What is the test on a motion brought by a payor parent under s. 17(1) of the Divorce Act to vary and retroactively reduce a child support order?

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

(a) a support order or any provision of one, on application by either or both former spouses;

1 The objectives of these Guidelines are

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

[28] While children should be shielded from the economic consequences of divorce to the fullest extent possible, the federal child support regime contemplates that the family as a whole — including the child — will share the rising and falling fortunes of the payor parent, just as they would have before the separation. Because child support under the Divorce Act is tied to payor income and income tends to fluctuate, a child support order or agreement reflects a snapshot in time and is never final (D.B.S., at para. 64; D.B.S. v. S.R.G., 2005 ABCA 2, 361 A.R. 60 (“D.B.S. (C.A.)”), at para. 100; Brear v. Brear, 2019 ABCA 419, 97 Alta. L.R. (6th) 1, at para. 20, per Pentelechuk J.A.). Various legal, administrative and consent-based mechanisms exist to periodically change child support orders to bring them in line with financial realities.

[29] Section 17 of the Divorce Act is one such mechanism. It provides that, on application, a court “may make an order varying, rescinding or suspending, retroactively or prospectively, a support order or any provision of one” (s. 17(1)(a)). As the wording indicates, s. 17 confers wide discretion on the judge, who “may” — but is not required to — vary, rescind, or suspend an order into the future, the past, or both. The Divorce Act expressly confers such broad powers because wide judicial discretion is necessary to respond to the multiplicity of factual situations produced by human behaviour.

[38] The majority in D.B.S. found that a retroactive increase in support will not always be appropriate (para. 95). The court must exercise its discretion to determine whether a retroactive award should be given at all, and how far back it should extend. Justice Bastarache set out four factors to guide the courts’ discretion: (a) the recipient’s delay in seeking retroactive support; (b) the payor’s conduct; (c) the child’s circumstances; and (d) hardship entailed by a retroactive award. These factors were recently considered by this Court in Michel v. Graydon, 2020 SCC 24 (para. 29, per Brown J.; paras. 111-26, per Martin J.).

[39] Where a retroactive increase in child support is appropriate, the majority in D.B.S. suggested that the date of retroactivity should generally be the date of “effective notice” (para. 118). “Effective notice” in this context was said to simply require the recipient to “broac[h]” the subject of an increase in child support (para. 121). The majority of the Court noted, however, that recipients should be encouraged to move discussions forward after giving effective notice. To that end, the majority concluded that retroactive awards should generally extend no further than three years before the date of formal notice. This is known as the “three-year rule”, although it is a presumption only.

[40] In a significant caveat to these general rules, Justice Bastarache added that the date of the payor’s increase in income may sometimes be a more appropriate date of retroactivity, particularly where the payor engages in “blameworthy conduct” (para. 124). Such conduct includes the payor’s failure to disclose material increases in income. At para. 124, Bastarache J. said:

Not disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of child support payable — is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments.

[41] Since D.B.S., various courts have accepted and acted upon the principle that failing to disclose an increase in income is blameworthy conduct justifying variation to the date of the change (C. (M.) v. O. (J.), 2017 NBCA 15, 93 R.F.L. (7th) 59, at para. 37; Goulding v. Keck, 2014 ABCA 138, 42 R.F.L. (7th) 259, at para. 44; Brear, at para. 74, per Pentelechuk J.A.; Burchill v. Roberts, 2013 BCCA 39, 41 B.C.L.R. (5th) 217, at paras. 29-30; Greene v. Greene, 2010 BCCA 595, 12 B.C.L.R. (5th) 330, at para. 73; Carlaw v. Carlaw, 2009 NSSC 428, 299 N.S.R. (2d) 1, at paras. 23-25; Damphouse v. Damphouse, 2020 ABQB 101, at para. 72 (CanLII)). “Blameworthy conduct”, as that concept has developed in the cases, does not simply extend to the most egregious cases of deception or intentional evasion, like this case. It may also extend to cases of mere passivity and “taking the path of least resistance” (Burchill, at para. 30).

[42] Most recently, in Michel, my colleague Brown J. (speaking for the Court on this point) confirmed that “the date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness)”, including failure to disclose material information (para. 36; see also para. 33). Payor parents are “subject to a duty of full and honest disclosure” (para. 33). Where the payor fails to comply with this duty and leaves the recipient unaware of increases in income, a retroactive award “will commonly be appropriate” because non-disclosure “eliminates any need to protect [the payor’s] interest in the certainty of his [or her] child support obligations” (paras. 32 and 34).

[43] In practice, then, the date of retroactivity is frequently adjusted to align with the date of the material increase in income, despite the “general rule” of varying to the date of effective notice in D.B.S. (para. 118). It would be “untenable to suggest that a parent who fails to provide financial disclosure can assume that the amount being provided is adequate because the recipient parent has not brought a court application” (Brear, at para. 74, per Pentelechuk J.A.). Further, even where the payor has disclosed increases in income, the D.B.S. factors may support extending a retroactive increase of support back to the time of the change in income.

[44] In settling on the date of effective notice as the “general rule”, D.B.S. represented a kind of compromise between the pre-Guidelines world — with its payor-focused concepts of laches and hoarding — and the child-centered era of the Guidelines. In the pre-Guidelines era, notice was considered important because it was viewed as unfair to surprise payors with a retroactive award when they could not know the extent of their child support obligation until it was determined by the court (D.B.S. (C.A.), at para. 79). After the Guidelines became law, parents knew about the existence and extent of their obligations, but courts continued to show reluctance to grant retroactive awards and pre-Guidelines concepts like notice and laches retained some influence. This background helps explain the majority’s wariness in D.B.S. about changing the rules for payors mid-stream. Since D.B.S., however, expectations of and for payors have evolved. The Guidelines and s. 17 of the Divorce Act are clear and D.B.S. itself gave notice to payor parents that they must pay more support as income rises and that this obligation may be enforced after the fact.

[45] In light of the existing approach to blameworthy conduct and the pervasiveness of non-disclosure, it may be necessary in a future case to revisit the presumptive date of retroactivity in cases where the recipient seeks a retroactive variation to reflect increases in the payor’s income. A presumption in favour of varying support to the date of the increase would better reflect the recipient’s informational disadvantage and remove any incentive for payors to withhold disclosure or underpay support in the hopes that the status quo will be maintained. Such a presumption would accord with other core principles of child support and reinforce that payors share the burden of ensuring the child receives the appropriate amount of support.

[48] After applying the Guidelines and D.B.S. for many years, it has become clear just how much the child support system, including s. 17 variations, depends upon adequate, accurate and timely financial disclosure. The centrality of disclosure in child support matters has been recognized in a rich body of jurisprudence both before and after D.B.S. (see, e.g., Shamli v. Shamli, 2004 CanLII 45956 (Ont. S.C.J.), at para. 8; Hietanen v. Hietanen, 2004 BCSC 306, 7 R.F.L. (6th) 67, at para. 11; Gray, at para. 63; M.K.R. v. J.A.R., 2015 NBCA 73, 443 N.B.R. (2d) 313, at paras. 14 and 20; Francis v. Terry, 2004 NSCA 118, 227 N.S.R. (2d) 99, at para. 9; Goulding, at para. 44). Simply stated, disclosure is the linchpin on which fair child support depends and the relevant legal tests must encourage the timely provision of necessary information.

