Retroactive Child Support Guidelines in Ontario

Child support in Ontario is the right of the child. If your ex-spouse has not been paying the requisite support for months or even years, your child is missing out.

Did you know that you have the right to claim retroactive child support to claw back the amounts your child should have benefited from?

Doing so can greatly ease the financial burden, as well as hold your ex accountable. In some cases, parents can receive several years’ worth of support, amounting to a significant sum.

Let’s look at how retroactive child support works and what you need to look out for to claim the full amount your child is entitled to.

The usual reasons why a parent may underpay or not pay support in Ontario range from innocent administrative delays to “blameworthy conduct” that the courts take seriously.

The main reasons are:

• Financial circumstances:
  • Income fluctuations due to job loss, illness, or injury, making the original court order or agreement impossible to meet.
  • Underreported income: A parent may receive a raise, bonus, or new job but fail to update their support payments according to the Child Support Guidelines.
  • Business income complexity: Mistakes by self-employed parents when calculating “guideline income”.
  • Prioritizing other debts: A parent may be overwhelmed by high levels of debt.
• Conduct and communication issues:
  • Lack of financial disclosure: A parent’s failure to provide annual tax returns or notices of assessment, as required by law.
  • “Blameworthy conduct”: Parents who actively hide income, intimidate the other parent into not seeking support, or prioritize their own lifestyle over the child’s needs.
  • Informal agreements: Parents often make “kitchen table” deals to pay a lower amount, which may be legally unenforceable.
  • Assumed compliance: A parent may continue paying the same amount for years, incorrectly assuming the old order still applies even if their income has doubled.
• Legal exemptions and shared costs:
  • Undue hardship: A parent may not pay the full amount because they have a legal duty to support a second family or a new child.
  • Shared parenting time: If a child starts to spend at least 40% of their time with each parent, the support amount should be recalculated but sometimes it isn’t.
  • Section 7 expense disputes: Disagreements over what constitutes “extraordinary expenses” can lead to one parent refusing to pay their proportionate share.
  • Step-parent status: A step-parent may stop paying under the mistaken belief that the biological parent should automatically be solely responsible.

Standardly, in Ontario, parents can claim up to three years of retroactive child support. This protects the paying parent from unlimited liability and is calculated from the date of “effective notice” (when the other parent is made aware of the claim).

However, judges can exercise discretion and will consider the specific circumstances of the case before determining an award amount.

Influencing factors include:

• The date of separation of the parents: This is when the financial support obligations started.
• The date that a parent’s income increased: When the paying parent’s finances improved (resulting in a larger support obligation).
• The child’s birth: For cases involving paternity establishment.
• The original order date: For child support modification applications.
• The effective notice date: When increased support was first requested.

Your child support lawyer can outline precisely what you can claim.

Can “blameworthy conduct” extend retroactive child support in Ontario?

Yes, the Ontario courts have the powers not only to order the payment of unpaid child support but also to punish parents who deliberately avoid paying it.

The primary way to do this is by extending retroactive periods beyond the standard three-year maximum period, sometimes by many years.

In Ontario, blameworthy conduct includes:

• Moving without notice: Disappearing to avoid paying support obligations.
• Hiding income: Underreporting earnings or business income.
• Concealing assets: Transferring property to avoid support.
• Failing to disclose income information: This is required by law (The Supreme Court ruled in 2021 that payors have an ongoing obligation to disclose income increases).
• Intimidating the other parent: E.g., threatening litigation to discourage claims.
• Deliberate unemployment or underemployment: Quitting jobs to avoid payments.

Child support claims can be sensitive matters for all concerned. Parents are expected to act promptly if child support is not paid, especially if the child suffers because of it.

Simply forgetting to act may not be a valid excuse but the Ontario courts do permit a range of grounds for delaying retroactive child support applications, including:

• Fear of violence: A history of domestic abuse can cause delays.
• Informal arrangements: “Kitchen” table arrangements without court orders may provide intermittent support.
• Reliance on promises: The ex-spouse may consistently break promises to “sort it out”.
• Financial inability: The cost of legal representation may prevent action.
• Lack of legal knowledge: Some parents do not understand their legal rights.
• Protecting emotional health: Avoiding conflict during a breakup is often prioritized.
• Immigration concerns: Fear of status implications can delay action.

To calculate retroactive support, the Ontario courts must determine the appropriate support levels for each period in question, considering:

• Income levels from tax returns and employment records for the relevant years.
• Child-related expenses (extraordinary costs) during the retroactive period.
• Guideline amounts from the Child Support Guidelines applicable to these specific periods.

If previous payments, shared custody arrangements, and multiple children must be factored in, the calculation can become extremely complex.

Then there is interest to consider. Ontario applies a fluctuating annual interest on unpaid support. So, a $20,000 retroactive award from three years ago becomes approximately $22,400 with a 4% interest rate applied.

Your child’s needs are the single biggest factor in retroactive child support decisions by the Ontario courts.

If you provide evidence that the child has suffered hardship during the period in question, you will have a strong case for “unmet needs” that can extend retroactive awards beyond the standard three years.

Work with your child support lawyer to gather documentary evidence of the following to potentially boost your claim:

• Instability, especially through frequent moves or inadequate accommodation.
• Unmet medical needs, such as untreated conditions.
• Nutritional deficiency, such as meal skipping.
• Educational deficiencies, due to the inability to afford tutoring or activities.
• Social isolation, from missing extracurricular activities.
• Unsatisfactory clothing, due to a lack of finances.

Such evidence can counter claims of “hardship” by an ex-spouse. This claim is often used as a defense to the non-payment of child support and retroactive child support awards.

Courts will examine these claims and try to avoid a payment structure that would cause hardship to the payor.

However, the more evidence you can provide to counter such hardship claims, the stronger your case will be. Delaying or being inadequately prepared for a retroactive support application can unfairly penalize your child and increase your financial burden.

It is essential to act promptly by providing notice to your ex-spouse and beginning the process of gathering evidence to support your claim as soon as possible.

For assistance with a retroactive child support application in Mississauga, consult with an experienced family lawyer at Amiri Family Law. Book a consultation for advice on your legal options.