Can Child Support Be Backdated or Reduced Retroactively in BC?

Maybe your income dropped months ago and you kept paying the old amount. Or maybe the other parent's income went up and you have been receiving less than you should. In both cases the question is the same: can a court reach back in time and fix the number?

In British Columbia the answer is sometimes yes, but it is not automatic. This article explains the tests a court uses, how the rules differ if your order came from the Divorce Act, and why timing is often the most important part of your case.

This article covers the law of British Columbia.

What the law says about changing child support

Under the Family Law Act, section 152, a court can change, suspend or terminate a child support order on application, either prospectively (going forward) or retroactively (back to an earlier date). The key requirement is that a change in circumstances, as provided for in the child support guidelines, has occurred since the order was made.

Child support is normally set under the child support guidelines, and a court may depart from them only in limited cases and must give reasons. That is why a change in circumstances is usually measured against what the guidelines would now produce.

What counts as a change in circumstances

The Federal Child Support Guidelines explain the test. Where the amount includes a table-based determination, a change of circumstances is any change that would result in a different child support order or any provision of it. Otherwise, it is any change in the condition, means, needs or other circumstances of either spouse or an eligible child.

There is also a second route. A child support order can be changed on substantial new evidence that was unavailable at the previous hearing, or where evidence of non-disclosure is discovered later, even without a guideline change in circumstances.

• A change in either parent's income that would lead to a different guideline amount.
• A change in the needs or circumstances of the child.
• Substantial new evidence that could not be obtained at the earlier hearing.
• Later discovery that income or other information was not properly disclosed.

How far back can a change reach?

A court can change a child support order retroactively, meaning back to an earlier date, as well as going forward. Even then, a qualifying change in circumstances since the order was made, or substantial new evidence, is still needed. How far back a court may be willing to go depends on the facts of your situation, so it is worth confirming with a lawyer.

If your order was made under the federal Divorce Act instead, variation is under section 17 of that Act. Child support variation there also requires a change of circumstances as provided for in the guidelines, and a variation order may be retroactive or prospective. Check which law your order was made under before you start.

Why you cannot simply stop or reduce payments yourself

Support obligations under an order continue until a court changes, suspends or terminates the order, and a payor cannot end them by their own decision. Unpaid support under a maintenance order is arrears, and arrears bear simple interest at a rate set by regulation.

The court cannot reduce or cancel arrears except as the Family Maintenance Enforcement Act allows. One exception is that the court may reduce or cancel arrears when they are reduced or cancelled in a proceeding to change the order. In practice, a payor who applies promptly may get a retroactive reduction, while one who waits risks arrears and interest continuing to build.

What to do next

• Find your order and confirm whether it was made under the Family Law Act or the Divorce Act.
• Write down the date your circumstances changed and keep proof, such as pay records or notices of assessment.
• Keep paying what the order requires while you sort out a change.
• Raise the change with the other parent in writing. If you both agree, ask about having the new terms made into a court order.
• If you cannot agree, in Provincial Court an application to change an order is made on Form 3 with the correct schedule and a copy of the order attached.
• Speak to a lawyer early, because arrears and interest can keep building while you wait.

Frequently asked questions