[49] The pivotal role of disclosure comes as no surprise since the premise underlying the Guidelines “is that the support obligation itself should fluctuate with the payor parent’s income” (D.B.S., at para. 45). The structure of the Guidelines thus creates an informational asymmetry between the parties. In a system that ties support to payor income, it is the payor who knows and controls the information needed to calculate the appropriate amount of support. The recipient does not have access to this information, except to the extent that the payor chooses or is made to share it. It would thus be illogical, unfair and contrary to the child’s best interests to make the recipient solely responsible for policing the payor’s ongoing compliance with their support obligation.

[50] This is why frank disclosure of income information by the payor lies at the foundation of the child support regime. In Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, the Court of Appeal described the duty to disclose financial information as “[t]he most basic obligation in family law” (para. 11). A payor’s failure to make timely, proactive and full disclosure undermines the policies underlying the family law regime and “the processes that have been carefully designed to achieve those policy goals” (Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587, at para. 44). Without proper disclosure, the system simply cannot function and the objective of establishing a fair standard of support for children that ensures they benefit from the means of both parents will be out of reach (Michel, at para. 32, per Brown J.; Brear, at para. 19, per Pentelechuk J.A.).

[51] Full and frank disclosure is also a precondition to good faith negotiation. Without it, the parties cannot stand on the equal footing required to make informed decisions and resolve child support disputes outside of court. Promoting proactive payor disclosure thus advances the objectives — found in s. 1 of the Guidelines — of reducing conflict between the parties and encouraging settlement.

[52] In line with these realities, courts have increasingly recognized that the payor’s duty to disclose income information is a corollary of the legal obligation to pay support commensurate with income (Brear, at paras. 19 and 69, per Pentelechuk J.A.; Roseberry v. Roseberry, 2015 ABQB 75, 13 Alta. L.R. (6th) 215, at para. 63; Cunningham v. Seveny, 2017 ABCA 4, 88 R.F.L. (7th) 1, at paras. 21 and 26). As explained by Brown J., speaking for the full Court in Michel, payor parents “are subject to a duty of full and honest disclosure — a duty comparable to that arising in matrimonial negotiations” (para. 33, referencing Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295, at paras. 47-49). Courts and legislatures have also implemented various mechanisms to incentivize and even require regular ongoing disclosure of updated income information by the payor, along with tools to move proceedings forward in the face of non-disclosure. Those mechanisms include imputing income to payors who have failed to make adequate disclosure, striking pleadings, drawing adverse inferences, and awarding costs. By encouraging timely disclosure, these tools reduce the likelihood that the recipient will be forced to apply to court multiple times to secure disclosure.

[53] Following D.B.S., lawyers and courts also began implementing “proactive strategies to avoid tedious and conflicting arguments related to ‘asking versus telling’ about income increases”, such as the use of mandatory annual disclosure obligations in child support orders in Alberta and Ontario (M. L. Gordon, “An Update on Retroactive Child and Spousal Support: Five Years after S. (D.B.) v. G. (S.R.)” (2012), 31 C.F.L.Q. 71, at p. 72; see also Sawatzky v. Sawatzky, 2018 MBCA 102, 428 D.L.R. (4th) 247, at para. 58; Roseberry, at para. 64). In Ontario, the legislature has echoed this trend by amending the guidelines to include a requirement that payors disclose income information annually without the requirement of a request from the recipient (Child Support Guidelines, O. Reg. 391/97, s. 24.1(1)). Similarly, in British Columbia, s. 5(1) of the Family Law Act, S.B.C. 2011, c. 25, imposes a general duty to disclose “full and true information” for the purpose of resolving family law disputes.

[54] In keeping with these developments, the exercise of judicial discretion and the setting of legal standards under s. 17 of the Divorce Act must encourage financial disclosure and in no way reward those who improperly withhold, hide or misrepresent information they ought to have shared. Proactive disclosure of changes in income is the first step to ensuring that child support obligations are tied to payor income as it fluctuates. Inadequate disclosure breeds “a backlog of [retroactive] support applications” (Roseberry, at para. 61). Indeed, with full, frank and regular disclosure, long-term arrears — such as Mr. Colucci’s — should be rare.

[59] Like any applicant seeking a retroactive variation under s. 17 of the Divorce Act, a payor seeking a downward retroactive change must first show a past change in circumstances, as required under s. 17(4). Section 14 of the Guidelines lists situations constituting a change in circumstances for the purpose of s. 17(4) of the Divorce Act, including the coming into force of the Guidelines (s. 14(c)). A change in circumstances could also include a change that, if known at the time, would probably have resulted in different terms, such as a drop in income (Guidelines, s. 14(a); Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at p. 688; Gray, at para. 39).

[60] The onus is on the party seeking a retroactive decrease to show a change in circumstances (Punzo v. Punzo, 2016 ONCA 957, 90 R.F.L. (7th) 304, at para. 26; Templeton, at para. 33). In some cases that may be relatively straightforward: for example, establishing that the children are no longer legally entitled to support because they are no longer children of the marriage.

[61] Most commonly, the retroactive variation claim will be based on a material change in income. To meet the threshold, a decrease in income must be significant and have some degree of continuity, and it must be real and not one of choice (Willick, at pp. 687-88; Earle v. Earle, 1999 CanLII 6914 (B.C.S.C.), at para. 27; MacCarthy v. MacCarthy, 2015 BCCA 496, 380 B.C.A.C. 102, at para. 58, citing Earle; L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 33; Gray, at para. 39; Brown v. Brown, 2010 NBCA 5, 353 N.B.R. (2d) 323 (“Brown”), at para. 2; Templeton, at para. 35). Trivial or short-lived changes are insufficient to justify a variation (Templeton, at para. 35). In this way, the threshold inquiry preserves some sense of certainty and predictability for the parties and the child, while allowing some flexibility in response to changes in the payor’s income.

[62] The payor must have disclosed sufficient reliable evidence for the court to determine when and how far their income fell, and to ascertain whether the change was significant, long lasting, and not one of choice. A decision to retroactively decrease support can only be made based on “reliable, accurate and complete information” (Earle, at para. 28). The payor cannot ask the court to make findings on income that are contrary to the recipient’s interests “while at the same time shielding information that is relevant to the determination of their income behind a protective wall” (Templeton, at para. 67; see also Tougher v. Tougher, 1999 ABQB 552, at paras. 14‑15 (CanLII); Terry, at para. 9).

[63] Of course, a payor whose income was originally imputed because of an initial lack of disclosure cannot later claim that a change in circumstances occurs when he or she subsequently produces proper documentation showing the imputation was higher than the table amount for their actual income. The payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order (Gray, at paras. 33-34). This would “defeat the purpose of imputing income in the first place” and act as “a disincentive for payors to participate in the initial court process” (Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364, at para. 53).

[70] To support a culture of negotiation, the framework under s. 17 of the Divorce Act must provide parties with a foundation for their efforts to resolve the matter themselves. A framework that promotes timely disclosure and structures judicial discretion through clear and simple presumptions will provide a solid starting point for negotiation between the parties.

