Can Retroactive Child Support Be Decreased? By Matthew Brandon

Family Lawyer Matthew Brandon shares a cautionary tale about a dad who sought to reduce his child support obligations, retroactively.

In 1996 a man had been ordered to pay child support of $115 per month for his two young daughters.  Despite a court order, he did not make voluntary child support payments for 16 years, and ceased all communication with the mother and the children. Although this occurred in a province other than BC, it applies to BC Family Law nonetheless.

By 2012 the children were grown and his child support obligation ended, but by that time he had accumulated over $170,000 in child support arrears. In 2016 the father applied to have his arrears of child support reduced or cancelled, as his income had decreased since the original child support order was made. 

What Did Family Law Courts Decide About Retroactive Child Support Arrears?

The Ontario Superior Court of Justice agreed with him and reduced his child support debt to $42,000.  However, at the Court of Appeal the mother was successful in restoring the original $170,000 debt.  The father appealed to the Supreme Court of Canada, which is why this case bears weight in all provinces, including BC.

In a unanimous decision, the Supreme Court of Canada held that if you are a parent seeking a retroactive reduction in child support, you must show that you have given timely notice of that fact to the other parent.  People seeking such a reduction have an obligation to be clear to the other party about changes in their financial circumstances.  If you don’t tell the other person your income has decreased, and you delay in bringing an application to the court, you will not be successful.  

How Best to Navigate Your Change in Circumstance

The Supreme Court of Canada has also noted that it is important to demonstrate that even though you have experienced a reduction in income, you are continuing to pay some child support based on what you are able to pay (unlike in this case where the father opted to pay zero).  Such an act of good faith may accrue to your benefit when you bring on an application to reduce child support arrears.

Moral of the Story:  If your income declines, tell the other person promptly and pay what you can while you wait for your application to be heard by the court.

If you wish to read about this case, you will find it here: 

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18909/index.do?q=child+support

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Please note that the above is for informational purposes only and is not intended to provide you with legal advice.