This topic as a blog is so extensive that I have to break it down into three blogs. So in this first blog, I will only talk about some basic principles related to retroactivity of child support.
In Colucci v. Colucci, 2021 SCC 24, the court set out the framework that should be applied for applications to retroactively increase support in paragraph 114 as follows:
a. The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.
b. Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date 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. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.
c. Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.
d. The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S.factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.
e. Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.
The first step will be to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors[1] will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 25. The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.
Analysis:
Retroactivity of child support is one of the most complex areas in a child support analysis. There have been numerous court cases just on this topic. The above is the first of three analytical pieces that we will do through these blogs.
The main take away from the above principles is that you don’t need a material change to show that the payor has a responsibility to retroactively pay child support.
Another take away: If you are a payor and generally the father, you have an obligation towards your children from the time of their birth until they become adults to pay for child support especially if you are a payor and the non-custodial parent or even if you share 50% time with your spouse. Colucci makes it difficult to escape your responsibility. A payee can come after you after many years.
We can definitely help you at Shankar Law to understand the law, to review your options and to determine the strategic way forward.
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