[71] There is thus merit in a simplified framework which takes the benefits of Brown and Corcios/Gray but removes their drawbacks. To advance clarity, simplicity and predictability, the analysis should be focused on a single presumption regarding the date of retroactivity. Once the applicant establishes a change in circumstances, a presumption is triggered that support will be varied back to a certain date (i.e., effective notice, up to three years before formal notice). The D.B.S. factors are then concentrated on one question: should the court depart from the presumptive date of retroactivity to achieve a fair result? It is on this question only that the factors of delay, payor conduct, the child’s circumstances and potential hardship are brought to bear.

[72] It is therefore no longer necessary to first ask whether retroactive relief is warranted as a general proposition, with contextual factors guiding both this preliminary inquiry and the question of how far back retroactive relief should go. Already in the jurisprudence, this preliminary question has often been blurred with the question of the timing of any retroactive order, casting doubt on the utility of inquiring first into the general appropriateness of retroactive relief. For example, even though the analytical framework in Corcios called for a separate step of asking whether retroactive relief is appropriate in the first place, the court did not separate out this preliminary question from the inquiry into how far back retroactive relief should extend. Moving directly to a presumptive date simplifies the analysis and enhances fairness and predictability for the parties.

[73] To ensure consistency and even-handedness, this same presumption-based approach should be applied in all retroactive variation contexts, including where the recipient applies under s. 17 for a retroactive increase. It would not be fair if payors claiming a decrease benefit from a presumption that is unavailable to recipients claiming an increase, especially when applications to retroactively reduce support will often be countered by an application for a retroactive increase in the same proceeding, or vice versa. A recipient is thus no longer required to demonstrate as a preliminary matter that a retroactive award is appropriate based on the D.B.S. factors. Once an increase in the payor’s income has been shown, the only question is how far back retroactive support should extend. No injustice arises if the inquiry into the general appropriateness of retroactive child support is omitted, as any fears that payors will be taken by surprise by ex post changes are fully answered by the express reference to retroactive variations in the wording of s. 17, the way the Guidelines work, and the fact that the Court’s reasons in D.B.S. were given over fifteen years ago.

[74] Thus, where a past material change in the payor’s income is established, the amount set out in the child support order no longer reflects the content of the payor’s legal obligation to pay support in line with the table amounts. The only question is what remedy flows from this legal fact. In the decrease context, the presumption of varying back to the date of effective notice, up to three years before formal notice, assists the court in answering this question. It will still be true under this approach that not all applications will lead to retroactive variations, but the focus will be on whether a material change in circumstances has been proven and the date to which a retroactive variation should extend.

[113] To summarize, where the payor applies under s. 17 of the Divorce Act to retroactively decrease child support, the following analysis applies:

(1) The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice.

(2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, 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 situation.

(3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.

(4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct.

(5) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[2] In the present case, Mr. Colucci did not make any voluntary payments toward his child support obligations for over 16 years and now owes approximately $170,000 in arrears. On application by Mr. Colucci, the motion judge retroactively decreased support, effectively reducing the arrears owing to $41,642. The Court of Appeal for Ontario overturned that decision and ordered him to pay the full amount of the arrears.

[...]

[11] The parties were married in 1983 and divorced in 1996. The order of McMahon J., dated May 13, 1996 (“Divorce Order”), made on consent, provided that Ms. Colucci would have sole custody of the parties’ two daughters, aged 8 and 6 at the time, and required Mr. Colucci to pay child support of $115 per week per child (indexed) until they were no longer “child[ren] of the marriage”. The record does not show what Mr. Colucci’s income was at the time of the order, but the amount of child support was negotiated taking into account that Ms. Colucci forewent any claim to spousal support. One year after the order was made, the Guidelines came into force.

[12] In April 1998, Mr. Colucci contacted Ms. Colucci through counsel to request a reduction in his child support obligations on the basis of a decrease in his income. He provided no financial disclosure to support his request and the parties reached no agreement at that time. Mr. Colucci’s child support obligations ended in 2012, when the daughters were no longer children of the marriage. After that time, no further support payments accrued. Until he brought this application in 2016, Mr. Colucci took no further steps to vary the Divorce Order.

[13] From 1998 to 2012, the period during which arrears accrued, Mr. Colucci was absent from the children’s lives and his whereabouts were unknown to Ms. Colucci and the children. He made no voluntary child support payments and the Family Responsibility Office (“FRO”) was only able to collect limited sums through enforcement mechanisms from 1998 to 2016. Enforcement action taken by the FRO includes garnishment of Mr. Colucci’s Workplace Safety and Insurance Board payments and federal income tax refunds, the suspension of his driver’s license and Canadian passport, the issuance of a writ of seizure and sale, and reporting to the credit bureau.

[14] Mr. Colucci commenced a motion to change in November 2016. He sought orders retroactively varying child support to the date the Guidelines came into force (May 1, 1997) and “[f]ixing the arrears of child support if any and determining the payments on those arrears in accordance with [his] income” (A.R., vol. II, at p. 4). He also asked that “any arrears of support . . . not only be fixed but that the payments on those arrears be fixed in accordance with [his] ability to pay” (p. 10).

[15] In the course of these proceedings, Mr. Colucci eventually disclosed where he had been all these years. He said he moved to the United States in 2000 and worked there until 2005. He claims he earned approximately USD 25,000 annually during those years. In 2005, he returned to Italy to care for his mother until her death in 2008. From 2005 to 2008, he states that he made between €3,000 and €4,000 per year, with the exception of 2007, when he made €19,000. Soon after his mother’s death, he received an inheritance of €15,000. He said he lived on these funds until 2016, when he returned to Canada. In 2016, Mr. Colucci received an additional €15,000 from the sale of his mother’s property. He is entitled to a further €15,000 from the sale, which he was scheduled to receive on August 31, 2019.

[16] Mr. Colucci provided little documentation or financial disclosure to support these claims. He relied largely on unsubstantiated assertions in his affidavit about where he worked and how much he was paid, making it extremely difficult to accurately determine his income for the relevant years. Mr. Colucci claims he is unable to provide tax returns for the years 2000 to 2015. He says he cannot obtain tax returns from the Internal Revenue Service for the years he worked in the United States, in part because “[h]e does not have a Canadian passport . . . and may be denied re-entry” if he attends in person to obtain the returns (A.R., vol. II, at p. 59). He claims he worked for cash only between 2007 and 2015 and “did not file any income tax returns” (ibid.). Mr. Colucci offers no other explanation for the absence of tax returns for these years. He explained that he did not file a tax return in 2017 because he did not want the authorities to garnish his tax refund.

[...]

[115] Support orders attract deference on appeal. Absent an error or an extricable question of law, a palpable and overriding error, or a fundamental mischaracterization or misapprehension of the evidence, an appellate court should not interfere with the trial judge’s exercise of discretion (Brandsema, at para. 30).

[116] In this case, I agree with the Court of Appeal that the motion judge erred in principle. Instead of balancing the payor’s interest in flexibility against the interests of the child and recipient, the motion judge concluded that the coming into force of the Guidelines was a change in circumstances that “entitled [Mr. Colucci] as of right to a variation and a calculation based on table amounts and his drop in income” (reasons of motion judge, at para. 15 (emphasis added)). While the motion judge did not have the benefit of these reasons, that conclusion was inconsistent with the principles underlying the Guidelines and the framework set out above.

