Can You Claim Back Spousal Support From Before You Applied in BC?

If you went months or years without support after separation, you may wonder whether a court can go back and fix that. The answer in British Columbia is that it can sometimes order support for an earlier period, but it depends on your facts and on time limits.

This article explains the basic rules, the deadlines that apply to married and unmarried spouses, and what to know about tax on catch-up payments.

This article covers the law of British Columbia.

What retroactive support means

Retroactive support is support ordered for a period before the order was made. Under the Family Law Act, section 170, an order may require periodic or lump-sum payments and may cover periods before the application date.

The law does not promise backdating to any particular date. Entitlement still has to be established first, and only then are the amount and duration decided. The amount and duration depend on each spouse's condition, means, needs and other circumstances. Courts can also change existing orders retroactively or prospectively.

Time limits to watch

For spousal support under the Family Law Act, a proceeding must be started within 2 years after the date a divorce judgment is made (or a nullity order) for married spouses, and within 2 years after the date of separation for spouses in a marriage-like relationship.

The 2-year limit is paused while the spouses are in family dispute resolution with a professional or in a prescribed process. It also does not apply to reviews of spousal support under sections 168 or 169.

The Divorce Act, section 15.2, contains no time limit for a married or formerly married spouse to apply. Delay is considered as a factor on the merits and in retroactive claims, not as an automatic bar. Because the two Acts differ, which one applies to you matters. Unmarried partners claim under the Family Law Act, not the Divorce Act.

Missed payments under an existing order are different

If you already have an order and the payor stopped paying, that is an arrears issue, not a retroactive claim. The Limitation Act does not apply to a claim for arrears of spousal support payable under a judgment or under an agreement filed under Family Law Act section 148(2) or 163(3).

An order stays in force until changed by a court or agreement, so a payor who simply stops paying accrues arrears that remain enforceable. A written agreement that is filed in court can be enforced as an order, through the BC Family Maintenance Agency or by court application.

Interim support while you wait

On any application under the Family Law Act, a court may make an interim order for the relief sought. Under the Divorce Act, a court may make an interim order while an application for spousal support is pending. An interim order can be changed, suspended or ended on a change in circumstances or substantial new evidence under the Family Law Act.

Tax on catch-up payments

For tax purposes, support must be paid under a court order or written agreement. If there is no order or written agreement, the payer cannot deduct the payments and the recipient does not report them.

A payer who makes a lump-sum payment of $3,000 or more to bring support payments up to date, and who can deduct it, must give the recipient Form T1198 when it is reportable income to the recipient. Whether a particular lump sum is deductible is worth confirming with an accountant.

What to do next

• Write down your date of separation and, if married, the date of any divorce judgment.
• Note when you first asked for support and how the other spouse responded.
• Collect income records for both spouses for the period you are asking about.
• Check any written agreement or order for support terms.
• Get legal advice early, since deadlines may already be running.

Frequently asked questions