Recent Developments In Retroactive Child Support

• Published date: 22 July 2021
• Subject Matter: Family and Matrimonial, Family Law
• Law Firm: Cox & Palmer
• Author: Ms Andrea Pierce

The recent decisions in Michel v Graydon, 2020 SCC 24 and Colucci v Colucci, 2021 SCC 24 have changed how the courts address applications for retroactive child support and the rescission of child support arrears.

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

The Supreme Court of Canada has now clarified that a parent cannot bring an original application for retroactive support under the Divorce Act if the child was independent and over the age of 19 at the time the application was made. However, a parent may bring an application to vary support for an adult child under the Divorce Act, as long as the adult child remains financially dependent. Either an original application for support of an adult child or an application to vary an existing child support order, can be made under the Parenting and Support Act.

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

The payor parent has an obligation to provide the recipient parent with their updated financial information on an ongoing 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 is applicable to retroactive variations of child support under the Divorce Act. It is likely that the Nova Scotia Supreme Court will adopt the same approach for applications under the Parenting and Support Act.

1. Past Change in Circumstances.

• An applicant must show a past change in circumstances that would have been likely to result in different child support terms if known at the time of the original order or agreement.
• This is usually a change in the payor's income.
• The change in circumstances cannot be temporary, it must be long lasting and in the case of a decrease, the change cannot be voluntary.
• The change could not be foreseen or was not in contemplation at the time of the initial original order.
• If a payor parent fails to disclose their income, the court is permitted to impute their income and draw inferences against them.
• If a payor's income...