[117] The motion judge was correct in concluding that the coming into force of the Guidelines constituted a change in circumstances under s. 14(c). While this legal change opens the door at the threshold step, it does not obviate the need for evidence of Mr. Colucci’s earnings in the years since the Guidelines came into force. Without reliable and complete income information, the court cannot recalculate support for the intervening years in accordance with the Guidelines. Thus, Mr. Colucci’s failure to adduce adequate evidence of his income since 2000 is fatal to his application. Even if he adduced sufficient evidence of his income from 1997 to 2000, the three-year rule applies, as discussed below.

[118] Aside from the coming into force of the Guidelines, Mr. Colucci also relied on material decreases in his income after the Guidelines came into force as a justification for retroactively decreasing the amount of support. To the extent he relies on drops in income, however, his deficient communication, inadequate evidence and insufficient disclosure are fatal to his application: not only has he not proven a decrease in income, he can point to no actions which qualify as effective notice. The Court of Appeal properly rejected the submission that his child support obligations should be retroactively varied to April 1998, when he asked Ms. Colucci through counsel for a reduction in the amount of child support payable because of an alleged decrease in his income.

[119] It is not enough for a payor in Mr. Colucci’s shoes to advise the recipient that their income has fallen without taking any further steps. Following Ms. Colucci’s refusal to vary support in 1998, Mr. Colucci “produced no proof of his changed financial circumstances, nor, after his initial request for a reduction in 1998, did he instigate any further negotiations, mediation or court proceedings” (C.A. reasons, at para. 34). Rather, he cut off communication and did nothing until commencing this proceeding in 2016. Since Mr. Colucci did not provide reasonable proof to allow the recipient to meaningfully assess the situation, his request fell short of effective notice. Further, the request in 1998 could not constitute notice of the more dramatic drops in his income after the initial request was made. A payor who experiences this kind of fluctuation in income must continue to communicate subsequent changes with proper disclosure to allow the recipient to plan accordingly.

[120] As Mr. Colucci gave no effective notice before arrears stopped accumulating in 2012, the presumption set out above leads to the conclusion that he is not entitled to any retroactive decrease in his child support obligations. Even if Mr. Colucci had given effective notice in 1998, the presumptive three-year limit would apply. The application of the three-year rule would preclude any retroactive decrease, given that his children were no longer eligible for child support beginning in 2012 and he gave formal notice in 2016. Nor would the application of the D.B.S. factors support a longer period of retroactivity. Indeed, had it been necessary to decide this point, all factors, particularly that of payor conduct, would support a shorter period of retroactivity. It is not enough for the payor to give notice and then disappear. The Court of Appeal correctly noted that, when the parties were unable to reach an agreement on a reduced amount of support, “it was incumbent on [Mr. Colucci] to initiate proceedings in a timely manner” (para. 34). Instead, he “unreasonably failed to do anything for 18 years” (ibid.).

[121] Mr. Colucci claimed that he did not commence a motion in 1998 because he lacked the financial resources to do so. However, lack of funds cannot justify his failure to produce reasonable proof of the change in income he claimed at the time of his request, or his subsequent failure to communicate, negotiate or seek a change for 18 years.

[122] Mr. Colucci also made few, if any, voluntary payments during that time and showed no willingness to support the children, who suffered hardship as a result of his failure to fulfill his obligations. His conduct shows bad faith efforts to evade the enforcement of a court order. He did not notify the recipient or the FRO when he left Canada or advise them of his whereabouts or income for the duration of his absence (C.A. reasons, at para. 8). The FRO took a number of steps that failed to spur Mr. Colucci to comply with his obligations voluntarily, including garnishing benefits and suspending his passport and driver’s license. The FRO was only able to collect limited sums through these enforcement mechanisms. Ms. Colucci was thus left to shoulder the financial burden of raising and supporting the children on her own (para. 30). The daughters also incurred considerable debt in pursuing post-secondary education (ibid.).

[123] Mr. Colucci turned his back on his support obligations and a court order when he cut off communication and “absconded without a trace to the United States and Italy” (C.A. reasons, at para. 31). He only came out of hiding when he had returned to Canada and was facing enforcement action by the FRO, including potential garnishment of his wages. Mr. Colucci cannot now seek to avoid the consequences of his actions. To depart from the presumptive date of retroactivity and grant a retroactive decrease in these circumstances would give tacit approval to this kind of conduct, contrary to the best interests of children. As Carey J. stated, Mr. Colucci’s “success at getting to the age of 62 without paying a dollar voluntarily . . . should not be rewarded” (Colucci v. Colucci, 2018 ONSC 4868, at para. 4; see also paras. 2‑3).

[124] Moreover, Mr. Colucci has continued to evade his child support obligations by misrepresenting his financial circumstances and breaching his ongoing obligation to make full documentary and financial disclosure, even in the course of these proceedings (C.A. reasons, at para. 32). As such, this case provides an example of the kind of inadequate disclosure that would justify a refusal to vary back to the date of formal notice. Mr. Colucci did not provide his tax returns or any other documentary evidence of income for the years 2000 to 2015, and most of the little disclosure he made was provided well after he commenced the motion to change. Documentation regarding his mother’s estate was not produced until over a year later, and even then, the document was in Italian only. His income information for 2016 and 2017 was not provided until July 2018. In addition, Mr. Colucci redacted his employer’s name from his T4 and filed no tax return in 2017 to avoid garnishment of his wages and tax refund, preferring to forfeit the refund altogether than have it go toward his child support obligations. He also failed to pay Ms. Colucci the €15,000 that he was ordered to pay by the motion judge despite being in receipt of the earmarked funds from his mother’s estate.

[125] A few words on the recalculation of support and imputation of income. Mr. Colucci argued that the motion judge must have been satisfied with the financial information before him, as he relied on this information in recalculating Mr. Colucci’s support obligation and in concluding that minimum wage should be imputed to Mr. Colucci in certain years due to under-employment.

[126] I agree with Ms. Colucci that it was problematic for the motion judge to rely on Mr. Colucci’s limited financial disclosure to recalculate support and exercise his discretion to impute income. Apart from Mr. Colucci’s own assertions about when he worked and how much he was paid, there was no objective or cogent evidence supporting his alleged income from 2000 to 2015. The motion judge essentially took Mr. Colucci’s word for it, imputing income based on Mr. Colucci’s assertion that he made substantially less than minimum wage in certain years and recalculating support based on the income he claimed to have made in other years.

[127] This case highlights one of the mischiefs of delayed applications to retroactively decrease support: as the years go by, it becomes more difficult to produce reliable income information, such as tax returns. For example, Mr. Colucci claims he was unable to obtain tax returns from the Internal Revenue Service for the years he worked in the United States. The payor cannot rely on the passage of time as an excuse for incomplete disclosure upon finally seeking retroactive variation. It would be unfair to the recipient and children to bridge gaps in the payor’s disclosure with guesswork that works to their disadvantage. Such an approach would also incentivize payors to provide inadequate disclosure in the hopes that the court will either accept their assertions or impute income that is lower than the income actually earned.

[128] Vague or incomplete information is also difficult to challenge on cross-examination. As Mr. Colucci had not produced documentation supporting his asserted income from 2000 to 2015, there would have been no documents to cross-examine him on with respect to those years, rendering the exercise futile. Recipients should not be expected to hire forensic accountants or investigators to uncover the financial information needed to effectively cross-examine the payor or challenge the payor’s submission that only minimum wage should be imputed where a finding of under-employment is made. Such an expectation is particularly unrealistic where, as here, the payor has left the country and stopped making payments, leaving the recipient to struggle to care and provide for the children on her own.

