Retroactive Child Support in BC: What You Need to Know

Parents have a legal obligation to provide a fair share of financial support to raise their children after they separate or divorce. Retroactive child support is unpaid “historical” child support that is owing to a parent.

Unpaid support is payable in British Columbia in three main scenarios:

1. A child support order is in place but the payor parent has not been making payments as required.
2. A child support order is in place but the payor parent’s income went up without a word or any adjustment to the order.
3. No child support order is in place and one parent has been covering the costs of raising the child.

BC family law treats each scenario differently in terms of how “automatic” the retroactive payment is.

Here’s what you need to know about how far you can look back to claim retroactive child support and what the British Columbia courts (and the Supreme Court of Canada) have said in recent cases.

Why does retroactive child support exist in British Columbia?

In British Columbia, whether you are using the Family Law Act (provincial) or the Divorce Act (federal), the courts view child support as the right of the child. 

If one parent has not paid their fair share of support, this is viewed as depriving the child of the legal right to support.

Retroactive awards ensure that children receive the standard of living they are entitled to, based on the parents’ income.

Every parent not only has a legal obligation to pay child support but also to inform the other parent about an increase in income, so that child support can be calculated properly. This was reinforced by the Colucci v. Colucci (2021) case.

Following up about retroactive child support usually involves the BC Family Maintenance Agency (BCFMA), previously the FMEP. This is a free governmental service to assist parents who are owed retroactive child support. A retroactive award often results in a lump sum payment.

What factors do the courts consider in BC retroactive child support cases?

In the landmark Supreme Court of Canada case (D.B.S. v. S.R.G.), four main criteria are set by the BC courts when assessing whether retroactive child support is owed by a parent:

1. Reason for the delay: Why did the recipient wait to ask?
2. Conduct of the payor parent: Did they hide income or mislead the other parent?
3. Child’s circumstances: How will this money benefit the child now?
4. Hardship for the payor parent: Will a massive lump-sum payment cause financial ruin?

Hardship for the payor parent could be a factor if the recipient of support waits for many months or even years to claim retroactive support. This can create problems both for the child, who is deprived of support, and the payor parent who might suddenly be presented with a huge retroactive support bill.

It is advisable, then, to address non-payment of support promptly with the non-paying parent. If discussions don’t resolve the matter, contact a family lawyer to help you follow up with the court or BCFMA.

The three scenarios where retroactive child support may be awarded in BC

Let’s take a closer look at the three main scenarios in which unpaid child support may be recovered:

1. The order exists but payments have stopped

This is technically “arrears”, not “retroactive” support in the strictest sense.

Once an order is made, it is a debt. A parent does not usually need a new court order to prove the money is owed. The existing child support order can be enforced through the BCFMA, which has the power to garnish wages, seize tax refunds, or even suspend driver’s licenses to recover these funds.

2. The order exists but the payor parent’s income increased

This is a common retroactive support scenario.

BC law (and the 2021 SCC Colucci decision) makes it clear that a payor parent has a proactive duty to disclose income increases.

If a parent got a raise two years ago but does not declare it to the recipient parent, the court can “reach back” two years and order a lump sum payment to bridge the gap between what was paid and what should have been paid, according to the BC Child Support Guidelines.

Many BC orders now include “annual flare” clauses or requirements for annual exchange of tax returns. Under the Family Law Act, some adjustments can be handled administratively without a full “retroactive” court hearing if the original order was drafted to allow for it.

3. No order was ever in place

If parents split and never went to court or signed a formal agreement, a recipient can still apply for support dating back to when they first “effectively noticed” the other parent that support was needed.

Effective notice doesn’t require a lawyer’s letter. It can be as simple as a text or email saying, “Your income is up, we need to adjust support.”

However, courts will generally only go back three years unless there is “blameworthy conduct.”

When does the “three-year rule” NOT apply?

Examples of “blameworthy conduct” include:

• Hiding assets (including intentionally hiding a raise).
• Intimidating behaviour toward the other parent.

In such cases, the courts have the power to go back much further than three years when ordering retroactive child support.

Can you apply for retroactive child support after the child becomes an adult?

Before the case of Michel v. Graydon (2020), it was very difficult to ask for retroactive support once a child became an adult. 

Now, in BC, you can apply for these “historical” payments even after the child has finished school, provided the debt was fair and owed at the time.

How to prepare your Langley retroactive child support claim

To request assistance from the BC Family Maintenance Agency in claiming retroactive child support, you first need a court order or a written agreement.

A family lawyer can help you obtain a court order, if necessary. This must be registered with the BCFMA, after which the program can seek a retroactive support payment from the non-paying parent by:

• Taking away the passport and driver’s license.
• Garnishing wages.
• Confiscating assets.
• Seizing tax refunds.
• The use of liens on properties.
• The possibility of jail.

If you are in the Langley area of British Columbia and need legal assistance with child support, DSG Family Law offers a free initial consultation to assess your situation and outline your legal options. Speak with a family lawyer today.