What if you or your former partner want to reduce child support retroactively? That is, re-calculate and reduce the child support already paid or that has accumulated as arrears.
The Supreme Court of Canada, in the case of Colucci v Colucci 2021 SCC 24, weighed in on the relevant factors that should apply if a payor parent seeks to reduce his or her child support payments retroactively.
This situation can arise where the parent paying child support experiences some kind of reduction or loss in income. The retroactive element means that the payor is asking for the change to take effect earlier, (sometimes years earlier).
Child support is based on income, and income can change. Ideally, parents exchange full income information and update child support each year, or as necessary. If there is a delay, that is where the “retroactive” element comes in. A retroactive reduction to child support, even if income has decreased, is not automatic: there are several factors to balance.
The most important takeaway from this case and other provincial decisions is: that timely income disclosure is key for retroactive reductions of child support.
Timely disclosure means to provide to the other parent:
- clear communication of the change in financial circumstances (and seeking to reduce child support); and
- the documents and disclosure that is available to back up this change.
If there has been a job loss or job change, for example: to provide the termination notice, pay reduction notice, pay slips, disability pay information, tax returns, or severance package information.
This communication and information puts the other parent on notice that there has been a reduction in income and the payor parent is asking for the support to reduce. It provides the recipient parent with enough information to make an informed decision. This does not guarantee that a change in support will take place, as there are other factors, but the payor parent providing the basic income information is crucial.
The message is: don’t delay. If your income has reduced, let the other parent know with as much information as you can, as soon as possible. Then, move to a process to determine if support should decrease: legal advice, DRO, mediation, court.
– Written by Ceri Chwieros