Child Support in Ontario 

​ Child Support Guidelines
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To view the Federal Government's Simplified Table for Ontario:
https://www.justice.gc.ca/eng/fl-df/child-enfant/fcsg-lfpae/2017/pdf/ona.pdf 

The Child Support Guidelines require parties to child support orders or agreements   to exchange support information annually.  Serious financial consequences may arise for those who fail to comply.
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 Section 24.1 of the Ontario Child Support Guidelines came into effect in 2010. The section specifies that the tax return for the most recent year, including any materials included in the return such as T4 slips and the Notice of Assessment or Reassessment from CRA MUST be supplied to the other party each  year.   There is no doubt that payors who do not comply with this requirement will be liable for retroactive child support based on annual income increases.  Payor’s who experience an income reduction will not likely receive a retroactive arrears reduction on a motion to change if the annual income disclosure has not been provided. This has now been specifically confirmed by two Supreme Court of Canada decisions in 2020 and 2021 to be discussed below.
 
Apart from these mandatory requirements in Ontario, most separation agreements contain clauses which require the parties to annually exchange tax information and special expense details.
 
The risk of ignoring this annual disclosure requirement can be financially devastating.

CHILD SUPPORT ARREARS

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​In Colucci v. Colucci 2021 SCC 24 (June 4, 2021) the Supreme Court of Canada clarified the law as it applies to cases where a payor is asking the Court to reduce arrears. In this case a child support order was made for the parties two children before the child support guidelines came into effect in 1997. The payor made no voluntary payments and provided no income disclosure to the recipient. By 2012 the children were no longer dependent and the child support ended. The arrears had accumulated to approximately $170,000 by then. The payor commenced a motion to change asking the court to reduce his arrears to $40,000 to reflect his actual earnings in accordance with the guidelines since 1997.  The motions judge agreed with him. The recipient appealed to the Ontario Court of Appeal. The Court of Appeal overturned the motions judge. The father appealed to the Supreme Court of Canada. The Supreme Court of Canada agreed with the Court of Appeal effectively rejecting the payors request to reduce his arrears.  These are my main takeaways from this decision that now govern all cases where a payor is considering asking for a reduction in arrears:

1. As stated above, proof of annual income disclosure is a pre-condition to an arrears reduction. If the annual income disclosure has not been provided to the recipient there is likely no chance that the support will be adjusted downward for those years.

2. The payor must prove that effective notice of the request to adjust the guideline amounts has been given.

3. If the disclosure and notice has been given the court may adjust the guideline amounts for up to three years back from the date that the notice was given.

4. Current inability to pay will not justify a reduction in arrears.

5. If there is no basis for changing the amount of arrears, a Motion to Change could still be brought to adjust the ongoing monthly support amount in those cases where the children remain dependent.  The relief sought in the Motion to Change could also include a request for an order setting out a payment plan regarding the arrears. Full disclosure of the payor's complete financial situation is required, including evidence of attempts to borrow some or all of the arrears institutionally and from friends and family. In my view, if the ongoing support obligation has ended there is no basis for a Motion to Change simply for the purpose of setting a payment schedule. In those cases the repayment has the be negotiated directly with FRO.   

To review the full case  https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18909/index.do

