Can You Claim Retroactive Child Support in Ontario?

If you raised children without proper support from the other parent, you may be wondering whether you can ask for money for the past. It is a common worry, and it often comes with a second one: did waiting too long hurt your chances?

The honest answer is that it depends on your situation. This article explains the parts of the Ontario process that apply to any child support claim, so you know where to start and what to ask a lawyer.

How far back a court will go depends on your facts

There is no single answer to how far back a claim can reach. How this applies depends on the particular history of your family and your situation, so it is worth confirming with a lawyer.

Because that question turns on your own facts, it is worth getting advice on it early, before you assume that a claim is too late or that it is certain to succeed. Start by writing down the timeline of your separation and what support, if any, was paid. A Family Law Information Centre at a family court in Ontario can also give you information on separation, divorce and court processes.

When the amount can differ from the Guidelines

Child support is normally set using the Federal Child Support Guidelines. Either spouse may ask the court for a different amount if the spouse or child would otherwise suffer undue hardship. The Guidelines list circumstances that can count as undue hardship:

• An unusually high level of debts reasonably incurred to support the spouses and children before separation, or to earn a living.
• Unusually high expenses for exercising parenting time with a child.
• A legal duty under a judgment, order or written separation agreement to support any person.
• A legal duty to support another child who is not a child of the marriage.
• A legal duty to support anyone who cannot obtain the necessaries of life because of illness or disability.

There is an important limit. Even where undue hardship is found, the court must deny the claim if the claimant's household would have a higher standard of living than the other spouse's household after child support is set. The court may compare the households using the test in Schedule II of the Guidelines. The court may also set a reasonable time for the hardship-causing obligation to be satisfied, and the amount payable after that time, and it must record its reasons for a different amount.

Which court hears a support claim

Child support can be heard in the Superior Court of Justice or the Ontario Court of Justice. The Ontario Court of Justice does not hear divorce or property claims. The Family Court Branch of the Superior Court of Justice sits in 25 locations, and all family law issues can be heard there. Outside those locations, you start in either the Superior Court of Justice or the Ontario Court of Justice, depending on the claims.

Generally, you start the case in the municipality where you or your spouse lives, although where parenting issues are involved the municipality where the children live may apply instead.

How a support claim gets started

A family case starts with an application. The respondent has 30 days to serve and file an Answer, or 60 days if they live outside Canada and the United States. Financial statements for support claims are made on Form 13.

Parties generally must attend a Mandatory Information Program session before their first appearance or case conference, and no later than 45 days after the case starts. That session is not required in some situations, including a motion to change a final order for child or spousal support only. A judge can also excuse attendance if your circumstances are urgent or attending would cause you hardship.

What to do next

• Write a timeline of the separation, any support paid, and when you first asked for support.
• Gather income records for both parents if you have them, and any existing order or agreement.
• Ask a lawyer how courts treat delay and how far back a claim could reasonably go on your facts.
• Consider mediation or another out-of-court process, which you can try before, during or instead of a court case.
• Contact a Family Law Information Centre at your family court for information on court processes.

Frequently asked questions