BACKGROUND
The Parties, D. E. S. A. (the father) and N. B. (the mother), are separated parents of a 5-year-old child. The parties cohabitated briefly and separated either in May or August 2020. Since separation, the child has primarily resided with the mother in Toronto.
The father filed an application for parenting and support orders. On September 27, 2024, the mother filed her Answer and included a request for retroactive child support back to May 30, 2020, based on an imputed income of $55,000 to the father. The father opposed retroactive child support and argued that any child support owed should be based on a lower imputed income, reflecting his financial and educational circumstances.
THE LAW
The Family Law Act (FLA) section 34(1)(f) grants courts authority to make retroactive support orders.
Colucci v Colucci, 2021 SCC 24, set out the appropriate framework that must be applied for applications to retroactively increase support. For original claims, and not variations of existing orders, the court applies a modified three-step analysis:
- Determine the presumptive start date. This is typically the date of effective notice, where the recipient parent indicated support was needed or should be increased, but not more than three years before formal notice.
- Assess whether to depart from the presumptive date based on factors outlined in D. B. S. v S. R. G., 2006 SCC 37. These factors include analyzing the reasons for the delay in seeking support, blameworthy conduct by the payor, circumstances of the child, and hardship to the payor.
- Quantify the support owing for each relevant year in accordance with the Child Support Guidelines.
The court in Michel v Graydon, 2020 SCC 25, determined that retroactive child support is a debt. By default, it should be awarded unless there are strong reasons why it should not.
ANALYSIS
Presumptive Start Date
Since the mother did not file substantial evidence addressing the Colucci framework, she did not provide a date when she first indicated the issue of increased support. The only evidence the mother provided was that she was continuously asking the father for more support.
The court, therefore, found that the mother gave effective notice to the father on September 1, 2020. However, since the presumptive start date cannot be more than three years before the date of formal notice (September 27, 2024), the court held that the presumptive start date for support shall be September 27, 2021.
Departing from the Presumptive Start Date
- Reasons for Delay: The mother provided limited reasons for her delay in seeking more support. However, the court found that a major reason for the mother’s delay in coming to court was that the parties had a shared parenting arrangement from May 2023 until August 2024.
- Blameworthy Conduct: The court found that the father engaged in some blameworthy conduct by paying the mother inadequate child support in 2021. Further, he did not pay child support for several months in the fall of 2024. However, the father’s failure to pay child support during the period of a shared parenting arrangement was not considered to be blameworthy conduct.
- Circumstances of the Child: The child’s circumstances have not been disadvantaged because of the father’s failure to pay adequate support. Both parties had limited finances.
- Hardship: The court determined that a retroactive child support order will cause the father some hardship as a result of his limited finances, but this can be addressed through a payment schedule.
Quantification of Support
After reviewing the father’s finances, the court determine that he had deliberately underemployed himself starting in 2023. The court imputed income of $41,600 per year from the beginning of 2023.
The father was ordered to pay retroactive child support from October 1, 2021, to April 30, 2023, and starting again on September 1, 2024. The period of May 1, 2023, to August 31, 2024, was excluded as a result of the shared parenting arrangement.