BACKGROUND
The parties have one child who always lived exclusively with the mother and had no relationship with the father. In 2003, on consent, Justice Brownstone ordered the father to pay $700 per month in child support and $305 per month in section 7 expenses, based on an imputed income of $89,100, with arrears fixed at $6,200.
In 2019, the mother brought a motion to change, seeking to retroactively increase support based on an imputed income to the father of $250,000 as of December 1, 2018, seeking arrears of $263,412. The mother subsequently amended her motion to change, expanding her claim to seek retroactive support dating back to August 1, 2003, in the amount of approximately $1.4 million.
The mother moved to strike the father’s response to her motion to change. Although the court initially declined to do so, it ultimately struck the response after the father breached multiple court orders and failed to provide required disclosure. The court then set the matter down for an uncontested trial.
At trial, the court found the mother to be a credible and reliable witness, whereas the father was not. The court noted, “It became apparent in this proceeding that the court could not trust anything the father said and that it could not rely upon any documentation he provided.” The court found that the father had deliberately misrepresented his assets and income to the court and had been doing so since 2000 to avoid his support obligations.
THE LAW
In Colucci v Colucci, 2021 SCC 24 [Colucci], the Supreme Court of Canada set out the framework that should be applied for retroactive applications to increase support as follows:
- Threshold Test: The recipient must first demonstrate a past material change in circumstances. Although the recipient bears this initial burden, courts can impute income, draw adverse inferences, strike pleadings, and award costs where the payor has failed to provide full and timely financial disclosure.
- Presumption of Retroactivity Upon Effective Notice: If a material change is established, a presumption arises in favour of retroactively increasing support to the date the recipient gave the payor effective notice, up to three years before formal notice of the variation application. In the context of increases, effective notice does not require detailed information—it is sufficient that the recipient raised the issue of increased support with the payor, acknowledging the informational imbalance between the parties.
- No Effective Notice: Where the recipient parent gave no effective notice, retroactive support should generally be awarded from the date of formal notice of the variation application.
- Discretion to Depart from the Presumptive Date: Courts may depart from the presumptive date if it would be unfair to do otherwise. This discretionary analysis is guided by four factors (from D.B.S. v S.R.G):
- Whether the recipient has provided a reasonable excuse for the delay in applying for support;
- The conduct of the payor, including any blameworthy behaviour (which includes failure to disclose a material increase income);
- The circumstances of the child;
- Any hardship the retroactive award may cause.
- Calculation of Amounts: Once a retroactive date is set, the court must quantify the retroactive support. This involves calculating the proper amount for each year since the retroactive date in accordance with the Federal Child Support Guidelines, including both table support and section 7 expenses. The same legal framework applies to both types of support.
APPLICATION
Has there been a material change in circumstances regarding child support?
The court found that the mother “easily” satisfied the first part of the test, as the court found that the father seriously misrepresented his income in the original court action.
What is the presumptive start date when child support should be changed?
The court found that the mother gave effective notice by July 1, 2009, as she testified that she asked the father for increased child support sometime in 2009. The mother testified that the father reacted with hostility and, on one occasion, waved a $100 bill in front of her and said he would give her more child support in exchange for sexual favours.
While formal notice is often the date the motion to change is served on the payor, in this case, the mother incorrectly commenced a motion to change the existing order in the wrong court in 2017, and as such, had to withdraw that motion to change. However, the court found that the father had formal notice of her intention to seek increased child support no later than March 1, 2017, as he was aware that the mother had initiated a court proceeding and actively evaded service.
The Supreme Court of Canada’s decision in Colucci sets out that the presumptive start date for retroactive support cannot be more than three years before the date of formal notice. Accordingly, the court found that the presumptive start date for the support increase is March 1, 2014.
Should the court depart from the presumptive start date?
Reasonable Excuse for Delay
The court found numerous valid and understandable reasons for the mother’s delay in applying for support, including:
- The father deliberately misrepresented his income and assets for over 25 years.
- The mother only became aware of the extent of the misrepresentation in 2016.
- She was assaulted in 2010, which she believes was connected to her child support requests, leading to PTSD and other mental health issues.
- The father dissuaded her from pursuing legal remedies, sometimes by withholding support.
- She feared litigation costs, which became feasible only after inheriting her mother’s home.
Conduct of the Payor Parent
The court found that the father engaged in egregious blameworthy conduct, including:
- Persistent dishonesty about his assets and income to the mother and the court.
- Failure to provide meaningful or honest financial disclosure
- Failure to disclose income increases.
- Significantly underpaying child support.
- Intimidating and pressuring the mother to prevent her from seeking increased support.
The Circumstances of the Child
The court found that the son’s financial circumstances were seriously disadvantaged by the father’s failure to pay proper support. The mother and son often lived in poverty, relying on food banks and shopping at discount stores.
Hardship
The father, with a net worth exceeding $7 million and $1.3 million in liquid assets, failed to show any real hardship. In contrast, not ordering retroactive support would cause hardship to the mother.
Retroactive Start Date
Although the mother’s request to adjust support retroactively to 2003 is unusual (being the longest retroactive support claim this court has encountered), the court found it justified, particularly given the more severe blameworthy conduct involved compared to similar cases. The court noted at paragraph 98:
Every aspect of this case dictates that it is fair to adjust support back to August 1, 2003, as requested by the mother. This case is a classic example of the feminization of poverty set out by the Supreme Court of Canada in Michel. The mother has provided understandable reasons for her delay in coming to court. She has demonstrated considerable courage in her dogged pursuit of this claim and achieving some measure of justice. The father has engaged in severe blameworthy conduct. He has weaponized his superior resources to impoverish the mother and the son. The circumstances of the son were disadvantaged. The father has lived a luxurious lifestyle. He owns three properties. The mother and the son often lived in poverty. A retroactive order will not cause the father hardship. He built up considerable net worth at the expense of the mother and the son. The mother will suffer hardship if a retroactive order is not made.
What amounts should the father pay for support starting on August 1, 2003?
The father’s income was imputed based on increases in his net worth, hidden assets, and unreported income. His average annual income was calculated at $321,669 for 2003-2005 and $701,411 for 2006-2021 (child support terminated in 2021).
The Mother’s Claim for Additional Section 7 Expenses
The court declined to order additional section 7 expenses, finding the father’s existing contributions sufficient and the mother’s evidence incomplete.
Conclusion
The father’s arrears were calculated at $899,811, reflecting the difference between the imputed and paid amounts. The arrears were ordered payable immediately.