Can Child Support Be Backdated in British Columbia?

Many parents wait to deal with child support. Some never applied after separating. Others learn that the paying parent's income went up and wonder whether they can recover what the higher income would have produced.

This article explains what the law says about retroactive changes and what evidence matters. How far back a particular claim can go is fact-specific, so treat this as a map of the issues rather than a prediction.

This article covers the law of British Columbia.

The duty to support exists whether or not there is an order

Each parent and guardian has a duty to provide support for a child. Support is the child's legal right, and a parent cannot make an agreement that the other parent does not have to pay it.

That said, a duty on paper is different from a court order for a past period. Whether and how far back a court will order support in a case with no earlier order depends on the circumstances, and a lawyer can confirm how that works for you.

Changing an existing order back in time

Under the Family Law Act, a court may change, suspend or terminate a child support order, prospectively or retroactively, on application. Under the Divorce Act a court may likewise vary a child support order retroactively or prospectively.

Retroactive power is not unlimited. Under the Family Law Act the court must first be satisfied of one of three things: a change in circumstances under the guidelines, substantial new evidence that was not available at the earlier hearing, or evidence of a lack of financial disclosure discovered after the last order. Under the Divorce Act the court must be satisfied that a change of circumstances provided for in the guidelines has occurred.

What counts as a change in circumstances

For an order set using a table, a change of circumstances is any change that would result in a different child support order. A change in the payor's income is a common example. For orders not set using a table, it is any change in the condition, means, needs or other circumstances of either parent.

Proving income

A retroactive claim usually turns on what the payor really earned. Annual income is determined from the Total income heading of the T1 General tax form, adjusted under Schedule III, and where income fluctuates the court may look at the last three years. An applicant must include the other parent's tax returns for the three most recent taxation years, and the respondent must provide income documents within 30 days if in Canada or the U.S., or 60 days elsewhere.

If a payor is intentionally under-employed or unreasonably deducts expenses, the court may impute income. For a shareholder, director or officer, the court may include all or part of the corporation's pre-tax income. If both parents agree in writing on a parent's annual income, the court may accept that amount if it is reasonable given the income information provided.

What to do next

• Find any existing order or agreement and note its date and amount.
• Gather tax returns and notices of assessment for the payor, if you have them, and your own.
• Write a timeline of when income changed and when you first raised support.
• Consider the BC Child Support Recalculation Service, which adjusts eligible orders each year using tax information and the tables, and is free through the CSRS Portal.
• Keep support and parenting time separate: support cannot be withheld over contact issues, and parenting time cannot be refused because support is behind.
• Talk with a lawyer early about your timing. How this applies depends on your situation, so it is worth confirming.

Frequently asked questions