Maggie House, Published February 12, 2023
Are you entitled to a historical child support award of more than 3 years back?
There is a presumption that child support is limited to 3 years from when the recipient parent gives notice to the payor parent. In 2021, Supreme Court of Canada revisited the law on historical child support arrears, also known as “retroactive” child support, in the case of Colucci v. Colucci, 2021 SCC 24 (“Colucci”). Colucci emphasized that the 3-year rule was a presumption only, and one that can be rebutted.
Preceding Colucci, the authority on assessments of child support arrears applications was found in the 2006 Supreme Court Decision, D.B.S. v. S.R.G., 2006 SCC 37 (“DBS”). This case established that an award of historical support is based on an assessment of four factors: 1) The presence of a reasonable excuse of the recipient parent for not seeking support earlier; 2) Blameworthy conduct by the payor parent; 3) The circumstances of the child; and 4) Hardship occasioned by an award for historical support. If the factors indicated that an award was appropriate, absent blameworthy conduct by the payor, an award was limited to 3 years back from the date the recipient gave notice to the payor of their intent to pursue child support.
Drawing on its own reasoning in the prior decision of Michel v. Graydon, 2020 SCC 24, Colucci re-visited the law in DBS, clarifying the legal principles around historical child support awards, modifying and repositioning the 4 factors from DBS.
The court in Colucci created a presumption in favour of historical awards upon the recipient establishing a change in circumstances, such as a change in the payor’s income, or a change in the child’s primary residence. Once a change in circumstances is shown, the only question to be answered is how far back the award should go.
The court assesses the four factors in DBS, as modified by Colucci to answer this question:
Factor 1: An Understandable Delay
It is no longer required to establish a “reasonable excuse”, rather, only the much lower standard of an “understandable delay”.
Importantly, the court recognized social factors that affect delays in bringing court applications for historical support. These social factors include aversion to the length of the litigation process, a lack of emotional and material resources, misinformation about the payor’s income, fear of violence or reprisal by the payor and ruining the parent-child relationship.
Factor 2: Blameworthiness
Any action that has the effect of placing the payor’s own interests above the child’s interests is blameworthy. The payor’s intentions are rarely relevant to this assessment.
Factor 3: Circumstances of the Child
The court will assess the child’s current circumstances, and what the effect of an award for child support or a variance of child support will have on the child.
Factor 4: Undue Hardship
While the court will assess the hardship borne by the payor of making an award for historical child support, it also assesses the hardship on the recipient parent and the child. If the child experiences hardship from the absence of or inadequate child support paid to the recipient parent, this may favour a decision towards a longer period of payment of historical support.