In 2021, 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. The approach is different from retroactively increasing support. This is a summary on retroactive reduction cases:
1. Has there been a material change in circumstances (that affects child support)? That could be a change in day-to-day care of the children, or a significant income change. A reduction in income usually does need to be significant, long-term and not voluntary.
2. When did the payor give effective notice of the change to the child support recipient? Effective notice means:
a) clear communication of the change; and
b) documentation and evidence of the change (and change in income).
The income information should be thorough: tax returns, notices of job loss, pay slips, severance pay information, disability income information. Provide whatever income documentation is available to confirm the change and the new income.
3. The starting point is that child support could be reduced retroactive to the date that the “effective notice” was given to the recipient.
This is done because at that point, the recipient may have as much information as the payor about his/her income situation. The recipient knows about the change, when it took place, and what it meant for income: there is no surprise.
4. The Court has discretion to shorten or lengthen the period of retroactive adjustment based on other factors. These include: hardship; reason for the delay; circumstances of the child; payor’s blameworthy conduct.
Not every income reduction will lead to a child support reduction. The Court has to balance the need to support a child, with the certainty and predictability of Court Orders, with fluctuations in income.
But, if you are in this situation, do not delay. Tell the other parent (email provides a record), and provide as much income information as you can. Then, go ahead and deal with it, whether through negotiation, mediation or other court processes.
If you receive notice of an income change, also seek out legal advice to see if a reduction is appropriate, in all circumstances.
For more tips, see Reducing Child Support Retroactively: Income Information is Key or talk to Ceri or another of our lawyers to get information and advice.
– Written by Ceri Chwieros