Introduction

As the calendar has flipped and we are in a new year, things often seem possible in January that didn’t look that way in December. A fresh start for some, perhaps a chance for a better year ahead. It’s why gym memberships increased rapidly in the new year. Hope springs eternal!

But one of the things that family law lawyers see in the new year is a renewed sense by recipients and payors to revisit an old, but existing, child support obligation. From a child support recipient’s point of view, they may wonder in January whether the last year (or several of the last years) has been better for the payor’s bottom line than they have disclosed or let on. Most, if not all, court orders or agreements require the parties to exchange updated financial information on a yearly basis, such as on the anniversary date of the court order, the anniversary date of the agreement, or by a set date such as May 31st of each year.

What happens if the payor does not do so? What if the payor refuses to do so? What happens if the recipient does not ask? What if the recipient is afraid to ask for fear of stirring up memories of the payor’s abuse or coercive control? What if the payor has not been seeing the child/children and the recipient wants to leave well enough alone, and not awake the sleeping bear? On the other hand, what if the support payor has had a decrease in their income and has not bothered to revisit the matter for personal reasons, such as other having other pressing priorities, ignorance of the process, or fear of the recipient withholding the child/children from them as a retaliation for trying to reduce child support retroactively? Lots of questions to consider. That “new year feeling” might be fading pretty quickly.

This blog will focus on whether a recipient is able to address the issue of retroactive child support from the other party. For simplicity, I will focus on the support recipient’s point of view, not the support payor’s, although I am often representing the latter, not the former. I will briefly address the issue of bringing a motion to change, which is the step that triggers a retroactivity analysis, and I will go through a “somewhat recent” Supreme Court of Canada test that has added some light on the analysis. As with all my blogs, this will not be a comprehensive analysis of the topic, but rather, it will be a basic introduction of the topic, to allow parties to consider whether to make (or defend) a claim for retroactivity in the first place. As with all legal topics, before proceeding, you should seek legal advice from a family lawyer who can offer you advice that is tailored to your specific legal situation.

Step #1: The Motion to Change

If a party believes they have received insufficient amount of child support for far too long, then they would bring a motion to change the order or agreement that provides for the child support and ask that that the effective date of the change be retroactive to a date in the past (in other words, that it be backdated).

Before we discuss the backdating issue, to bring successful bring a motion to change an order or agreement, the person seeking the change must prove that:

  1. there has been a change in circumstances that warrants a revisitation of the order/agreement;
  2. the change is a material one, i.e. it is a significant change, not a trivial one; and,
  3. the change was not known or contemplated at the time of the order/agreement was made.

The law provides that the parties must try and resolve this out of court first, failing which either party may then proceed to court to address and resolve the variation.

Step #2: The Date of Effectiveness

If a party is looking at making the order retroactive (backdating the order), the party seeking the change needs to set out why the order should be backdated in the first place. In the case of a support recipient who is seeking a retroactive increase, the Supreme Court of Canada decided a case and set out a test for parties to follow. In Collucci v. Collucci (2021 SCC 24), the court set out the framework that should be applied in such cases.

  1. 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 (3) years before formal notice of the application to vary. In the increase context, effective notice requires only that the recipient broached the subject of an increase with the payor.
  1. Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.
  1. The court retains discretion to depart from the three-year rule of a presumptive date of retroactivity where the result would otherwise be unfair. For example, 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, which may be well-beyond the presumptive three-year rule.

Let’s look at a couple of scenarios. John and Jane were married in 2008, separated in 2014, and had final court order in 2015 that a) required John to pay Jane child support for their one child, and b) required both parties to exchange notices of assessment every May 31st, starting in 2016.

Scenario 1: If John and Jane provided one another with annual disclosure every May 31st, then Jane could only seek a retroactive increase going back 3 years. Presuming we are in January 2025, she can go back to January 2022.

Scenario 2: If John did not provide Jane with annual disclosure every May 31st, Jane could only seek a retroactive increase going back 3 years. Presuming we are in January 2025, she can go back to January 2022.

