British Columbia Law
Retroactive Child and Spousal Support in BC
Can a BC court order child or spousal support for a period before you applied?
I have practised law in British Columbia since 1991, and I am often asked this by parents who waited too long to raise support, or who learn later that the other parent's income went up. Here is how BC law approaches it.
What "retroactive" support means
Retroactive support is support that a court orders for a period before the date of the application. It is different from arrears, which are amounts already owing under an existing order or agreement that were not paid. Arrears are collected under the order you already have.
Retroactive support asks the court to set an amount for a time when no order covered the situation, or to increase an amount for a past period.
Retroactive child support in BC
Child support is the right of the child, and the Supreme Court of Canada has said so in several decisions. The leading case is *D.B.S. v. S.R.G.*, 2006 SCC 37, and it was revisited in *Michel v. Graydon*, 2020 SCC 24. Courts in British Columbia apply the principles from those decisions to claims under both the *Family Law Act* and the federal *Divorce Act*.
In general, a court will look at four things:
- The reason for the delay. Why did the parent who is claiming wait? Fear, lack of money for a lawyer, a belief that the other parent could not pay, or an ongoing relationship can be good reasons. Simply sitting on the claim without an explanation counts against it.
- The conduct of the paying parent. Did the payor hide income, refuse to share financial information, or act as if support was not owed? Blameworthy conduct makes a retroactive award more likely.
- The circumstances of the child. Did the child go without while support was missing? Did the child have needs that went unmet?
- Hardship. Would a retroactive award cause undue hardship to the payor? Courts can adjust how much is ordered, or allow it to be paid in instalments.
How far back can the court go?
The usual starting point is the date the paying parent received effective notice that support was being claimed or that the amount should change. Effective notice means more than a casual mention. It means the payor was told that the issue had been raised, even if no lawyer was involved yet. A clear written message is far better evidence than a conversation.
As a general rule, a court will not go back more than three years from the date of formal notice, such as filing the application. A court can depart from this where the payor's conduct was seriously blameworthy, but the three-year range is a helpful guide when planning.
Increases in the payor's income
Child support under the Federal Child Support Guidelines depends on the payor's income. If the payor's income rose and they did not tell you, you may be able to claim the difference for the period since effective notice. Parents who have an order that requires an annual exchange of income information should keep those records. If the payor did not provide the information, that can be an important part of the claim.
Retroactive spousal support
Spousal support is different. It is not the child's right. It depends on need, ability to pay, and the Spousal Support Advisory Guidelines, which are widely used in BC although they are not law. Courts have the power to order spousal support for a past period, but they take care to ask why the claim was not made earlier and whether it is fair to the payor.
A claim is stronger if the payor knew that support was an issue, and weaker if the recipient waited for years without explaining why.
What about unmarried couples?
BC's *Family Law Act* applies to spouses, which includes people who have lived together in a marriage-like relationship for at least two years. The same retroactive principles can apply to child support whether or not the parents were married. Spousal support claims between unmarried spouses are subject to a deadline, so it is worth getting advice early.
If support is already ordered but unpaid
If you already have a BC order or agreement that has been filed, unpaid support can be enforced through the Family Maintenance Enforcement Program (FMEP). That is separate from a retroactive claim. A lawyer can help you work out whether you have arrears under an order or a retroactive claim, because the steps are different.
What to gather before you apply
- Any existing order or written agreement
- The date you first asked for support or told the other parent that the amount should change, with any texts, emails or letters
- Tax returns and notices of assessment for both parents for the period in question
- Proof of the children's expenses, including childcare, medical, and school costs
- Any messages showing why you waited
- A timeline of who the children lived with and when
Can you settle without court?
Many families settle retroactive claims by agreement or in mediation. A written agreement or consent order can set a lump sum or an instalment plan and avoids the cost and delay of a trial. See our pages on mediation and separation agreements.
Practical points
- Raise the issue in writing as early as you can, because the date of effective notice affects how far back the claim can go.
- Do not assume you can claim without limit. The courts balance the rights of the child with fairness to the payor.
- We do not give tax advice. Support payments can have tax consequences, so speak with a qualified accountant.
- This article is general information about British Columbia law and is not legal advice for your situation.
How Sea to Sky Law can help
Consultations are by phone or secure video, and all meetings are by appointment only. We can review your order or agreement, work out whether you have a retroactive claim or arrears, and explain your options. Call (778) 728-0208 or use our intake form.
This article is general information, not legal or tax advice. Meetings are by appointment only, by phone or secure video.