Although child support payments are made from one parent to another, the legal right to child support belongs solely to the children. The amount of child support is set using the Federal Child Support Guidelines and is based on the payor spouse’s income and number of children to support.
Family laws in Canada recognize that the amount of child support may sometimes require adjustment, such as when a parent’s income changes or fluctuates. Under section 17 of the Divorce Act, a court may order “varying, rescinding or suspending, retroactively or prospectively, a support order or any provision of one, on application by either or both former spouses.”
Courts must review the case’s particular circumstances to justify a variation of child support payments and determine whether specific legal criteria are met.
The Supreme Court of Canada reiterated the test for varying child support under section 17 of the Divorce Act in the case of Colucci v. Colucci. The Supreme Court noted the federal child support regime contemplates that “the family as a whole – including the child – will share the rising and falling fortunes of the payor parent, just as they would have before the separation.” As a result, a child support order or agreement is just a “snapshot in time and is never final”.
In Colucci, the Supreme Court of Canada set out the following steps for a payor parent to meet when applying to reduce their child support obligations:
- The payor parent must show there has been a material change in their circumstances – i.e., a decrease in their income that has “some degree of continuity” is real and was not the payor parent’s choice.
- Once the payor parent establishes a material change in circumstances, there is a presumption that the amount of child support will be decreased retroactively, back to the date the payor gave the recipient parent notice of the change. This may apply up to three years before the payor parent applies to the court to vary the amount of child support.
- When notifying the recipient parent of the change in circumstances, the payor parent must clearly communicate the change and provide documentation substantiating the change.
- If the payor parent gave no notice, child support will be varied back to the date of formal notice (or a later date set by the court, particularly if the payor delayed making full financial disclosure).
- The court has the discretion to change the effective date of the increased child support, with consideration of several factors, including:
- Whether the payor parent had an understandable reason for their delay in seeking a decrease;
- The payor parent’s conduct, including their efforts to pay what they can and their communication and disclosure of their income information on an ongoing basis;
- The child’s circumstances; and
- Hardship to the payor parent if their support obligations are not decreased (the court views this in the context of the hardship that will be caused to the child and recipient parent if support is decreased).
- Once the court has determined support should be decreased retroactively to a particular day, the amount of the decrease is calculated using the Federal Child Support Guidelines.
The legal test for increasing child support payments is similar to that used in applications to decrease payments. Per the Supreme Court in Colucci, the following considerations are made when a recipient parent applies for an increase in child support:
- The recipient parent must establish a past material change in circumstances – for example, that the payor parent has experienced a material increase in income. Any failure by the payor to disclose their financial information may result in several court-imposed consequences, including the imputation (attribution) of income to the payor parent and costs awards against the payor.
- Once the recipient parent has established a material change in circumstances, the court will likely retroactively increase the child support amount to the date when the recipient gave the payor notice of their request for an increase (up to three years in the past). Unlike in an application to decrease child support, the applicant seeking an increase only needs to have “broached the subject of an increase with the payor”.
- The court can depart from the presumptive retroactive date using the same factors it would consider for an application to decrease child support. If the payor fails to disclose their material increase in income to the recipient parent, their conduct will likely be found “blameworthy” by the court, and the increase in child support may be applied to the date their income increased. The increase is quantified under the Federal Child Support Guidelines.
The Supreme Court of British Columbia recently applied the Colucci decision in D.D.M. v. J.M.M. In D.D.M., the parents divorced in 2017, and child support payments were ordered by consent of both parties. In 2023, the father brought an application seeking a retroactive decrease in child support payments dating back to 2018. He further requested that his overpayments since 2018 be credited to future support payments.
The Court highlighted the following evidence:
- In December 2022, the father provided the mother with his Notices of Assessment from 2018 to 2021, which clearly showed the decline in his income.
- From January 2018 onward, the father made numerous attempts to exchange financial documentation with the mother, as required by the child support order. However, the mother was continually non-compliant.
- The father continued to comply with his child support obligations, although he paid less per month from January 2021 onward as he simply could not afford the amounts set out in the order, given his change in income.
The Supreme Court of B.C. concluded that the father would suffer hardship if the reduction in his child support obligations were not applied retroactively to January 2018, as he would owe arrears calculated on income he didn’t have. While the father had no assets, the mother was expected to earn $23,000 in disability benefits in 2023 and had listed assets worth $283,000.
The Court determined the retroactive decrease would apply from January 2018 to December 2022, resulting in an overpayment owing to the father for $14,747.
In addition to the father’s application to retroactively reduce his child support obligations, the mother brought her own application seeking to increase those payments going forward. The Court noted the father started a new job in January 2023, which increased his annual earnings. As a result, the Court imputed his new, higher income going forward, raising his monthly payments.
For over three decades, the skilled family lawyers of Meridian Law Group have helped clients navigate complex child support disputes. The firm provides creative, out-of-the-box family law solutions to help resolve disputes as amicably as possible while positioning clients for success in the event of a trial.
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