Scenario 3: If John has never not provided Jane with his annual disclosure every May 31st, and Jane was too afraid of John’s annual email threats that he would seek custody of the child if she sought an increase, Jane could seek a retroactive increase going back to January 2016.

Step #3: The Amount to Be Increased

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.

Reasons for Delay

As with most novel cases, the Colucci test simplified things for family law, it also created opportunities for parties to argue over how the delay in a support recipient’s request for child support would impact the claim for retroactivity. The case law suggests as follows:

  • In considering delay in applying for increased support, courts should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support
  • A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted
  • inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted
  • A delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. A delay motivated by any one of the reasons set out below should generally not be understood as arbitrary:
    • Fear of reprisal/violence from the other parent.
    • Prohibitive costs of litigation or fear of protracted litigation.
    • Lack of information or misinformation over the payor parent’s income.
    • Fear of counter-application for custody.
    • The payor leaving the jurisdiction or the recipient unable to contact the payor parent.
    • Illness/disability of a child or the custodian.
    • Lack of emotional means.
    • Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement.
    • Ongoing discussions in view of reconciliation, settlement negotiations or mediation.
    • The deliberate delay of the application or the trial by the payor.
  • These situations raise issues of impracticability and inaccessibility to justice on the one hand, and on the other fear and danger.

For a great analysis, please see the recent case of Juhmi v. Douglas, 2025 ONCJ 14 that takes the parties thorough a case where the recipient was successful in seeking a retroactive order back to 2014. As usual, Justice S. Sherr of the Ontario Court of Justice takes the reader from point A to point B (and points beyond) in a methodical and simplified manner.

What About Reducing Support Obligation?

Fear not, child support payors. The retroactivity test as set out in Colucci applies equally to when a payout wishes to reduce his child support arrears retroactively. In fact, in Colucci, it was the support payor who brought the motion to change. In that case, the parties were married in 1983 and divorced in 1996. The father was required to pay child support. The father’s child support obligations ended in 2012. From 1998 to 2016, the father made no voluntary child support payments and only limited sums were collected through enforcement mechanisms. During the period in which the arrears accrued, the father was absent from the children’s lives and his whereabouts were unknown. In 2016, the father applied to retroactively reduce child support and rescind the arrears of approximately $170,000. He provided little documentation or financial disclosure to support his claims.

At the first level of the motion to change proceedings, the motions court retroactively decreased the father’s child support arrears. The mother appealed that decisions to the Court of Appeal, which overturned the decision and ordered that the father pay the full amount of the arrears that were owing. The father appealed that decision to the Supreme Court of Canada, and in 2021, they decided that the father’s appeal should be dismissed. In its decision, the court stated:

In building a framework for cases involving the variation of child support and the rescission of arrears, three interests must be balanced to achieve a fair result:

  1. the child’s interest in receiving the appropriate amount of support to which they are entitled;
  2. the interest of the parties and the child in certainty and predictability; and,
  3. the need for flexibility to ensure a just result in light of fluctuations in the payor’s income.

The child’s interest in a fair standard of support commensurate with income is the core interest to which all rules and principles must yield. A fair result that adequately protects this interest will sometimes lean toward preserving certainty, and sometimes toward flexibility.

Conclusion

As you can see, despite the best of intentions, and a well-written pronouncement by the highest court of the land, the law of retroactive child support is not always clear cut. This is what drives clients crazy, but which needs to be flexible so as to ensure that justice is served, primarily for the affected child/children, and secondarily, for the payor and recipient. If the world were black-and-white, there would be no need for lawyers, and I would be doing something else with my life/career. But the world we live in is quite gray, and as such, clients need lawyers who can help them and advise them, whether they are seeking a reduction in the amount they owe, or an increase in the amount they are seeking.

Remember, every case is unique, just like you are. If you are facing real legal problems, you need the right legal solutions. Please contact Runco Law at 289-799-3080 or email me at carm@runcolaw.ca.