SCC provides retroactive child support adjustment framework

By LegalMatters Staff • It wasn’t long ago that there was confusion in family courts when it came to applying the appropriate framework for determining retroactive adjustments of child support obligations. Courts needed to consider a number of factors when considering applications under s. 17 of the Divorce Act. 

However, in Colucci v. Colucci, 2021 SCC 24, the Supreme Court of Canada (SCC) has since provided what is universally seen as the framework for establishing retroactive decreases in child support.

In upholding an Ontario Court of Appeal ruling that found a father owed his ex-wife $170,000 in retroactive child support payments, Canada’s highest court laid out a structure for judges to follow in the “very common” situations where a payor requests a retroactive decrease in ongoing support to reflect a past reduction in income.

The SCC stated that courts across the country “have and need wide discretion to vary child support orders” in order to ensure the amount of support being paid is correct, Edmonton family lawyer Mark Demas noted in his analysis of the case.

Demas states that the Court found “this case provides an example of the kind of inadequate disclosure” that would justify rejecting the father’s application. Not doing that would “incentivize payors to provide inadequate disclosure in the hopes that the court will either accept their assertions or impute income that is lower than the income actually earned.” 

In the end, the SCC recognized that income can fluctuate and a parent responsible for paying child support is entitled to some flexibility, Demas said. At the same time, the Court emphasizes that the protection of child support recipients is essential.