Written by Jason Hansra
The SCC, in D.B.S v. S.R.G. 2006 2 SCR 231, found that when you attempt to retroactively vary a child support agreement, you must establish a “material change” in circumstances. Consequently, the courts presumptive three-year rule, which is an automatic timeframe of retroactivity, is triggered.
However, In June 2021, the Supreme Court of Canada (the “SCC”), in Colucci v. Colucci, 2021 SCC 24 (“Colucci”), expanded the legal framework that is to be used when trying to retroactively decrease child support or cancel arrears. This decision shed light on the obligations that are placed on the payor parent to uphold their financial duty to their children. The goal of the courts is to establish that the children involved in receiving retroactive child support, at that time, are truly owed it.
The SCC established the following four factors, which allow the courts to use their discretion and depart from this presumptive timeline:
- has an understandable reason been provided by the applicant for the delay of financial disclosure;
- is there any blameworthy conduct on the payor’s part that has the effect of privileging the payors interests over the child’s right to the support;
- if the recipient parent is being asked to pay back parts of the support, will it detrimentally affect the child. A variation application will only be granted if the effects to the child are negligible; and
- is there a valid hardship claim made by the payor.
Thus, the SCC in Colucci, has provided a clear and concise legal framework for child support variation claims. Ultimately the child’s interests are paramount to everything, including the payor’s interests.