[129] Payors are reminded that the onus is on them to establish that a retroactive decrease is warranted based on reliable evidence, and that parties to litigation are subject to a general obligation to disclose all information that is relevant and material to the case (Kinsella v. Mills, 2020 ONSC 4785, 44 R.F.L. (8th) 1, at para. 166). In this case, the obligation to disclose material information was breached and the payor fell short of his burden of proof. Mr. Colucci cannot expect a court to award relief that prejudices the recipient and his children while shielding material information and documentation from the view of the court and recipient.

[130] Finally, although he did not pursue a claim for reimbursement before the motion judge, Mr. Colucci claimed he overpaid $2,310.90 in child support based on his asserted income and the table amounts. Even if he had supported this calculation with proper disclosure of financial information, the absence of any communication of his alleged changes in circumstances would be a strong factor militating against any claim for reimbursement from Ms. Colucci.

[131] In conclusion, Mr. Colucci is not entitled to relief on the basis of a decrease in income. He gave no effective notice of his intention to seek a reduction in support, either in 1998 or at any point before his daughters had ceased to be children of the marriage in 2012. Even if he had given effective notice in 1998, the presumptive three-year limit applies. The D.B.S. factors do not support a longer period of retroactivity. Since Mr. Colucci commenced his motion to change in 2016, four years after his support obligation had terminated and arrears stopped accumulating, the application of the three-year limit precludes retroactive variation of the amount of support owing under the prior order.

[54] In summary, then, parents have an obligation to support their children in a way that is commensurate with their income. This parental obligation, like the children’s concomitant right to support, exists independently of any statute or court order. To the extent the federal regime has eschewed a purely need-based analysis, this free-standing obligation has come to imply that the total amount of child support owed will generally fluctuate based on the payor parent’s income. Thus, under the federal scheme, a payor parent who does not increase his/her child support payments to correspond with his/her income will not have fulfilled his/her obligation to his/her children. However, provinces remain free to espouse a different paradigm. When an application for retroactive support is made, therefore, it will be incumbent upon the court to analyze the statutory scheme in which the application was brought.

[99] I will now proceed to discuss the factors that a court should consider before awarding retroactive child support. None of these factors is decisive. For instance, it is entirely conceivable that retroactive support could be ordered where a payor parent engages in no blameworthy conduct. Thus, the British Columbia Court of Appeal has ordered retroactive support where an interim support award was based on incorrect financial information, even though the initial underestimate was honestly made: see Tedham v. Tedham (2003), 20 B.C.L.R. (4th) 56, 2003 BCCA 600. At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix.

5.3.1 Reasonable Excuse for Why Support Was Not Sought Earlier

[100] The defining feature linking the present appeals is that an application for child support — either as an original order or a variation — could have been made earlier, but was not. The circumstances that surround the recipient’s choice (if it was indeed a voluntary and informed one) not to apply for support earlier will be crucial in determining whether a retroactive award is justified.

[101] Delay in seeking child support is not presumptively justifiable. At the same time, courts must be sensitive to the practical concerns associated with a child support application. They should not hesitate to find a reasonable excuse where the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family. Equally, absent any such an anticipated reaction on the part of the payor parent, a reasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice: see Chrintz v. Chrintz (1998), 1998 CanLII 14891 (ON SC), 41 R.F.L. (4th) 219 (Ont. Ct. (Gen. Div.)), at p. 245. On the other hand, a recipient parent will generally lack a reasonable excuse where (s)he knew higher child support payments were warranted, but decided arbitrarily not to apply.

[102] Not awarding retroactive child support where there has been unreasonable delay by the recipient parent responds to two important concerns. The first is the payor parent’s interest in certainty. Generally, where the delay is attributable to unreasonableness on the part of the recipient parent, and not blameworthy conduct on the part of the payor parent, this interest in certainty will be compelling. Notably, the difference between a reasonable and unreasonable delay often is determined by the conduct of the payor parent. A payor parent who informs the recipient parent of income increases in a timely manner, and who does not pressure or intimidate him/her, will have gone a long way towards ensuring that any subsequent delay is characterized as unreasonable: compare C. (S.E.) v. G. (D.C.). In this context, a recipient parent who accepts child support payments without raising any problem invites the payor parent to feel that his/her obligations have been met.

[103] The second important concern is that recipient parents not be encouraged to delay in seeking the appropriate amount of support for their children. From a child’s perspective, a retroactive award is a poor substitute for past obligations not met. Recipient parents must act promptly and responsibly in monitoring the amount of child support paid: see Passero v. Passero, 1991 CanLII 8165 (ON SC), [1991] O.J. No. 406 (QL) (Gen. Div.). Absent a reasonable excuse, uncorrected deficiencies on the part of the payor parent that are known to the recipient parent represent the failure of both parents to fulfill their obligations to their children.

[104] In deciding that unreasonable delay militates against a retroactive child support award, I am keeping in mind this Court’s jurisprudence that child support is the right of the child and cannot be waived by the recipient parent: Richardson, at p. 869. In fact, I am not suggesting that unreasonable delay by the recipient parent has the effect of eliminating the payor parent’s obligation. Rather, unreasonable delay by the recipient parent is merely a factor to consider in deciding whether a court should exercise its discretion in ordering a retroactive award. This factor gives judges the opportunity to examine the balance between the payor parent’s interest in certainty and fairness to his/her children, and to determine the most appropriate course of action on the facts.

5.3.2 Conduct of the Payor Parent

[105] This factor approaches the same concerns as the last one from the opposite perspective. Just as the payor parent’s interest in certainty is most compelling where the recipient parent delayed unreasonably in seeking an award, the payor parent’s interest in certainty is least compelling where (s)he engaged in blameworthy conduct. Put differently, this factor combined with the last establish that each parent’s behaviour should be considered in determining the appropriate balance between certainty and flexibility in a given case.

[106] Courts should not hesitate to take into account a payor parent’s blameworthy conduct in considering the propriety of a retroactive award. Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context. I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support. A similar approach was taken by the Ontario Court of Appeal in Horner v. Horner (2004), 2004 CanLII 34381 (ON CA), 72 O.R. (3d) 561, at para. 85, where children’s broad “interests” — rather than their “right to an appropriate amount of support” — were said to require precedence; however, I have used the latter wording to keep the focus specifically on parents’ support obligations. Thus, a payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments: see Hess v. Hess (1994), 1994 CanLII 7378 (ON SC), 2 R.F.L. (4th) 22 (Ont. Ct. (Gen. Div.)); Whitton v. Shippelt (2001), 293 A.R. 317, 2001 ABCA 307; S. (L.). A payor parent cannot intimidate a recipient parent in order to dissuade him/her from bringing an application for child support: see Dahl v. Dahl (1995), 1995 ABCA 425 (CanLII), 178 A.R. 119 (C.A.). And a payor parent cannot mislead a recipient parent into believing that his/her child support obligations are being met when (s)he knows that they are not.

[107] No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct: see A. (J.) v. A. (P.) (1997), 1997 CanLII 12394 (ON SC), 37 R.F.L. (4th) 197 (Ont. Ct. (Gen. Div.)), at pp. 208-9; Chrintz.