RETROACTIVE CHILD SUPPORT

After the ​Child Support Guidelines were introduced there were numerous court decisions, many of which were conflicting,  dealing with the issue of the right to claim retroactive child support based on the payor's annual increase in income since the making of the last child support order. In effect, the retroactive support question comes down to this: can a support payor be ordered to pay what in retrospect should have been paid annually?
The obligation to pay retroactive support has been clarified by the Supreme Court of Canada in the 2020 decision, Michel v Graydon 2020 SCC 24
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18460/index.do
​Again in Michel v Graydon the payor failed to disclose his income. After the children were no longer dependent the recipient brought a motion for retroactive child support in the amount of $23,000 being the amount that the payor should have paid in accordance with his actual income. The motions judge agreed but the BC Court of Appeal did not based on a review of prior caselaw (particularly the 2006 SCC decision known as DBS) which indicated that retroactive arrears should not be ordered where the subject child was not longer a dependent. The Supreme Court of Canada agreed with the motions judge and confirmed that  the $23,000 retroactive arrears was owing. In so doing the SCC emphasized that guideline support is the right of the child and shouldn’t be denied based on a technical application of the DBS factors:
“Unmet child support obligations, whether they are in the form of arrears or have not yet been judicially recognized, are a valid debt that must be paid, similar to any other financial obligation, regardless of whether the quantum is significant. Further, the obligation to support one’s child exists irrespective of whether an action has been started by the recipient parent against the payor parent to enforce it, because child support is a continued obligation owed independently of any statute or court order”.
The takeaway is payors are likely to liable for retractive arrears if annual income disclosure has not been provided and voluntary support increases have not been paid. The amount of the retroactive award will continue to be subject to a discretionary balancing analysis :
[29]                         Having decided that the applicable legislative scheme confers authority on a court to order retroactive child support, the question then arises whether a court should order retroactive child support in the circumstances of the case. To be clear, and as D.B.S. shows, this is a distinct question and entails a distinct analysis. A court hearing an application for retroactive child support must consider whether the recipient parent’s delay in seeking variation is reasonable in the circumstances, the payor parent’s conduct, the circumstances of the child, and whether any hardship would result from a retroactive award (D.B.S., at para. 133). These same considerations are equally applicable after the child support beneficiary ceases to be a dependent child; while the beneficiary may no longer be a dependent child because of the recipient parent’s delay, it remains open to the recipient parent to show that their delay was reasonable.
[31]                         As to Mr. Graydon’s conduct as the payor parent in this case, it is really this simple. When a payor parent fails to pay the appropriate amount of child support, the recipient parent is left to shoulder the burden. If the recipient parent does not have the means to provide their child reasonable support, the child suffers. Both the recipient parent and the child may experience hardship because of a payor parent’s neglect. Seen in this light, it bears repeating that retroactive child support is not exceptional relief (D.B.S., at para. 5): there is nothing exceptional about judicial relief from the miserable consequences that can flow from payor parents’ indifference to their child support obligations. This is not to say that hardship is required to ground an award for retroactive child support, as there is also nothing exceptional about relief that creates a systemic incentive for payor parents to meet their obligations in the first place. Just as an order of child support is intended to provide children with the same standard of living they enjoyed when their parents were together (D.B.S., at para. 38), an order of retroactive child support provides an (albeit imperfect) remedy where that does not occur. And as this Court recognized in D.B.S., “courts are not to be discouraged from defending the rights of children when they have the opportunity to do so” (para. 60).
[32]                         Retroactive child support awards will commonly be appropriate where payor parents fail to disclose increases in their income. Again, D.B.S. is instructive: “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” (para. 107). And where the strategy for avoiding child support obligations takes the form of inadequate or delayed disclosure of income, the effect on the child support regime is especially pernicious. This is because the methodology adopted by the Federal Child Support Guidelines, SOR/97‑175, which are expressly incorporated in the FLA, results in information asymmetry. Apart from shared parenting arrangements, the Guidelines calculate child support payments solely from the payor parent’s income. At any given point in time, therefore, the payor parent has the information required to determine the appropriate amount of child support owing, while the recipient parent may not. Quite simply, the payor parent is the one who holds the cards. While an application‑based regime places responsibility on both parents in relation to child support (D.B.S., at para. 56), the practical reality is that, without adequate disclosure, the recipient parent will not be well‑positioned to marshall the case for variation.
[33]                         Failure to disclose material information is the cancer of family law litigation (Cunha v. Cunha (1994), 99 B.C.L.R. (2d) 93 (S.C.), at para. 9, quoted in Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34). And yet, payor parents are typically well aware of their obligation as a parent to support their children, and are subject to a duty of full and honest disclosure — a duty comparable to that arising in matrimonial negotiations (Brandsema, at paras. 47‑49). The payor parent’s obligation to disclose changes in income protects the integrity and certainty afforded by an existing order or agreement respecting child support. Absent full and honest disclosure, the recipient parent — and the child — are vulnerable to the payor parent’s non‑disclosure.