As we’ve discussed before, child support and child custody are separate issues. Regardless of your custody situation, parents are legally obligated to support their children financially. There are times when, for any number of reasons, something goes wrong and the payments either fall behind or are no longer in the correct amount.
If you find yourself in this situation, either as the payor or the payee, it can be hard to figure out what to do about it and how to make things right. Luckily, the courts are on top of things, and there are procedures in place to help you out.
Retroactive Child Support Vs. Back Child Support
There are two basic situations in which a parent might have to play catch-up with child support payments:
- Back child support payments: This refers to a situation where a parent stops paying child support, or doesn’t pay the whole amount. The amount owing will accrue over time, and still has to be paid according to the law. There are several ways to enforce this, which we will discuss further.
- Retroactive child support: This is a much different situation. Retroactive payments may be due in situations where one parent’s financial situation changes, but the support agreement isn’t modified right away. They may also apply at the time the divorce is finalized, if a judge rules that support should be paid starting from the date of separation.
How Child Support Payments Are Enforced
It is not uncommon for a payor to fall behind on child support payments, for any number of reasons. Here in Ontario, payment of child support is managed and enforced by the Family Responsibility Office, or FRO. Payments are submitted to the FRO, who then forwards them to the receiving parent. This simplifies the payment process, especially if the two former spouses aren’t on great terms.
If you are the paying parent and fall behind on your payments, or find yourself unable to pay the full amount, you should contact the FRO immediately and let them know. Likewise, the receiving parent should also inform the FRO if they notice any issues with payment. If payments become delinquent, the amount owing can be collected by any of several methods, including:
- Garnishing wages and bank accounts
- Garnishing any money received from the government, including income tax refunds or EI benefits
- Placing a lien on personal property
- Seizing lottery winnings, if applicable
Besides these steps to enforce payment, penalties for not making child support payments may include:
- Suspension of the payor’s driver’s license or other federal licenses
- Suspension of the payor’s passport
- Reporting the delinquency to any professional organizations the payor belongs to
- Initiating a Default Hearing, which could result in jail time
These penalties can be avoided if the payor communicates openly with the FRO to make arrangements to catch up any delinquent amounts.
Retroactive Child Support
Making retroactive support payments is different from catching up on delinquent payments. Paying retroactively may apply if there is a period where the court decides after the fact that one parent should have been paying child support but wasn’t. This could mean paying support for the period between the date of separation and the date the divorce was finalized, or if there was a situation where one or both parents’ incomes changed and were not immediately reported.
Both parents are responsible for making sure the amount of child support owed is up to date. If the recipient parent finds out that the paying parent’s income has increased, they should immediately inform the FRO if the paying parent hasn’t already done so. If some time has gone by since the paying parent’s income changed, the court may find that the payor is on the hook to make up the difference for the payments that were lower than they should have been. In general, the maximum time for retroactive payments is three years, but this can vary depending on the situation.
A judge may rule that retroactive support is due depending on the following conditions:
- Whether there has been any wrongdoing on the part of the receiving parent
- Whether the delay in updating the payments was the fault of the paying parent
- Whether the increased payment will pose a significant hardship to the paying parent
- The current circumstances of the children
The paying parent must file an application for retroactive support while the child is still eligible to receive it; for example, if your children have reached adulthood and you find out that your ex should have been paying more while they were younger, you won’t be eligible to receive retroactive payments.
Contact Galbraith Family Law for Help With Child Support Issues
Child support and custody can both be difficult issues to navigate. If you have questions about these issues, Galbraith Family Law will be happy to help. Call (289) 802-2433 in the Newmarket area or (705) 302-1102 in Barrie. You can also send a message through our website.