After a divorce, child support is taken very seriously by the court, as it is the right of the child. In some cases, if the payor has yet to make sufficient child support payments, they may be required to pay child support retroactively for the years or months they did not pay or paid an amount below the appropriate amount based on their income. Even if the payor’s income has changed in the current circumstance, this does not release them from the responsibility to pay child support based on their income in the past. Therefore, accurately determining their income is very important to determine the appropriate amount of child support. In some cases, this may be difficult if there is inadequate disclosure.

This post will discuss the factors the court will consider when deciding whether to grant retroactive child support. Notably, even if a payor has paid some child support in the past, their conduct may still be considered blameworthy if they are underpaid or paid an amount based on a lower income than their actual income. This post will examine the case Yu v Zhu, 2024 ABKB 154, in which the court found retroactive child support appropriate. In particular, the payor parent had paid some child support but was required to pay more, as his non-taxable income was to be considered a higher amount. This post will provide key takeaways for parties seeking to understand when retroactive child support may be ordered in their divorce case.

When Will Retroactive Child Support Be Granted?

Retroactive child support will be granted based on several factors, including the following:

a)     whether there was a reasonable delay in seeking child support;

b)    the conduct of the payor parent;

c)     the circumstances of the children; and

d)    whether the retroactive child support would cause hardship

These factors will be considered together to determine if retroactive child support is appropriate. None of the factors alone would determine the outcome. Each factor is discussed in more detail below.

Reasonable Delay for Seeking Child Support

The court will consider the recipient parent’s reason for not seeking child support earlier. It would not be a compelling case for the recipient parent to state that they chose not to seek child support until much later. However, if a party was reasonably waiting to reconcile or settle issues outside of court, it may be considered a valid reason for the delay in seeking child support. The court will also look to whether the recipient parent pursued child support in other ways, such as through an agreement, even if they did not make a court application for child support.

Some examples of a reasonable delay would be if the recipient parent were pressured not to raise child support concerns with the payor, such as due to family violence. Also, the recipient may have reasonably delayed seeking child support if they did not have the financial resources to pursue the matter in court with a lawyer.

Conduct of the Payor Parent

The payor parent’s conduct will also be considered. If their conduct is found to be blameworthy, this will be a factor in favour of granting retroactive child support.

Generally, blameworthy conduct occurs when a party prioritizes their interests over the child’s right to support. For example, blameworthy conduct can include the payor’s failure to disclose their finances to determine their income for calculating child support. Sometimes, a payor may also engage in blameworthy conduct if they report an inaccurate income. If the parent paid some child support in the past, this may be a factor against granting retroactive child support. However, in a more recent case, Yu v. Zhu, as discussed below, the court still found that the payor’s conduct was blameworthy even though he had paid some child support in the past.

Another form of blameworthy conduct includes pressuring or intimidating the other party not to pursue child support.

The payor parent’s conduct is also relevant to how far back retroactive child support payments should go. If the payor engaged in blameworthy conduct, retroactive support may go back further than they received effective notice of their child support obligations. In particular, it may go back to when the circumstances materially changed so that child support was to be paid or increased, such as through a change in parenting time arrangements or the payor’s income.

Circumstances of the Children

Also, the court will look at the children’s circumstances and if they need the calculated amount of support. The court will consider the loss of benefits experienced by the children as the result of the payor’s failure to pay adequate child support.

Would the Retroactive Award Cause Hardship?

Another factor is whether the retroactive child support if granted, would cause hardship for the payor. In many cases, the payor’s circumstances may have changed greatly, so their income may be higher or lower than in the past. If their income is currently lower than their income in the past, the payor may have difficulty paying the full amount of retroactive child support owed, which can end up being thousands of dollars. The court will consider if the amount should be granted or lowered if it would cause hardship for the payor. However, this factor is difficult to establish as child support is the right of the child, which the court generally upholds.

Payor Parent’s Conduct Blameworthy for Delaying Child Support, Paying Minimal Amounts

In the Yu case, the wife sought retroactive child support from 2021 to 2024. In 2018, the parties received an interim order that the husband pay child support based on the payor’s income of $60,000. The wife did not seek a variation of child support until this case.

In this case, the court found that the wife’s delay was not unreasonable because she was waiting to see if the parties could reconcile before taking any further steps in seeking child support.

The husband had made voluntary child support payments in 2017 and made one payment in 2018. He also made consistent payments from 2019 up to the trial date.

The husband had been on disability since 2016 due to mental health challenges. The court found that he should have been aware that his income was non-taxable, and his child support payments should have been higher. The court also found that he only made one payment in 2018, but it was not based on his ability to pay, given that his income was non-taxable. Under the Federal Child Support Guidelines, non-taxable income is to be “grossed-up” (i.e. increased) to reflect that the payor’s income is higher and should result in a higher child support amount. For these reasons, the court found that the payor engaged in blameworthy conduct.

Finally, the court also found that the children would have benefitted from child support payments more in line with the payor’s actual income and ability to pay. The court did not find that retroactive payments would bring hardship to the payor.

The payor was ordered to pay approximately $30,000 of retroactive child support back in 2017.

Contact Mincher Koeman Family Lawyers for Assistance with Child Support

Child support is the right of the child, including retroactive child support. Even if a party pays some child support, the court will ensure that the proper amount is paid, so you should speak with our family law lawyers at Mincher Koeman, who are experienced in assisting parents with child support claims. Our Calgary family law lawyers are dedicated to finding the best resolution for you and your children in your divorce case.

To book a consultation, please contact us online, or by phone at 403-910-3000.

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