Can you retroactively increase child support payments?

If you have a child support order or agreement, your child might be entitled to a higher amount of child support in certain circumstances, including if the paying parent (the person who pays support):

• has been earning more than they were when the existing order or agreement was made, or
• didn't properly disclose (tell you about) their income when the existing order or agreement was made.

When can you ask for retroactive support?

Child support is worked out using the Federal Child Support Guidelines. These rules base child support on how much the paying parent earns and the number of children who need support. The paying parent must give the receiving parent (the parent who gets the support payments) up-to-date financial information, such as their income tax returns, every year. This is called financial disclosure. The parents then see if the amount of child support should be changed.

Whether or not you ask for financial disclosure, the paying parent must tell you how much they earn. They must pay child support based on their income. If you haven't been getting financial disclosure and:

• you find out that the paying parent has been earning more than you thought, or
• you believe you should have been getting more child support in previous years,

you can ask for extra child support to make up the difference between what the other parent was paying and what you think they should have been paying. This is called asking for a retroactive increase in child support.

You might be able to:

• get your monthly child support payments increased,
• get a lump sum or instalment payments to make up the difference between the support you received and the support you should have received, or
• both.

How far back can you go?

If you think your child is entitled to retroactive child support, the court will look at how much the paying parent has earned for at least the past three years. But it might go back further in certain circumstances. For example, if the paying parent didn't give full or accurate financial disclosure, including when you made the original order or agreement.

If you're an adult and you want to claim retroactive support from the paying parent, get legal help as soon as possible.

How do you ask for retroactive child support?

Ask the paying parent to give you updated financial disclosure going back to when their income changed or was misrepresented. For example, you can ask to see their income tax returns or copies of their pay stubs. Try to explain to them that the amount of child support they have to pay is linked to their income. If you need help with this, get legal help or speak to a dispute resolution professional, such as a mediator.

If the paying parent's financial information shows that their income is higher than the income the support is based on, you can ask them for retroactive support.

If the paying parent won't give you financial disclosure or agree on a higher amount, you might have to go to court to get your order or agreement changed. See Change an order or set aside an agreement made in BC to find out more about this.

How does the court decide?

If you ask for a retroactive child support order, the court won't just look at the paying parent's change in income and tell them how much more to pay you. A judge will think about several things before they make a decision. For example:

• Why did you wait to ask for retroactive child support? (Maybe you were afraid of the other parent, you couldn't afford to go to court, or you didn't know you could ask for it.)
• How did the other parent behave? (Did the paying parent put their own interests before the child's best interests? Did the paying parent deliberately say they earned less than they did, or did they hide some of their income? Did they not pay child support regularly?)
• How was the child affected? (A child has the right to support from both parents, so a paying parent can't say that the child doesn't need the child support, or that the other parent can care for the child just fine on their own. A judge will look at how a child's life might be affected if the paying parent doesn't pay the support they're ordered to.)

The court will also look at how a change in the amount of support, or an order to pay a lump sum, will affect both you and the other parent, the child, and any other dependents. The judge might decide that:

• you should have been getting more support, but
• the other person can't afford to pay the extra money in a lump sum.

If that happens, the paying parent will likely be told to pay the extra money in instalments.

Can you enforce a retroactive support order or agreement?

The BC Family Maintenance Agency (BCFMA) is a free service that helps people to get their child or spousal support payments that are included in court orders and agreements. If you have an agreement, it has to be filed in Provincial Court before you can enroll.

If your existing order or filed agreement is enrolled with BCFMA, give them a copy of the new retroactive order or filed agreement.

If your existing order or agreement isn't enrolled with BCFMA, you can enroll your retroactive support order or written agreement with them.

What if you don't have a support order or you haven't filed an agreement?

If:

• the other parent has been paying support but you don't have an order or agreement, and
• you find out about the other parent's true income by chance or through financial disclosure,

you can start the court process to get a retroactive order for the amount of support that the other parent should have been paying. See Child support to find out more about getting a support order.

Getting retroactive child support can be complicated. It's a good idea to speak to a lawyer. See Tips about getting legal help to find out who can help you.