[108] On the other hand, a payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy behaviour. Whether a payor parent is engaging in blameworthy conduct is a subjective question. But I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy. For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct. In this context, a court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent’s belief that his/her obligations were being met. Equally, where applicable, a court should consider the previous court order or agreement that the payor parent was following. Because the order (and, usually, the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order. However, this presumption may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay.

[109] Finally, I should also mention that the conduct of the payor parent could militate against a retroactive award. A court should thus consider whether conduct by the payor parent has had the effect of fulfilling his/her support obligation. For instance, a payor parent who contributes for expenses beyond his/her statutory obligations may have met his/her increased support obligation indirectly. I am not suggesting that the payor parent has the right to choose how the money that should be going to child support is to be spent; it is not for the payor parent to decide that his/her support obligation can be acquitted by buying his/her child a new bicycle: see Haisman v. Haisman (1994), 1994 ABCA 249 (CanLII), 22 Alta. L.R. (3d) 56 (C.A.), at paras. 79-80. But having regard to all the circumstances, where it appears to a court that the payor parent has contributed to his/her child’s support in a way that satisfied his/her obligation, no retroactive support award should be ordered.

5.3.3 Circumstances of the Child

[110] A retroactive award is a poor substitute for an obligation that was unfulfilled at an earlier time. Parents must endeavour to ensure that their children receive the support they deserve when they need it most. But because this will not always be the case with a retroactive award, courts should consider the present circumstances of the child — as well as the past circumstances of the child — in deciding whether such an award is justified.

[111] A child who is currently enjoying a relatively high standard of living may benefit less from a retroactive award than a child who is currently in need. As I mentioned earlier, it is a core principle of child support that, after separation, a child’s standard of living should approximate as much as possible the standard (s)he enjoyed while his/her parents were together. Yet, this kind of entitlement is impossible to bestow retroactively. Accordingly, it becomes necessary to consider other factors in order to assess the propriety of a retroactive award. Put differently, because the child must always be the focus of a child support analysis, I see no reason to abstract from his/her present situation in determining if a retroactive award is appropriate.

[112] Consideration of the child’s present circumstances remains consistent with the statutory scheme. While Parliament has moved away from a need-based perspective in child support, it has still generally retained need as a relevant consideration in circumstances where a court’s discretion is being exercised: see ss. 3(2)(b), 4(b)(ii) and 9(c) of the Guidelines. Some provinces, like Quebec, even provide courts with discretion to alter default child support arrangements, within defined limits, on the basis of need: see art. 587.1 of the Civil Code of Québec, S.Q. 1991, c. 64. Unless the applicable regime eliminates need as a consideration in discretionary child support awards altogether, I believe it remains useful to retain this factor when courts consider retroactive awards.

[113] Because the awards contemplated are retroactive, it is also worth considering the child’s needs at the time the support should have been paid. A child who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award. On the other hand, the argument for retroactive child support will be less convincing where the child already enjoyed all the advantages (s)he would have received had both parents been supporting him/her: see S. (L.). This is not to suggest that the payor parent’s obligation will disappear where his/her children do not “need” his/her financial support. Nor do I believe trial judges should delve into the past to remedy all old familial injustices through child support awards; for instance, hardship suffered by other family members (like recipient parents forced to make additional sacrifices) are irrelevant in determining whether retroactive support should be owed to the child. I offer these comments only to state that the hardship suffered by children can affect the determination of whether the unfulfilled obligation should be enforced for their benefit.

5.3.4 Hardship Occasioned by a Retroactive Award

[114] While the Guidelines already detail the role of undue hardship in determining the quantum of a child support award, a broad consideration of hardship is also appropriate in determining whether a retroactive award is justified.

[115] There are various reasons why retroactive awards could lead to hardship in circumstances where a prospective award would not. For instance, the quantum of retroactive awards is usually based on past income rather than present income; in other words, unlike prospective awards, the calculation of retroactive awards is not intrinsically linked to what the payor parent can currently afford. As well, payor parents may have new families, along with new family obligations to meet. On this point, courts should recognize that hardship considerations in this context are not limited to the payor parent: it is difficult to justify a retroactive award on the basis of a “children first” policy where it would cause hardship for the payor parent’s other children. In short, retroactive awards disrupt payor parents’ management of their financial affairs in ways that prospective awards do not. Courts should be attentive to this fact.

[116] I agree with Paperny J.A., who stated in D.B.S. that courts should attempt to craft the retroactive award in a way that minimizes hardship (paras. 104 and 106). Statutory regimes may provide judges with the option of ordering the retroactive award as a lump sum, a series of periodic payments, or a combination of the two: see, e.g., s. 11 of the Guidelines. But I also recognize that it will not always be possible to avoid hardship. While hardship for the payor parent is much less of a concern where it is the product of his/her own blameworthy conduct, it remains a strong one where this is not the case.

[118] Having established that a retroactive award is due, a court will have four choices for the date to which the award should be retroactive: the date when an application was made to a court; the date when formal notice was given to the payor parent; the date when effective notice was given to the payor parent; and the date when the amount of child support should have increased. For the reasons that follow, I would adopt the date of effective notice as a general rule.

[119] Separation is a difficult time for families. But especially when the interests of children are at stake, it is vital that parents resolve matters arising out of separation promptly. The Guidelines and similar provincial schemes facilitate this task by providing a measure of consistency and predictability in child support matters. Still, as I have noted above, these child support regimes do not go so far as to provide for automatically enforceable support orders. Whether dealing with an original order, or circumstances that may merit a variation, the responsibility always lies with parents to negotiate the issue honestly and openly, with the best interests of their children in mind.

[120] Disputes surrounding retroactive child support will generally arise when informal attempts at determining the proper amount of support have failed. Yet, this does not mean that formal recourse to the judicial system should have been sought earlier. To the contrary, litigation can be costly and hostile, with the ultimate result being that fewer resources — both financial and emotional — are available to help the children when they need them most. If parents are to be encouraged to resolve child support matters efficiently, courts must ensure that parents are not penalized for treating judicial recourse as a last resort. Accordingly, the first two start dates for retroactive awards — i.e., the date of application to court and the date of formal notice — ought not be used. So long as the enforcement of child support obligations is triggered by formal legal measures, a perverse incentive is created for recipient parents to avoid the informal resolution of their disputes: MacNeal v. MacNeal (1993), 1993 CanLII 9310 (ON SC), 50 R.F.L. (3d) 235 (Ont. Ct. (Gen. Div.)); Steinhuebl v. Steinhuebl, 1970 CanLII 411 (ON CA), [1970] 2 O.R. 683 (C.A.). A recipient parent should not have to sacrifice his/her claim for support (or increased support) during the months when (s)he engages in informal negotiation: Chrintz; see Dickie v. Dickie (2001), 2001 CanLII 28140 (ON SC), 20 R.F.L. (5th) 343 (Ont. S.C.J.).

[121] Choosing the date of effective notice as a default option avoids this pitfall. By “effective notice”, I am referring to any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/her interest in certainty becomes less compelling.

[122] Accordingly, by awarding child support from the date of effective notice, a fair balance between certainty and flexibility is maintained. Awaiting legal action from the recipient parent errs too far on the side of the payor parent’s interest in certainty, while awarding retroactive support from the date it could have been claimed originally erodes this interest too much. Knowing support is related to income, the payor parent will generally be reasonable in thinking that his/her child’s entitlements are being met where (s)he has honestly disclosed his/her circumstances and the recipient parent has not raised the issue of child support.

