Recent Developments in Retroactive Child Support – Family and Matrimonial

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Canada: Recent developments in retroactive child support

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Recent decisions in Michel vs. Graydon, 2020 CSC 24 and Colucci vs. Colucci, 2021 SCC 24 have changed the way courts deal with retroactive child support claims and the reversal of child support arrears.

The new approach to retroactive child support interweaves the principles of the leading cases to create a simplified framework. The framework applies to both retroactive increases and decreases in child support.

The Supreme Court of Canada has now clarified that a parent cannot make an original claim for retroactive support under the Divorce Law if the child was independent and over 19 years of age at the time of the application. However, a parent can apply for a change in support for an adult child under the Divorce Law, as long as the adult child remains financially dependent. An original request for adult child support or a request to vary an existing child support order can be made under the Parenthood and Support Act.

The fundamental principle remains that child support is the right of the child. The goal of retroactive child support is to balance the interest of the child in receiving fair support with the interests of parents in flexibility and certainty in child support payments.

The paying parent has an obligation to provide the receiving parent with up-to-date financial information on a regular basis. This is an important factor in retroactive child support given the informational disadvantage of the recipient and the need for parents to pay the appropriate amount of child support.

These considerations resulted in the following framework, which applies to retroactive variations in child support under the
Divorce Law. It is likely that the Nova Scotia Supreme Court will take the same approach for claims under the
Parenthood and Support Act.

  1. Change of circumstances passed.
  • A claimant must demonstrate a past change in circumstances that would likely have resulted in different child support terms, had it been known at the time of the original order or agreement.
  • Usually this is a change in the payor’s income.
  • The change in circumstances cannot be temporary, it must be lasting, and if there is lessening, the change cannot be voluntary.
  • The change was not foreseeable or was not contemplated at the time of the initial initial order.
  • If a paying parent fails to disclose their income, the court is allowed to impute their income and make deductions against them.
  • If a payer’s income has already been imputed by the courts, a payer cannot claim that their imputed income is a change in circumstances.
  1. If the applicant proves a past change in circumstances, there is a presumption that child support should be calculated retroactively from the date the notice was first given.
  • The opinion can be formal, eg. ex. a request to change child support has been filed and served, or informal, p. ex. the applicant informed the other parent that the amount of child support paid was inappropriate.
  • As a general rule, the date of retroactivity can be up to three years before the date of formal notice.
  1. If it is unfair to use the deemed retroactive date, the court may choose to apply a different retroactive date. In determining the appropriate retroactive date, the four
    BS factors of DBS vs. SRG, 2006 CSC 37 are taken into account. They understand
    :

1. Does the applicant have a good reason to delay notification?

  • A claimant must apply for a retroactive change in child support in a timely manner. If they were aware of the change in circumstances and have chosen not to request a change, they will not have a reasonable excuse for their delay.
  • Examples of reasonable excuses include: the applicant lacked the financial or emotional means to apply; the requester lacked information regarding the payor’s income or could not contact the payor; the applicant feared a counter-request for police custody; the applicant was afraid of disrupting a fragile parent-child relationship; the child or parent was ill or disabled; or there were ongoing settlement negotiations.
  • Whether the claimant continued to enforce the arrears is irrelevant.

2. Conduct of the paying parent.

  • If the payor has engaged in reprehensible behavior, this warrants adjusting the retroactive date accordingly. Improper conduct is broadly defined as anything that puts the best interests of the payor ahead of the child’s right to receive appropriate support.
  • The efforts of the paying parent to provide full and ongoing disclosure are an important consideration under this factor.
  • A payer’s willingness to make voluntary payments or to provide assistance indirectly is also taken into account.

3. Past and present situation of the child.

  • This factor relates to the child’s standard of living now and during the period when the maintenance allowance should have been adjusted.
  • In the case of an increase, the child in difficulty supports the extension of the retroactive date to the date of the payor’s income increase.
  • In the case of a decrease, a child in difficulty supports an earlier retroactive date.

4. Difficulties for the paying parent.

  • Difficulties for the payer are taken into account for fairness, but are not a deciding factor.
  • A payer must present proof of hardship. Making affirmations is not enough. The income, earning capacity and assets of the payer are relevant.
  • The difficulties of the payer are weighed against the difficulties experienced by the child and the recipient parent.
  • The payor’s hardship is less of a concern if it was caused by its previous failure to disclose information.
  • The courts will also consider whether retroactive compensation would result in retroactive payment. It is inappropriate to hold the receiving parent responsible for unforeseen repayments.
  1. Quantification of retroactive award.
  • If the court determines that a retroactive adjustment is appropriate and a retroactive date is determined, the next step is to calculate the amount of compensation.
  • The Child Support Guidelines are used to calculate this amount.
  • This requires the paying parent to fully disclose their income for the retroactive period.
  • If the payer does not provide the necessary income information, the court is allowed to impute his income and make deductions against him.
  • A payer must also provide up-to-date financial information if they are seeking a payment plan or a temporary suspension of payments.

A paying parent who has accumulated a child support debt that they cannot repay can request the cancellation of the arrears. This would happen when the child support order and the arrears reflect the income of the payor, but the payor does not have the capacity to pay the arrears. The only relevant factors are the current and future financial position of the payer. A current inability to pay does not necessarily mean that the payer will be unable to pay in the future.

Arrears are only canceled in exceptional circumstances. The courts will first consider any available options such as payment plans or temporary suspension of payments. In order for a claimant to have child support arrears canceled, they must show that they cannot and never will be able to pay the amount of their arrears. An example of where this can happen is when the payor has suffered a catastrophic injury.

In summary, the law on retroactive support and arrears has seen recent developments that parents should be aware of. Meeting continuous disclosure obligations is the best way for parents to avoid retroactive child support issues.

* This article was written with contributions from Dominique Perinchief, partner of Cox & Palmer, and Haneen Al-Noman, summer student.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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