The issue of retroactive child support is somewhat complex. Generally, orders of any kind in family court are only retroactive to the date the Applicant started court proceedings. This is intended to prevent situations where someone, many years after they thought matters were settled, is unexpectedly served with an application seeking a new order or a motion to change to an existing order that goes well into the past. There is an expectation that people with family court issues will move to address them in a timely manner.
There are, however, some exceptions to this general approach. In particular, because child support is seen to be the right of the child, there are some cases in which the court has awarded child support retroactive to a date well before the date on which support was applied for. And, in some circumstances, the court will allow retroactivity where one person had a good reason (for example, fear of the other person because of a history of abuse) not to start proceedings at the time of separation.
And, the courts have taken very different approaches to retroactivity in cases where the children for whom support is being sought are still children and cases where they are now adults.
Retroactive support for children who are still children
Both the Divorce Act and the Family Law Act grant the court jurisdiction to award retroactive child support. Specifically, section 34(1)(f) of the Family Law Act says that the court can make either an interim or final order for support to be paid “in respect of any period before the date of the order.”
There are a number of factors that favour awarding retroactive child support that have been applied by the court:
- Ongoing need of the child(ren) for support
- Ability to pay on the part of the non-custodial parent
- Blameworthy conduct (providing incomplete or incorrect financial information, for example) on the part of the non-custodial parent
- Need by the custodial parent to use savings or to borrow to compensate for the lack of child support
- A reason for the delay in bringing the child support application (this could, for example, be a history of abuse leading to fear on the part of the custodial parent)
Courts also consider factors that argue against awarding retroactive support. A significant and unexplained delay in starting the support application is one such factor. The court will also consider whether a retroactive order would create an unreasonable or unfair burden on the non-custodial parent as well as look at whether the only purpose of such an order would be to redistribute capital or award what is in effect spousal support, but in the guise of child support.
There is a considerable body of case law dealing with this issue. Where retroactive support has been awarded, the courts have said the following:
- Children’s needs cannot await the “whim or consensus of parents.” (Mannett v Mannett (1992) 111 N.S.R. (2d)
- “Where a payor parent is fully aware of their child support obligations, the mere passage of time, even if significant, will not act as a bar to the collection of child support arrears . . . The onus to prove financial inability rests on the payor parent.” (Smith v Smith (1999) Carswell (Ont. Gen. Div.)
- “As the right [to support] belongs to the child, it cannot be waived or bargained away by the custodial parent’s neglect, delay, or lack of diligence in enforcing the right.” (L.S. v E.P. (1999) 67 B.C.L.R. (3d) 254 (C.A.)
Retroactive support for children who are now adults
Perhaps the best-known case dealing with this issue is the 2002 case involving former Toronto mayor Mel Lastman. Mr. Lastman had had a lengthy extra-marital relationship in which he fathered two children. When those children were in their 40s, they and their mother brought a claim for retroactive child support against Mr. Lastman. The case made its way to the Ontario Court of Appeal, which rejected the claim on the basis that the children were grown and no longer “dependents” and that an order for retroactive support would be “inconsistent with the purpose of child support, which is to assist the custodial parent in meeting the day-to-day expenses of raising children.” (Louie et al v Lastman (2002), 29 R.F.L. (5th) 93)
There is little other case law on this matter, and none that contradicts this Ontario Court of Appeal decision, so it is safe to assume that retroactive support for adult children would very rarely be ordered, and any such decision would be very fact specific.