On January 1, 2012, new Child Support Guidelines came into effect in Ontario. These Guidelines calculate the amount of a child support payment by taking into account the income of the payor and the number of children who are to receive the financial support.

Currently, child support payments are determined in accordance with tables included in the Child Support Guidelines. The court may deviate from the prescribed amount in various situations. For further information on exceptional cases, please contact a Toronto divorce lawyer.

Retroactive Payment

Toronto Divorce lawyers are often asked: Can I retroactively ask for child support payments because the child’s other parent did not pay enough?

The answer is a tentative yes.

As demonstrated by recent case law, a parent may sue another parent for retroactive child support payments under specific circumstances. In 2006, the Supreme Court of Canada was faced with this very same question. The Court’s lengthy response outlines the basic principles upon which to base an award of retroactive child support.Toronto divorce lawyers refer to this pinnacle period in child support case law as the DBS cases.

Presently, the Guidelines allow for a claim for retroactive child support payments based specifically on the discrepancy of an increase in annual income and past child support payments. Therefore, a payor may be asked to pay what he or she ought to have paid in retrospect.

If you have not registered your child support order or agreement with the Family Responsibility Office, please confer with a Toronto divorce lawyer for instructions before proceeding with any action. Retroactive child support cannot be requested if the claimant never received any child support payment, or has never registered an informal agreement with the Family Responsibility Office.

A request for retroactive child support payment is multifaceted and complex. It is imperative to seek the advice of a Toronto divorce lawyer before pursuing such a claim. The court will take into account a variety of factors, especially the Separation Agreement and/or Child Support Order. For example, if either of these documents legally requires the payor to provide income tax returns or notices of assessment to the payee – and he or she failed to do so – an award for retroactive payments is very likely. On the other hand, if the payee knew about the payor’s increase in annual income, but did not promptly make a claim – an award for retroactive payments is less likely.

A Toronto divorce lawyer will assess where the onus lies and who is responsible for ensuring the monetary amount of child support payments are accurate and current. Like the Court, a Toronto divorce lawyer will contemplate various factors elucidated by the case law. When determining whether retroactive child support should be awarded, factors such as the child’s age, delay in making the claim, blameworthy conduct, hardship to the child, and hardship to the payor may be considered. A Toronto divorce lawyer will be cognizant that the underlying goal of all proceedings is in the best interests of the child. It is this principle that will also guide the Court’s ultimate decision.

It should be noted, that child support orders and agreements made after March 1, 2010 in Ontario include a mandatory obligation to exchange support information. Pursuant to section 24. 1 of the Guidelines, the payor and the recipient (if applicable) must provide updated income information annually. Documents such as tax returns or notice of assessment must be provided to the parties.  To ensure compliance with the Guidelines, discuss your responsibilities and liabilities with a Toronto divorce lawyer as promptly as possible.

Toronto divorce lawyers recognize that retroactive child support awards are informed by the principles outlined in the DBS cases, child support case law, the Guidelines, and the facts of each and every case. Before taking any legal action, it is highly recommended that one retain a Toronto divorce lawyer. Whether the issue can be settled in or out of court, retroactive payment is a composite matter.