[123] Once the recipient parent raises the issue of child support, his/her responsibility is not automatically fulfilled. Discussions should move forward. If they do not, legal action should be contemplated. While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity after effective notice may indicate that the payor parent’s reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. The federal regime appears to have contemplated this issue by limiting a recipient parent’s request for historical income information to a three-year period: see s. 25(1)(a) of the Guidelines. In general, I believe the same rough guideline can be followed for retroactive awards: it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.

[124] The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child’s support entitlement was being met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of child support payable — is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments.

[125] The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.

[137] The D.B.S. appeal involves an original application for support. As the parents were not married, the regime under the Parentage and Maintenance Act applies.

[138] The chambers judge, Verville J., decided that a retroactive award would be unfair in the circumstances. Paperny J.A., writing for the Alberta Court of Appeal, allowed the appeal and ordered that the matter be returned to a chambers judge. I would restore Verville J.’s original order.

[139] On application of the principles and factors discussed above, I agree with Verville J. that retroactive support is not justified in these circumstances. While the mother states that she did not know support might have been owed, parents have a responsibility to inquire into matters like this. Concerning the circumstances of the child, Verville J. noted that the present household incomes of the two parents were roughly equal.

[140] As to the conduct of the father, the mother has made allegations of threatening and/or dominating behaviour with reference to various times in their post-separation relationship. Yet, the chambers judge made no finding of fact that would support such allegations. That said, a further question is what the father revealed about his income to the mother. A court must inquire into whether the payor parent was hiding, or failing to reveal, the factual circumstances that would give rise to a new or increased support obligation. Again, however, the chambers judge made no such finding.

[141] Most important, however, Verville J. held that a retroactive order would not necessarily benefit the children. I believe this finding to be crucial. In the circumstances of this appeal, where I cannot find any blameworthy conduct on the part of the payor father, and where the chambers judge held that a retroactive award would be “inappropriate and inequitable”, I find myself compelled to defer to his original order.

[142] This appeal should be allowed and the order of Verville J. restored, with costs in this Court and in the Court of Appeal.

[143] The order of the chambers judge should be restored in the T.A.R. appeal as well.

[144] In this appeal, the chambers judge considered factors that I have listed as being relevant to a decision of whether retroactive support should be granted. Perras J. seemed to attach particular significance to the hardship that could be caused by a retroactive award. This is not surprising, given that the $15,771 sought by the mother is a very large sum to pay for a father earning around $23,000 annually. Concerning the father’s conduct, it is important that Perras J. did not find the father to be acting deceitfully. Rather, Perras J. found that he “honoured his obligation faithfully”. That said, Perras J.’s prospective order clearly recognized that the father’s income mandated higher child support payments than what he actually paid.

[145] While he did not consider all the factors I have listed by name, I am satisfied that Perras J. took a holistic view of the matter and came to the conclusion that it would not be appropriate to order a retroactive child support award in the circumstances. For instance, he seemed to consider the father’s conduct far from blameworthy. He noted that the children in question are presently living in a home with a household income “in the low $50,000’s”. While there are other children from a previous relationship to support with this income, it remains substantially greater than what the father earns to help support his new spouse and her children. I ultimately believe the chambers judge’s conclusion merits deference. The original order is restored and the appeal allowed, with costs in this Court and in the Court of Appeal.

[146] The appeal in the Henry case should be dismissed. Turning to the relevant factors, I believe there was no unreasonable delay in this case. Rowbotham J. accepted that the mother could not afford a lawyer. Nonetheless, the mother broached the topic of increasing the father’s child support obligations to the best of her ability, given her lack of legal knowledge, her ignorance of Mr. Henry’s actual income, and the intimidation she felt from her ex-husband. Though some requests from Ms. Henry resulted in the father making some financial contribution, these contributions stayed well below what they should have been. Living in a different city, the mother did not know precisely how substantial the father’s financial means were.

[147] Based on the principles I have discussed in these reasons, there should be no dispute that the father in the present appeal acted in a blameworthy manner. Especially when a payor parent is acutely aware of the needs of his/her children living with the recipient parent, it is no excuse to shrug off one’s obligations by saying the recipient parent never asked for disclosure. But Mr. Henry went even further: he insinuated that he did not have great financial means and that the mother’s financial management was to blame; and on one occasion, he even asked her to give financial assistance. Although he complied with the obligation set forth in the child support order, in the circumstances of this appeal, this fact alone does not imply that Mr. Henry reasonably believed his children’s entitlements were being fulfilled. Mr. Henry was aware that his income had risen substantially since the original order was rendered, he was aware that his children were living at levels commensurate with his ex-wife’s low income, and he still refused to raise his payments to levels appropriate to his income. This conduct falls well short of what is expected from a parent.

[148] On the issue of the children’s circumstances, both children lived in conditions far below what they should have for substantial periods of time. The children implicated in this appeal deserve compensation for the unfulfilled obligation of their father, and I see no reason to conclude that they should not benefit from a retroactive award now.

[149] Overall, I am satisfied that Rowbotham J.’s award would not impose too great a burden on the father. It is true that he has two children of his new marriage to provide for. But Rowbotham J.’s order of periodic payments, such that the unfulfilled obligation is paid off slowly until 2010, seems very fair to the father in this case, considering all the circumstances.

[150] I would add that the eldest child affected by Rowbotham J.’s order was no longer a child of the marriage when the Notice of Motion for retroactive support was filed. In the circumstances of this appeal, however, this fact has no effect on the jurisdiction of the court to make a retroactive child support order under the Divorce Act. Because Mr. Henry did not disclose his income increases to Ms. Henry earlier, she was compelled to serve him with a Notice to Disclose/Notice of Motion in order to ascertain his income for the years relevant to this appeal. This formal legal procedure, contemplated in the Guidelines and a necessary antecedent to the present appeal, sufficed to trigger the jurisdiction of the court under the Divorce Act. Because it was completed prior to the time the eldest child ceased being a child of the marriage, the court was able to make a retroactive order for this daughter.

[152] Concerning this appeal, I believe the chambers judge properly weighed relevant considerations in deciding upon the award. Thus, he noted that the disparity of incomes between the parents was great and the mother paid a disproportionate share of the burden for supporting the children, but also that the financial burden of a retroactive award is significant. Although some remarks seemed to indicate that he saw the retroactive award as compensating the mother, I accept that he rightly ordered the award for the benefit of the children.

[153] I believe Belzil J. came to an appropriate conclusion that a retroactive award was due, after a detailed consideration of the evidence before him. The mother explained that previous litigation has been overwhelming and had strained her relationship with her daughter; it is understandable that she would be reticent to commence the process again. More important, given the father’s substantial income — almost $100,000 in 2003 — he cannot be considered blameless in not paying child support. In such circumstances, where the father was well aware that he could afford child support but where such support was coming uniquely from the mother, the father’s failure to meet his obligations to his children should not be easily excused. The blameworthiness of the father’s conduct is only exacerbated by his e-mail of April 3, 2003, in which he did not take advantage of the opportunity to lend financial support when it so clearly arose.

[154] Concerning the date chosen for the retroactive award to begin, I see no reason to alter Belzil J.’s award. The father has no compelling interest in certainty in this appeal: he had no reasonable belief that his support obligation was being fulfilled. Belzil J. still chose to make the award retroactive only to January 1, 2003, even though the father was deficient in his obligations well before this time. This date has not been cross-appealed by the mother, and I will therefore leave it undisturbed.

