period is no longer available.
- The child’s circumstances
Retroactive child support is more likely to be granted in cases where the children’s basic necessities are not being met. The child(ren)’s needs and standard of living is based on the parent’s income.