Retroactive Child Support: How Far Back Can You Go?
Generally speaking, child support can be awarded retroactively to the date when the recipient can prove he or she first asked for child support. You must be able to prove that you asked for child support, an increase in child support, or at least disclosure of financial information. This is another reason why it is a good idea to communicate with your former spouse via email and to keep good records.
If you are unable to prove that you requested child support or financial disclosure, the court may award child support from the date that you started court proceedings. This is usually the case where the date of separation and the commencement of court proceedings are closer together.
If the date of separation and the commencement of court proceedings are farther apart, the Supreme Court of Canada has said that retroactive child support can be awarded for a period before the support recipient made a request (or started court proceedings). Since the Court wanted to limit the financial burden on support payors in cases where retroactive support is ordered, the Court limited claims for retroactive support to three years prior to the request being made.
Child support may be ordered for more than three years retroactively if the payor actively deceived the support recipient regarding how much he/she was making. For example, the support payor may have attempted to convince the support recipient that he/she was unemployed or did not receive any increase in income, when in fact income went up substantially. If a support payor’s income goes up substantially he/she is presumed to be aware of the fact that his/her support obligations have increased and there is a corresponding obligation to notify the support recipient and increase support. A failure to notify and increase payments may lead to a retroactive award beyond three years.