BACKGROUND

The parties in this case cohabited from 2016 to 2018 and have two children, aged 8 and 5. The father has a total of 13 children with four women.

In November 2018, the mother initiated court proceedings, seeking parenting orders and child support. By consent, the court granted the mother final decision-making responsibility for the children in August 2019, with the father receiving reasonable parenting time upon reasonable notice.

On May 11, 2021, by consent, the existing Order was made. The court ordered the father to pay $600 per month in child support, based on his annual income of $54,000 and a claim of undue hardship due to his support obligations to multiple children.

In October 2023, the mother filed a Motion to Change the existing child support order, seeking, among other things, an increase in child support. She also sought retroactive changes to child support dating back to the original Order dated May 11, 2021. The father opposed the Motion, citing undue hardship arising from his financial obligations to 11 of his 13 children.

THE LAW

The court's authority to adjust child support, including retroactive changes, is governed by subsections 37(2.1) and 34(1)(f) of the Family Law Act. Subsection 37(2.1) allows the court to vary, suspend, or retroactively adjust child support orders when there has been a change in circumstances or the introduction of new evidence that was not available at the time of the original order. Clause 34(1)(f) explicitly permits the court to order support for any period prior to the date of the order.

The Supreme Court of Canada in Colucci v Colucci, 2021 SCC 24 (“Colucci”), outlined the framework for retroactive child support increases. To establish eligibility for a retroactive increase, the recipient must demonstrate a material change in circumstances, such as a significant income increase by the payor. Failure by the payor to disclose financial information can lead to adverse inferences and income imputation. Retroactive increases generally apply from the date the recipient gave the payor effective notice of the claim, up to three years before formal notice. However, if no effective notice was provided, retroactivity typically starts from the date of formal notice. Courts also retain discretion to adjust the retroactive start date for fairness, considering the following factors:

1. Whether the recipient spouse has provided a reasonable explanation for the delay in applying for support;
2. The conduct of the payor parent;
3. The circumstances of the child;
4. The hardship that the retroactive award may cause.

When determining whether child support should be reduced due to the payor’s claim of undue hardship, the court must apply a three-part test under Section 10 of the Federal Child Support Guidelines:

1. The payor must demonstrate that there are specific circumstances causing undue hardship, such as unusually high debts, high expenses related to access to the child, or a legal duty to support other individuals;
2. The payor must show that their standard of living is lower than that of the recipient parent, meaning the recipient has a higher standard of living despite the child support payments;
3. If the first two conditions are met, the court has the discretion to adjust the child support amount based on the needs, means, and circumstances of the parties involved.

The payor must also prove that the hardship is exceptional, excessive, or disproportionate, not merely inconvenient. Additionally, they must provide adequate supporting documentation to substantiate their claim of undue hardship.

ANALYSIS

Issue #1: Has there been a material change in circumstances since the date of the existing Order?

The court in this case held that there had been a material change in circumstances. The father's income increased significantly from $74,256 in 2021 to $111,465 in 2023, and his current salary is $93,500. This increase, along with the fact that the father is no longer supporting his two eldest children, warranted a reassessment of the existing child support order under the Colucci framework.

Issue #2: What is the presumptive start date to change support?

Under the Colucci framework, the presumptive start date for changing child support is determined by the date of effective notice, which occurs when the recipient parent indicates that child support needs to be paid or renegotiated. In this case, although the mother mentioned her financial difficulties to the father, she never explicitly requested an increase in support. As such, the court found that effective notice was given when the mother formally issued her Motion to Change in October 2023, establishing this as the presumptive start date for the support adjustment.

Issue #3: Should the court deviate from the presumptive start date?

The court first considered the mother's delay in seeking a change to child support. Although she delayed her Motion, the court held that her reasons were understandable since the father failed to provide the required annual financial disclosure, leaving her unaware of his increased income. The court also identified blameworthy conduct by the father, including his failure to disclose income increases and his breach of financial disclosure Orders. The court also found that the children's circumstances were also financially disadvantaged due to inadequate child support and the mother struggled to meet their needs. The court ultimately determined that a retroactive support Order starting on January 1, 2022, was fair, considering both the mother's hardship and the father's failure to comply with disclosure orders.

Issue #4: Calculation of Child Support Arrears

The court calculated the father’s retroactive child support obligation from January 1, 2022, to June 2024, totaling $43,164 based on the Federal Child Support Guidelines. During this period, the father paid $18,500 in monthly support, leaving an outstanding balance of $24,664 owed to the mother.

Issue #5: Should the father's Guidelines table obligations be reduced in any year due to his undue hardship?

The court accepted the mother’s proposal to reduce the father’s 2022 child support payments to $868 per month, resulting in a savings of $3,852 for the year. While the father claimed undue hardship due to his financial obligations to other children and high transportation costs, the court found no hardship for 2023, as he failed to prove that his household had a lower standard of living than the mother’s. However, due to a significant income decrease in 2024, the court reduced his monthly child support payments from $1,392 to $1,016, saving him $2,256 for the year. The additional support arrears owing by the father to the mother arising from this decision were $18,556. The court permitted the father to pay the arrears at $100 per month, provided he maintained all of his support payments to the mother in good standing.