In 2016, the appellant filed a motion to retroactively vary child support and to fix child support arrears (if any), and to determine payments on arrears based on his income. The Motions Judge recalculated and reduced the arrears owed to $ 41,642. The Court of Appeal allowed the appeal in part and set aside the paragraph of the motions judge’s order which reduced the arrears owed. The appellant’s cross-appeal against an award of costs was dismissed and he appealed to the Supreme Court.
The court in that case was asked to decide, first, “the appropriate framework for deciding claims for retroactive reduction of child support under s. 17 of Divorce Law , and second, what is the appropriate framework within which the paying parent seeks to cancel child support arrears under s. 17 based on current and continuing inability to pay? “
In her reasons, Martin J.A. emphasized the long-established principles of child support law in Canada: that children are entitled to a fair standard of support and that parents are required to provide for the financial needs of their children. children from birth and after parental separation. .
She also noted that the courts have and should have broad discretion to vary child support orders “to ensure that the correct amount of child support is paid and to accommodate the enormous diversity of individual circumstances facing families ”.
Three interests must be balanced to decide these cases of retroactive variation, concluded the court; in its decision in DBS v. SRG, 2006 SCC 37, these were defined as i) the best interests of the child to receive the appropriate amount of support to which he or she is entitled; ii) the interests of the parties and of the child in certainty and predictability; and (iii) the need for flexibility to ensure a fair result in light of fluctuations in payors’ income.