Retroactive Child Support in BC: Claiming or Facing Back Support

Maybe you have learned that your former partner earned far more than they told you, or support was never sorted out after you separated. Or you are the parent being asked to pay for years that have already gone by.

Retroactive child support is possible in BC, but it is not automatic. How far back it reaches depends on notice, delay, disclosure and conduct, so the timing of what you do next matters.

What retroactive child support means

Retroactive child support is support ordered for a period that has already passed. It usually comes up in one of three situations:

• No support was paid at all after separation, and the parent with the child applies for the first time.
• Support was paid, but too little, because the paying parent's income went up and the amount never changed.
• The paying parent's income went down, and that parent asks to reduce support, or the arrears that built up, back to an earlier date.

Child support in BC is set under the child support guidelines, which tie the amount to the paying parent's income. Our guide to how child support is calculated in BC explains the table amounts. Retroactive claims arise because incomes change and orders and agreements do not adjust on their own.

What the Family Law Act allows

Several sections of BC's Family Law Act work together here:

• Section 149 lets a court order a parent or guardian to pay child support, and section 150 requires the amount to be set under the child support guidelines, with limited exceptions.
• Section 170(b) allows a support order to cover a period before the date the application was made.
• Section 152 allows a court to change, suspend or terminate an existing child support order "prospectively or retroactively". Before doing so, the court must be satisfied that there has been a change in circumstances, that substantial new evidence has become available, or that a lack of financial disclosure by a party was discovered after the last order.

Unlike claims for spousal support and property division, a claim for child support is not on the list of claims in section 198(2) of the Act that must be started within two years of separation or divorce. That does not mean timing is irrelevant. As the next section explains, delay is one of the main things a court weighs.

How courts decide: the Supreme Court of Canada framework

Retroactive support is discretionary. The key decision is D.B.S. v. S.R.G., 2006 SCC 37. It set out the factors a court considers:

• whether the recipient had a reasonable excuse for not asking sooner;
• the paying parent's conduct, including any blameworthy conduct such as hiding income increases;
• the past and present circumstances of the child; and
• whether a retroactive award would cause hardship.

D.B.S. also set a general rule about how far back an award reaches. Support is usually ordered back to the date of "effective notice", meaning when the recipient raised the issue with the paying parent, rather than the date a court application was filed. It said it would usually be inappropriate to go back more than three years before formal notice, but a court may reach further where the paying parent's blameworthy conduct is involved.

Michel v. Graydon: a BC case

In Michel v. Graydon, 2020 SCC 24, the Supreme Court of Canada considered section 152 of BC's Family Law Act. It held that the section allows a court to vary child support retroactively even after the child is no longer a "child" and the order has expired. It restored the hearing judge's order for retroactive support, in which the paying parent's failure to disclose income increases had been treated as blameworthy conduct and the recipient's delay had been found reasonable.

Colucci v. Colucci: when the payor wants a reduction

Colucci v. Colucci, 2021 SCC 24, a Divorce Act case, dealt with a paying parent who asked to reduce support retroactively and cancel arrears. The Court adapted the D.B.S. approach, with a presumption that a decrease starts from the date of effective notice, up to three years before formal notice. It also stressed that full and frank financial disclosure is central, and it treated cancelling arrears because of a current inability to pay as a last resort.

If you are claiming back support

• Raise it in writing. Effective notice matters. A clear written request for updated income information and adjusted support helps show when you first raised the issue, which can affect how far back a later award reaches.
• Ask for disclosure. Income tax returns and notices of assessment for recent years are usually the starting point. Under section 213 of the Family Law Act, a court can draw an adverse inference, including attributing income, against a party who does not disclose or gives misleading information.
• Do not wait without reason. Delay is weighed. If there was a reason you did not act sooner, such as fear of conflict or a lack of information, keep a record of it.

If you are facing a claim

• Gather your income history for the period claimed, including any years when income fell.
• Look at what you disclosed and when. The cases treat a failure to share income increases seriously. Prompt, complete disclosure now is better than disclosure ordered later.
• Think about payment terms. If a retroactive amount is likely, how it is paid can be part of the discussion.

If your income has dropped and you need to change an existing order going forward, our article on changing a child support order in BC covers the process.

Owed back support, or facing a claim? Get the timing assessed early

Our family lawyers can review the income history and disclosure on both sides, explain how the Supreme Court of Canada's framework is likely to apply, and prepare or respond to a claim for retroactive support.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.