On June 4, 2021, the Supreme Court of Canada rendered the decision Colucci and Colucci (2021 SCC 24 (CanLII)), reminding child support payors that the onus is on them to provide up-to-date, full and frank disclosure regarding changes to their income to the recipient parent in a timely fashion if they expect their support obligations to reflect decreases in their income.
The court reiterated principles set out in previous decisions (known as “D.B.S.”) that child support is the right of the child, that parents have a financial obligation to the children arising at birth and continuing after separation, and that a payor parent is always under a freestanding legal obligation independent of any court order to pay child support commensurate with their income. In D.B.S., the Supreme Court of Canada set out four factors it will consider in exercising its discretion regarding how far back the retroactivity should extend:
- the recipient’s delay in seeking retroactive support
- the payor’s conduct
- the child circumstances, and
- hardship entailed by a retroactive award
In the D.B.S. decision, the recipient parent was seeking a retroactive increase based on the payor’s increase in income. It considered three years from the date of “effective notice” to be the general rule, subject to the factors set out above. For example, if the payor engages in “blameworthy conduct”, the court may exercise its discretion beyond the three years. It suggests such behaviour would include the payor’s failure to disclose material increases (changes) in income. Basically, the court adopts the principle that the payor has exclusive control over information regarding their income, and failure to disclose all information relevant and necessary to determine their income is blameworthy conduct.
When considering whether a court should provide relief to a payor seeking a retroactive reduction of child support, the court will look at reliable evidence to determine when and how far the income fell and ascertain whether the change was significant, long-lasting, and not one of choice. The court will not look kindly on a payor who does not fully disclose their income or tries to shield their income behind a protective wall.
The court further reiterated that the best interests of the child require predictability and stability of household finances. It is reasonable to expect that both parents seek certainty and predictability around budgeting so that they can provide for their children, and to do so in accordance with income available to them. If there are changes in the financial circumstances of the payor, it behooves them to immediately notify the recipient parent with real evidence showing that the change is significant, outside of the control of the payor, and long lasting. In doing so, the payor shields themself from an allegation of bad faith or that they failed to provide “effective notice”. The three year rule in D.B.S. is presumptive to incentivize a parent seeking retroactive variations to be proactive regarding their disclosures and engaging in steps to change the support amount in a timely manner.