Gurtej Sandhu – Retroactive child support. Published May 8, 2025
What if you want to retroactively decrease your child support?
John was financially at a good place in his life when he was ordered to pay child support to his ex-spouse by the court. And he was happy to pay it until his financial circumstances changed over which he had little control leading to significant reduction in his income. As time passed, he found it increasingly difficult to continue to pay child support even if he wanted to.
We often come across cases where a recipient parent of child support wants to increase the amount of support they are receiving retroactively (from a point in time in the past). But what about when a payor parent wants to decrease the amount of the child support that they are paying when their circumstances change such as a significant and sustained reduction in income.
In 2021, the Supreme Court of Canada in the case of Colucci v. Colucci, discussed the principles involved in such cases. Let’s consider the above example of John.
- John must show that there was a significant decrease in his income since the order was made and the decrease has continued (long lasting and not short lived). The decrease in his income should be real and not because he had chosen to do so.
- If John establishes the above, the court will see how far it can go back to change the amount of support John should have actually paid and should continue to pay. The court can go as far back as to the date when John gave an effective notice to Jane that he wants to change the child support because of this change in circumstances, up to a maximum of 3 years from the date he notifies Jane of his present application to change the child support. Effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the payor parent’s situation.
- If John does not give effective notice, then the order can only be varied back to the date he notifies Jane of his present application or at a later date if John has delayed making complete disclosure in the course of the proceedings.
- The court can go even further back than 3 years if it thinks it is unfair not to do so based on the following factors
- whether John had an understandable reason for the delay in seeking a decrease;
- his conduct in terms of his efforts to pay what he can and to communicate and disclose income information on an ongoing basis;
- the child’s circumstances; and
- hardship to John if support is not decreased relative to hardship to the child and Jane if support is decreased.
- Finally, once the court has determined that support should be retroactively decreased to a particular date, the new amount of support payment from that date can then be calculated in accordance with the Federal Child Support Guidelines.
With the above principles, the Court has tried to balance the interests of the recipient parent in certainty, the interests of the payor parent in flexibility and the child’s right to support based on income.
Applying the above principles to your own particular set of circumstances can be tricky and complex. If you find yourself in a similar situation, one of our lawyers at Portside law would be happy to assist.
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