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Arrears and retroactive support; one of these things is not like the other

August 26, 2026 | Rochelle D. Blocka B.Sc. (Hons), J.D.

The law can be confusing and overwhelming for (not just) junior lawyers. In our practices we are tasked with interpreting countless pieces of legislation and the common law, not to mention applying the various principles, guidelines and tests. It is easier said than done to keep all of the terms and phrases straight, and at times confusion may arise. For family law practitioners, the distinction between arrears and retroactive support has been known to be misinterpreted, or at times the terms are used interchangeably. While the two both consider support which ought to have been paid in the past, the way in which each arises is distinct.

Arrears are missed or overdue payments on an existing support order or agreement. A retroactive support order requires payment of support for a past period, either where no prior order or agreement was in place, or where the previously ordered or agreed upon amount was insufficient.

While arrears and retroactive support are pertinent to both child and spousal support, the analysis applied by the courts when the issue is raised is not always the same for claims pertaining to child or spousal support.

Taking a few steps back, it is helpful to first break down the distinctions between arrears and retroactive support:

  Arrears Retroactive Support

What they are:

Support a payor was to make under an existing court order or agreement, but which the individual has failed or refused to pay.

Support which is ordered to be paid that should have been paid in the past. Retroactive support can be ordered in circumstances where no prior order existed and no payments were made, or where the amount paid, either voluntarily or pursuant to a prior court order or agreement, is different from what was required under the Federal Child Support Guidelines or the Spousal Support Advisory Guidelines following a more detailed or more recent analysis of the parties’ circumstances.

When support is analysed on a retroactive basis the end result may be either an overpayment or an underpayment.

Purpose:

To collect payment of the difference between the amount to be paid under the existing order or agreement and the amount actually paid.

To correct an imbalance in the amount of support that was previously paid as against the amount that ought to have been paid. 

Interim support orders or voluntary payments are routinely made out of necessity shortly after a separation, on the understanding the amount can be adjusted retroactively once full disclosure of the parties’ circumstances is available.

How they are determined:

The payee has various options for collecting payment of arrears if the payor neglects or refuses to pay.

If the existing order or agreement was/is registered through the provincial Maintenance Enforcement Office, the service will assist with the collection of arrears having accumulated during the period the order or agreement was registered with the enforcement office. The service may also enforce arrears accrued prior to the date the order or agreement was filed with the Maintenance Enforcement Office.

The payee spouse may also apply to the court requesting payment of the arrears. The payor can likewise request that a court rescind or order a reduced quantum of arrears to be paid, based upon their conduct and the circumstances, such as the ability to pay or hardship suffered by making one large lump sum payment.

The court considers various factors prior to making an order for retroactive child or spousal support, in addition to the review of financial disclosure. 

Consideration of these factors assists with a determination of the quantum to be paid, and includes: the reason for the delay in requesting support, the payor's conduct (e.g., "blameworthy conduct"), the needs of the child/spouse, and the potential hardship on the payor if a retroactive award is ordered to be paid. (Kerr v. Baranow, 2011 SCC 10)

Key takeaway:

If a payor fails or refuses to make payments under an existing order or agreement, the unpaid amount is categorized as arrears.

The amount to be paid for previous periods of time, after a current analysis of the circumstances of the parties and the children.

The key difference between arrears and retroactive support is that arrears stem from non-payment of a known obligation whereas retroactive support arises from the establishment of a new obligation with retroactive effect.

Child Support versus Spousal Support

As noted above, arrears and retroactive support pertain to both child support and spousal support. 

Recognising it is a gross over-simplification of the analysis, for the purpose of this discussion, the calculation of arrears for either child or spousal support is quite straight forward: what was paid versus what was ordered or agreed to be paid. The difference is the quantum of arrears. Upon the quantum of arrears being established, the parties are thereafter able to make their respective arguments to the court in relation to whether payment in full should be made under the circumstances, in what form and over what duration. For example, where there is found to be an undue delay in requesting payment of the arrears, the court may order the amount to be paid be reduced, thereby balancing the interests of both parties in ordering the arrears be paid.

While the four factors noted above from the Supreme Court of Canada’s decision in Kerr, supra will be considered for both child and spousal support, when assessing retroactive support, the underlying analysis differs between the two types of support.

The right of a child to receive support is paramount. Parents have an ongoing obligation to ensure children receive appropriate support. This presumptive entitlement to retroactive support is subject to the date effective notice is given by the claimant to the proposed payor, which, barring any blameworthy conduct, would limit an award for retroactive child support to three years prior to the date effective notice is given (DBS v SRG, 2006 SCC 37) .

Conversely, there is no presumptive entitlement to spousal support. As with an award for ongoing spousal support, the claimant must demonstrate their entitlement to retroactive spousal support. Particularly where the retroactive award is seeking support for a period for which no support had previously been ordered, the claimant will need to satisfactorily explain the reason for the delay in seeking spousal support.

Common ground for retroactive child and spousal support is the court’s treatment of such requests when made on an interim basis. Where a request has made on an interim application for either retroactive child support or spousal support, the court is united in holding that retroactive support will only be ordered where the facts and the law are not in dispute (MacLennan v MacLennan, 2021 SKCA 132, at paras 98-99). While retroactive orders have been made on an interim application, the Court of Appeal in MacLennan characterised these cases as “the exception rather than the rule.” In all other instances, the court seems content in tabling the matters for determination at a pretrial conference or at trial.

Rochelle Blocka is a partner at McDougall Gauley LLP with a litigation practice, focused on family law and estate litigation. In addition to advocating for her clients in court, Rochelle has experience navigating her clients through various methods of alternative dispute resolution.