Retroactive child support is child support that was neither paid nor claimed when it was due. The Supreme Court of Canada (SCC) recently issued a comprehensive decision (Colucci v Colucci, 2021 SCC 24) which provides a framework for how courts address applications for retroactive child support adjustments (both reductions and increases) brought under section 17 of the Divorce Act, R.S.C. 1995, c. 3 (2nd Supp.).
Retroactive Child Support: Pre-Colucci
In DBS v SRG, 2006 SCC 37, the SCC established the general rule that an original retroactive support order can only be granted where the child is a “child of the marriage”. It also outlined four factors to be considered by courts when granting on order for retroactive child support, which take into account the delicate balance between the policy goals of, on the one hand, certainty and flexibility for payors and recipients and, on the other hand, the right of children to be supported in accordance with the means of their parents.
The four DBS v SRG factors to be applied when determining whether an order for retroactive child support is appropriate are:
- Whether there is unreasonable delay by the recipient for why their retroactive support claim was not sought earlier;
- Whether the payor engaged in blameworthy conduct;
- What the circumstances and needs of the child are; and
- Whether there will be hardship caused to the payor by granting a retroactive award.
In practice, this framework proved to be complex and multivariable, making it susceptible to misapplication. Additionally, it allowed payors to avoid their legal obligations if the recipient of support failed to bring the application until after the child in question no longer met the definition of “child of the marriage.” A “child of the marriage” is generally defined as a child who is over the age of majority, is not enrolled in full-time post-secondary education, and is not unable to withdraw from financial dependency on their parents (typically a circumstance of disability as opposed to the income realities that younger people face when entering the workforce). This functionally incentivized some payor parents to not respond to their increased obligations in hope that the payee parent would delay making an application to increase the support until the child lost their status as a “child of the marriage”, which resulted in multiple retroactive child support cases granting substantial and unjustifiable reductions in what would have otherwise been child support arrears, contrary to the legislative objectives of clarity, certainty, and consistency.
In 2020, the Supreme Court in Michel v Graydon, 2020 SCC 24 resolved this issue, finding that there is no jurisdictional bar to granting an order for retroactive child support even after a child is no longer a “child of the marriage”.
Most recently, in 2021, the SCC in Colucci v Colucci further addressed and clarified DBS v SRG, discussing the four (4) factors from DBS set out above and providing a simplified framework to advance clarity, simplicity, and predictability with respect to retroactive child support applications.
Retroactive Child Support: The Simplified Framework Post-Colucci
Where the prior Order corresponds with the payor’s later income:
The presumption is that, even where the payor can demonstrate a material change in circumstances, the support order will be enforced unless, even with a flexible payment plan, the payor “cannot and will not ever be able to pay the arrears”.
This ensures that support owed to children is paid and eliminates the “perverse incentive” to delay payment in an effort to potentially reduce the ultimate amount owed later. If the issue is simply the accumulation of arrears, fairness, and certainty demand that the order be enforced. Certainty and fairness, from this perspective, includes not only the payor/recipient before the Court but all payors and recipients: the payor who delays an adjustment in child support ought not to have a lesser ultimate obligation than the payor who adjusts child support in real time as appropriate.
The SCC further clarified that a stable income that does not materially fluctuate should not give rise to flexibility in a payor’s Child Support Guideline obligation.
For example, if the amount of child support payable is appropriate, based on the payor’s income, but significant arrears have accumulated due to non-payment, following the Michel and Colucci decisions it is unlikely that the payor will be successful in an application to reduce or eliminate those arrears.
Where the prior order overestimates the payor’s later income:
If the payor can demonstrate a material change in circumstance (usually a decrease in income), the support order can be retroactively decreased to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. Effective notice must include full financial disclosure. Effective notice also requires clear communication of the change in circumstances and the disclosure of any available documentation necessary to substantiate the change so the recipient can meaningfully consider and appreciate any revised obligation. A payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order.
If the payor fails to provide reliable income information, they should not benefit from the presumption that the child support amount should be decreased. This ensures flexibility for payors whose ability to pay is reduced, but also protects certainty for recipients given information asymmetry.
This puts the onus on the payor parent – the party that has access to the information, to advise the recipient in a timely manner and with supporting documentation that there has been a change in circumstances that justifies a reduction in the child support payable.
Where the prior order underestimates the payor’s income:
When a child support order underestimates the payor parent’s income, the presumption is that it will be retroactively increased to the date that the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. Effective notice in this context requires only that the recipient raise the subject of an increase with the payor. This low bar is justified by the recipient’s informational disadvantage.
This presumption helps to ensure that the appropriate level of support is paid and disincentivizes underpayment. Fairness and certainty favour the enforcement of the obligation.
For more information on retroactive child support, please contact any member of the SVR Family Law Group.