Can you retroactively reduce child support payments?

A retroactive (backdated) change in your support payments dates back to when your income changed, so it starts in the past.

If:

• you have an order or agreement to pay child support,
• you're earning less now than you were when the original order or agreement was made, and
• you think you've been paying too much child support based on your new income,

you might be able to get your child support payments reduced retroactively.

Child support is worked out using the Federal Child Support Guidelines and is based on how much the paying parent (the parent who pays support) earns and the number of children who need support. Parents are responsible for giving up-to-date financial information (called financial disclosure), such as their income tax returns, every year. Then they see if the amount of child support needs to be changed.

How can you get your child support payments reduced?

Give the other parent your financial information to show them that your situation has changed. For example, you can send them an email and a copy of your layoff notice, EI stubs, or income tax return. Tell them you think you've been paying too much child support. Do this as soon as you can.

If you and the other parent can agree on a lower amount of support going back to when your income changed, you won't have to go to court. You can also work out how to deal with the extra child support that you paid in the past. For example, will the other parent give you back the extra money or will you deduct it from your new payments?

Whatever you agree, it has to be in the best interests of the child. That means the new support payments must still be enough to help take care of your child.

If you need help with this, get legal advice or speak to a dispute resolution professional, such as a mediator.

If you don't think you can work together to decide on a lower amount, you'll have to go to court to get your order or agreement changed. Do this right away. You can still try to work things out with the other parent, even if you've already started a court application. See Change an order or set aside an agreement made in BC to find out how to change an order.

What happens if you go to court?

If you apply to court for a retroactive decrease in child support, you need to show that:

• your income dropped by a large amount for a long time, and
• you weren't responsible for the drop.

You can't ask for a decrease in your payments if:

• your drop in income was temporary (short-term) because you were laid off,
• you chose to quit your job to go back to school, or
• you chose to quit your job and didn't have another one to go to.

The court will look at when your income changed and how much it changed. It will also look at other factors such as:

• whether you paid child support regularly, and
• whether a retroactive change in support payments might cause hardship to your child.

If you waited for a long time before you applied for a change in your support payments, the court will want to know why you waited. For example, maybe you didn't know you could apply for a retroactive change or you hoped that things would get better soon.

You'll need to show the court information about your income, including:

• income tax returns,
• layoff notices,
• EI slips, and
• doctors' notes or medical certificates that explain why you can't work or why your income has dropped.

If the court agrees that:

• you had a material change (a major change) in circumstances, and
• you've been paying too much support since then,

it will work out a lower amount of child support based on the Federal Child Support Guidelines.

The new amount will be applied to past years and to the current year. You can review it when you make your next annual financial disclosure.

The court might also order the other parent to repay some of the support that you overpaid, or set it off against payments that are to be made (deduct the amount from your new payments). It will only do this if it doesn't affect your child's best interests.

The court might use the date when you first gave the other parent notice of (told them about) your change in income to work out when your support payments should have changed.

Try to keep paying your usual amount of child support while you try to agree on a lower amount or there's a court order for a new amount. If you don't, and your support payments don't get reduced, you'll build up arrears (past support payments that haven't been paid). See Can you reduce or cancel child support arrears? to find out more about child support arrears.

If you can't pay the full amount, pay at least the reduced amount you think you should be paying based on your new income. That will help you show the court that you made a reasonable effort to pay child support even though you weren't following the original order.

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

If you've been paying support but you don't have an order or agreement, try to work out a written agreement with the other parent that reflects your reduced earnings and deals with any overpayments you've made. You might find it helpful to work with a family justice counsellor for this.

If you can't reach an agreement, you'll have to start the process to get a court order. See Child support to find out more about getting a support order.

Getting child support payments reduced retroactively 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.