Retroactive Child Support in Alberta: What You Need to Know
In Alberta, when parents separate or divorce, it is common to have an agreement or court order specifying the amount of Section 3 and Section 7 child support payable for the children. Many agreements or orders require parents to exchange financial disclosure annually, often by June 30th, for as long as the children remain dependent under the Divorce Act (Canada) or the Family Law Act (Alberta).
A parent’s income may change significantly after a child support order is finalized. Without annual financial disclosure, a payor may underpay or overpay Section 3 child support, or the parties may not proportionately share Section 7 expenses. A Calgary lawyer can help calculate and enforce these obligations.
Child support is the right of the child; it cannot be waived by either parent. Parents must provide support commensurate with their income under the Federal Child Support Guidelines. Both payor and recipient parents have a responsibility to ensure the child receives the correct support, even if an order provides predictability.
Courts carefully consider retroactive child support, balancing fairness to the child with the payor’s interest in certainty. Factors include the reason for any delay in seeking support, the conduct of the payor, the child’s past and present circumstances, and whether a retroactive award could cause hardship.
If the recipient of child support is found to be entitled to an award for retroactive child support, the general rule is the retroactive child support award should go back to the date the recipient provided effective notice to the payor, but not more than three years, unless the payor has engaged in blameworthy conduct. Effective notice is defined as any indication by the recipient parent that child support should be paid, or if child support is already being paid, that the current amount of support needs to be renegotiated. All that is required is for the subject to be raised.
Effective notice does not require a special form. A text message or email may be sufficient evidence that effective notice was provided to the payor parent. Once effective notice has been provided, the payor of support can no longer assume that the status quo is fair.
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If you have any questions about calculating retroactive support, claiming retroactive child support, or applying to retroactively decrease your child support obligations, please contact us for a free consultation at: (403) 288-0009 or at: murray@bodnaruklaw.com
Effective Notice and Actions Taken by Recipients
A court may adjust child support back to the date the payor received effective notice that the amount payable for child support needed to be renegotiated.
The reasoning behind effective notice as the date for any retroactive adjustment for support is that it is the date on which the payor is presumed to have known that questions have been raised about the adequacy of his or her support payments. However, the recipient of support must also take steps after providing notice and not delay resolving the issue.
If there is a prolonged period of inactivity by the recipient after giving effective notice, the payor’s interest in certainty may be used to defend against the proposed adjustment to child support. Delays on the part of the recipient may undermine their claim that an increased amount of support was required to meet the child’s needs.
Recipients may be able to justify their delay in actively pursuing retroactive support where:
- they are fearful of the payor;
- have delayed filing an application based on a history of family violence; or
- if they were unable to retain a lawyer due to their limited financial resources.
Blameworthy Conduct and Payors’ Behavior
When a payor engages in blameworthy conduct, the date when the payor’s financial situation changed significantly will be the presumptive start date for the adjustment of support rather than the date of effective notice. In such cases, it is possible for retroactive support to be ordered further back than three years. Examples of blameworthy conduct include:
- a payor hiding increases in his income or job changes from the recipient and failing to provide his financial disclosure;
- a payor trying to discourage the recipient from bringing an application for support by using pressure tactics or threats; and
- a payor misleading the recipient into believing they are meeting their support obligation when they are not, including by misrepresenting their income.
In some cases, the behavior of the payor parent may support a lengthy retroactive order; however, the payor’s behavior may also reduce the possibility of an award for retroactive support. For example, if a payor voluntarily paid additional expenses for a child without a formal obligation to do so, a retroactive award may not be made, or the amount of the retroactive award may be reduced.
Overpayment of Support
The case of Colucci v. Colucci, 2021 SCC 24, gave the Supreme Court the opportunity to establish a framework for courts to follow when a payor parent applies to retroactively decrease child support to reflect a past reduction in income under Section 17 of the Divorce Act. The Supreme Court noted that family law matters are diverse and complex and that courts need wide discretion to come to a fair result. It said courts must balance a child’s need for regular and appropriate support with the need for flexibility when a payor parent’s ability to pay is affected by changes in income over time.
The Supreme Court explained that since the Guidelines came into effect, the payor parent is under a free-standing legal obligation — independent of any court order — to pay child support in line with his/her income. The Supreme Court stressed the child support system depends on adequate, accurate and timely financial disclosure and stated, “frank disclosure of income information by the payor lies at the foundation of the child support regime”.
The Supreme Court noted that a payor parent who has established a past decrease in income is not automatically entitled to a retroactive decrease of support to the date of the decrease. It emphasized that it is up to the court to make a discretionary decision based on its analysis of the specific circumstances of the given case.
Payment of Arrears
Courts are extremely unlikely to reduce arrears of child support even when the amount of the arrears is high. The payor parent must overcome a presumption against cancelling any part of the child support arrears. The presumption will only be defeated where the payor parent establishes on a balance of probabilities that even with a flexible payment plan, he/she cannot and will not ever be able to pay the arrears. While the presumption in favor of enforcing arrears may be overcome in unusual circumstances, the standards used by the courts are consistently strict.
Cancellation of arrears is a last resort granted only in exceptional cases. The rules are designed to discourage child support payors from waiting out their obligations or by sabotaging statutory enforcement regimes, such as the Maintenance Enforcement Program, that recognize child support arrears as debts to be taken seriously. If a court concludes that the payor’s financial circumstances will make it difficult to pay down his/her arrears, the court may consider suspending the payment of arrears for a limited period, set up installment payments for the payment of the arrears, or other creative payment options. Arrears of support may only be cancelled in exceptional circumstances if the pay