[155] This appeal is therefore dismissed with costs.

[51] Has there has been a material change in circumstances since the March 23, 2018 order was made which would justify a variation of the child support orders? Mr. Tweedale argues that both his incarceration and his inability to return to practice as a lawyer are material changes in circumstances which, if known by the court in March 2018, would have resulted in a different order.

[52] Ms. Stark argues that there has been no material change in circumstances. She submits Mr. Tweedale is deliberately unemployed, or under-employed. She relies on N.D.S. v. J.A.S., 2020 BCSC 1034, where the court summarized the decision of Rogers v. Rogers, 2013 ONSC 1997 as follows:

[102] The court in Rogers concluded that the payor’s loss of employment and reduction in income was a function of his own intentional conduct in repeatedly breaking the law, knowing that in doing so he could lose his job and undermine his income-earning potential. The court took the view that for public policy reasons the consequences of the payor spouse’s misconduct and resulting underemployment should not be visited upon the recipient spouse or the children of the relationship. 

[53] Ms. Stark further argues that on an application to change an imputed income, the onus is on the applicant to establish why the original imputation was required, and what circumstances have changed to justify a change in the imputation of income. The applicant must do more than show that he has not achieved an income at the level previously imputed. As stated by the court in Trang v. Trang, 2013 ONSC 1980 at para. 53:

If “declared income” automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications – as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong. 

[54] The reasoning of the court in Trang was adopted in Lessard v. Mahoney, 2019 BCSC 551 and Colucci at para. 63.

[55] While the court in March 2018 knew that Mr. Tweedale was released on bail pending his appeal, the court would have known that, should the appeal fail, Mr. Tweedale would be remanded into custody for at least 18 months. In March 2018 Mr. Tweedale was a non-practicing and unemployed lawyer. This would also have been known to the court when the order was made.

[56] The court imputed to Mr. Tweedale a significantly lower annual income in March 2018, presumably because of his pending incarceration and loss of professional employment.

[57] Mr. Tweedale has now completed the custodial portion of his sentence. He continues to be subject to uncertainty regarding his ability to return to the practice of law. However, before me he remained optimistic that he will be able to do so.

[58] The difficulty I have with Mr. Tweedale’s position on this application, is that he has provided me with no steps he has taken to obtain employment other than as a research lawyer. He has not provided any evidence of efforts he has made to pursue other job opportunities. Returning to the practice of law, even to a limited extent, is a difficult path for Mr. Tweedale. Yet it appears from his affidavit material that this is the only path he has pursued. He has not provided any evidence to establish a finding that he is unable to obtain a different kind of employment, even bearing in mind his criminal conviction. A criminal conviction is not a bar to many kinds of employment.

[59] In the face of an order which requires him to pursue employment, and which is in no way limited his employment to the practice of law, Mr. Tweedale has not done enough. Before he was remanded to custody, and since his release in July 2020, his only efforts to obtain employment appear to be limited to doing a small amount of research work.

[60] He states that he can earn $75-$100/hour doing research. However, if he cannot obtain sufficient hours of work, he is earning nothing. He must fill in his time with other remunerative work, while he attempts to return to practice. It is not enough to argue that his ability to practice law is restricted and therefore he cannot earn a living. He must earn a living outside the practice of law and cannot wait to be reinstated before he begins complying with support orders.

[61] If Mr. Tweedale earned $75/hour and worked 37 hours per week, he could earn over $130,000/year. If he earned $100/hr, his income would rise even further. If he earned minimum wage, he would earn approximately $26,250/year. The court imputed an annual income to Mr. Tweedale of $70,000 in 2018. This is approximately equal to what he would earn working as a research lawyer part time, and it represents a mid point between what he could earn working as a research lawyer full time and what he could earn in a minimum wage job. In the result, I find that $70,000 continues to be a reasonable imputation of income for Mr. Tweedale.

[62] I find that there has been no material change in circumstances in relation to the income imputed to Mr. Tweedale. His incarceration and inability to practice law were known to the court at the time the order was made. I find that Mr. Tweedale has not established a change of circumstances which would have resulted in a different order than the one made in March 2018 as it relates to Mr. Tweedale’s imputed income. I decline to vary the imputation of income as found in the March 23, 2018 order, and confirm that Mr. Tweedale has an imputed income of $70,000 pursuant to the Guidelines.

[8] Section 17(1), (4) and (4.1) of the Divorce Act, R.S.C. 1985, c. 3 (2d Supp.) [DA] authorizes the court to vary or suspend a support order if there is a change in circumstances which, if known at that time, would have resulted in different terms: Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670.

[...]

[12] I find that the change in residence of J.S. is a material change that directly impacts the amount of child support that should be paid.

[56] Under subsection (a), I have imputed Mr. Shih’s income for 2020 at $185,000 and at $160,000 for 2021. The income imputed to Ms. Shih for 2020 will be $75,000 and for 2021 the sum of $70,000.

[57] As of May 1, 2020, J.S. began living exclusively with Mr. Shih and A.S. remained in a shared parenting arrangement.

[58] I find for the period of May 1, 2020, to December 31, 2020, Ms. Shih should have paid child support of $1,164 per month. For the same period, Mr. Shih should have paid child support of $1,629 per month. This represents a set-off amount of $465 per month that Mr. Shih owes to Ms. Shih. For this period, the total amount of child support Mr. Shih should have paid is $3,720. This is based on the incomes I have imputed to the parties for 2020 as well as the change in the shared parenting regime for J.S. to him living exclusively with Mr. Shih.

[59] During the period of May 1 to December 31, 2020, Mr. Shih paid the sum of $1,643 monthly for the period of May to November 2020, being seven months, or the sum of $11,501.

[60] As a result, Ms. Shih owes the sum of $7,781 to Mr. Shih for the overpayment of child support.

[61] I have found that commencing on January 1, 2021, the income to be imputed to Mr. Shih is $160,000. The income to be imputed to Ms. Shih is $70,000. Using the same shared parenting regime for A.S., and with J.S. living exclusively with Mr. Shih, Ms. Shih should pay the sum of $1,086 monthly and Mr. Shih should pay the sum of $1,434 monthly. The set-off amount requires Mr. Shih to pay Ms. Shih a sum of $348 monthly.

[62] For the period of January to June 2021, the parties paid no child support to each other. As such, the amount of child support Mr. Shih owes Ms. Shih is $2,088. At present, Ms. Shih owes Mr. Shih the sum of $5,693. I arrived at that sum by taking what Ms. Shih owes Mr. Shih for overpayment, being $7,781, and deducting the $2,088 Mr. Shih owes Ms. Shih for retroactive child support for the period of January to June 2021.

[63] I have considered whether in these circumstances it would be grossly unfair to Ms. Shih to enforce payment of the retroactive child support and the overpayment of child support by Mr. Shih. In all the circumstances, I am convinced that the sum of $5,693 should be paid. Ms. Shih was aware of the change in J.S.’s living circumstances and Mr. Shih requested that a change be made to child support in August 2020. Ms. Shih would not agree to any change, prompting the need for the application for interim relief before Ahmad J. However, I will give Ms. Shih time to pay the $5,693 so that the financial hit will not be as severe.