Over the years, case law has helped provide a framework for applications concerning the retroactive variation of child support obligations. Previous judicial commentary has acknowledged that child support is the child’s right and that parents are obligated to support their children financially. However, child support awards may be varied in circumstances where it can be justified that a parent has experienced a material change in circumstances. When such a change occurs, the payor parent must provide notice to the recipient parent, but what constitutes effective notice?
The case of Colucci v. Colucci provided a framework for scenarios where a payor parent seeks to reduce their child support obligations retroactively. In this decision, the Supreme Court of Canada explained that the choice of the presumptive date of retroactivity involves balancing competing interests. Generally, when the payor parent establishes a material change in circumstances, there is a presumption that child support will be varied to the date of effective notice. This presumption was intended to strike a balance between the competing interests of certainty for the recipient parent and the payor’s interest in flexibility.
In Colucci v. Colucci, emphasis was placed on the recipient parent’s informational disadvantage and their need for certainty of support payments, as the recipient parent’s existing budget and financial commitments were based on a certain amount of income which included child support. Since a retroactive decrease of child support obligations results in less funds being available to the recipient parent, the Court noted that “it will generally be more difficult to adjust to the receipt of lesser, rather than greater amounts of support, increasing the likelihood and severity of hardship.”
A decrease in a parent’s income can be expected to result in a decrease in a child’s standard of living, therefore, payor parents should promptly communicate any change to their income to the recipient parent.
For the courts, disclosure is key to cushioning the impact of decreased child support obligations. However, “effective notice” to the recipient must be interpreted against an informational asymmetry between the parties.
The decision in D.B.S. v. S.R.G. held that when a recipient parent seeks a retroactive increase in support obligations, the notice requirement is met “simply by broaching the topic of a potential increase.” This low standard was justified in this instance because the payor parent had knowledge as to when their income increased and, therefore, could reasonably expect that an increase in child support would be warranted.
However, the situation and standards differ when a payor parent seeks to decrease a child support award. In D.B.S. v. S.R.G., the Court decided that it was not enough for the payor parent to simply broach the topic of a support reduction. In these circumstances, the payor parent seeking a retroactive decrease in child support had the informational advantage and setting the date of retroactivity encourages the payor parent to communicate with the recipient parent. Here, the Court noted that both the timing and extent of the disclosure are considerations when determining if, and when, effective notice has been given.
The decision in Colucci v. Colucci set out a framework where child support obligations can be retroactively reduced to the date of the effective notice. However, the question remains, what type of notice is actually required of a payor parent?
The central issue in the case of E.J v. K.A was whether an existing court order setting out the father’s child support obligations should be varied. The father sought to have his child support arrears of over $28,000 cancelled and also proposed that his child support obligations for his two children should be reduced from $2097 to $100 per month. The mother opposed the variation and argued the existing order should be left unchanged. The original consent order was determined based on the father’s annual income, which was comprised of his employment in Nunavut, as well as his pension income from Nigeria. The father’s motion to vary his support obligations occurred due to an alleged material change in circumstances due to a mental health matter which placed him on sick leave from his job in Nunavut along with his planned return to Nigeria.
The father had the burden of proving that a material change in circumstances had occurred, as he was the party requesting a variation. In assessing this request, the Court had to consider a scenario where the “new” circumstances existed when the consent order was prepared, would the parties have come to a different agreement? Moreover, the Court in Gray v. Rizzi stated that a material change required some continuity and “not merely a temporary set of circumstances.”
Here, the Court did not accept that the father’s proposed return to Nigeria was a material change in circumstances, as this was merely a possibility and no concrete plans had been made given the state of the global COVID-19 pandemic. However, the father’s employment situation did constitute a material change in circumstances. The order was premised on his employment income, and because of a legitimate mental health issue, that income had changed as he was on sick leave without pay for more than one year.
The Court concluded that the father likely would not have consented to the terms of the consent order if his subsequent sick leave and lack of income could have been known at the time the order was prepared. However, looking at the decision in Punzo v. Punzo, the Court recognized that the mere finding of a material change in circumstances does not end the analysis, as Courts must still determine what alteration in support is justified by the changed circumstances.
In the case of E.J. v. K.A., the father’s counsel sent the mother an email providing notice of the father’s request to reduce child support. However, the email contained only six lines of text and included no information from the father’s employer or a health care provider, nor did not state why the father was on sick leave. Consequently, the judge found that the mother’s hesitation in consenting to the reduction was understandable.
In order for the notice to be effective, additional details were required to be provided to the recipient parent. The father also waited eleven months after the email to bring the motion before the Court. This delay was not justified and would prejudice the mother and children who depended on the support arrears. Despite the initial email sent on October 31, 2019, the judge concluded that any changes would not take effect until October 1, 2020.
The father appealed the case to the Ontario Court of Appeal, however, the Court dismissed the appeal.
The experienced family lawyers at NULaw help clients navigate a wide range of family law issues, including divorce, child support and post-divorce variation applications. Our lawyers work quickly and diligently to ensure that you and your family are protected now and can confidently move forward from any dispute. To arrange a confidential consultation with a member of our family law team, reach out to us online or call us at 416-481-5604.