Separated but Never Sued — Can You Still Get Back Child Support? Scarborough Chinese Divorce Lawyer Says Often Yes

The child is with you, the other side pays little or nothing. You’re not ready to touch property — house is in your name. Question: can you leave child support alone too? Can you still get the past part later?

Short answer: often yes. Not automatic full, not automatic zero.

Child support is the child’s right. You can claim it from separation — no need to wait for divorce, no need for an agreement first. An agreement saying zero, the court won’t honor.

Property and child support are two separate tracks. Equalization has limitation periods. Child support isn’t subject to limitation.

How does the court decide the past part?

If you wait two or three years to file, the court decides two things: where the back support starts, and how much ongoing monthly is. Ongoing, as long as the child is still dependent, is almost always there. The back part is the real fight.

The Supreme Court in D.B.S. v. S.R.G., 2006 SCC 37 didn’t say it expires. It looks at four things: why you delayed, whether the payor hid income or didn’t cooperate, how the child actually lived during that time, and whether a lump sum now would cause hardship. Those four together decide the start date and whether it’s discounted.

Even after the child is independent, past arrears can sometimes still be claimed. Michel v. Graydon, 2020 SCC 24.

From what date?

Child with you, separation day is when the obligation starts. Separation date is usually the starting point for discussion. Separated under the same roof still counts.

Without filing, money doesn’t land in your account by itself. If they send a bit here and there, take it, record it, credit it later — don’t treat it as settled. If they report very low income, the table amount is small. If you think they’re hiding cash income, imputed income needs real evidence, not a guess.

Section 7 is a separate bucket. Extracurriculars, dental, childcare in certain cases — has to be reasonable and necessary, split by income ratio. Pay it yourself, keep invoices. Groceries, rent, meals out — not section 7.

Don’t bundle spousal support with child support. Incomes close, spousal may be zero, child support is still there.

What if you’ve delayed for years?

The old “about three years back from effective notice” is an analytical tool, not a hard deadline.

No notice, no reason for waiting — the back part will likely get cut. The court may only order ongoing from the filing date, little or no retro.

These facts stretch it longer: you asked in writing for tax returns, table amount and section 7, no reply. They changed jobs, took cash, didn’t disclose, you couldn’t know the real income. You had a reasonable reason not to sue: safety, couldn’t find them, dealing with criminal or restraining order first, couldn’t afford a lawyer. The child was clearly short of what they should have had.

If they say “three years at once will bankrupt me,” the court considers hardship, may reduce the amount, but rarely wipes it out. The child’s situation weighs more than the payor’s inconvenience.

With a court order, arrears go through FRO — wage garnishment, tax refund intercept, licence suspension. With a separation agreement, FRO can enforce too. No order, no agreement, FRO can’t move. So the past part has to become a number in an order or agreement first.

Does a lawyer’s letter count as having claimed it?

Often yes.

Effective notice doesn’t need a court stamp. A lawyer’s letter or clear email stating the separation date, who the child lives with, and that you’re claiming child support and section 7 — once they know, it counts. No reply, no payment, notice still happened.

Don’t admit to a number you haven’t calculated in the letter, and don’t write it as waiving property or spousal support. It’s just a record: date, request, child expenses. Pay extracurriculars with your own card, match invoices to bank records.

If they start sending money, take it, record it, don’t say verbally “the past is settled.” Settlement has to be in an agreement.

If you’ve been separated and never claimed child support, check whether you have effective notice and from what date it runs. Book an initial consultation (30 minutes, $220+HST). Call 647-930-6688.

This article provides general legal information only. It is not legal advice and does not create a solicitor-client relationship.