News

When is a Child Support Order not a Child Support Order?

  • Jonathan Krashinsky
  • April 6, 2022          

Two recent decisions of the Supreme Court of Canada have upended fifteen years of relative stability in the area of child support arrears. Where does that leave parents paying, and receiving, child support?

The keynote case of D.B.S. v. S.R.G., 2006 SCC 37, decided by the Supreme Court of Canada, set out a “balancing act” test that attempted to balance the right of the rights of recipient parents to the correct amount of support under law, against the rights of payor parents to have some certainty, and organize their financial futures without being “surprised” by large claims for retroactive reconsiderations going back many years. DBS created the presumption that you go back to the “date of effective notice” in reconsidering child support, and created a “three-year rule” that wasn’t a rule at all – really, more of a loose and oft-overridden guidelines – that was commonly interpreted as a maximum three-year review period for recalculating child support.

Simple, right? Not really, and now perhaps even less so.

The cases of Michel v. Graydon, 2020 SCC 24 and Colucci v. Colucci, 2021 SCC 24, have changed the playing field completely. The Supreme Court of Canada, in two decisions, has undermined the ability of a payor parent to rely on an existing court order or agreement, where their own income has increased materially. It would appear that these cases have created two separate presumptions as to how far back a review can go, based on whether or not the payor parent is looking to reduce support, or the recipient parent is looking to increase it. It is harder than ever before, in light of these cases, for a payor parent whose income has gone up to avoid a retroactive reconsideration, back to the date of the change in income.

Have a look at the cases here!

Michel v. Graydon, 2020 SCC 24 https://canlii.ca/t/j9p0r 
Colucci v. Colucci, 2021 SCC 24 https://canlii.ca/t/jg7j5

And here’s one of the most recent cases of the Ontario Superior Court to apply them in our jurisdiction: Saroli v. Grette, 2022 ONSC 148 (CanLII) https://canlii.ca/t/jm04q

Confused? Need advice about retroactive child support, or any other family law issue? We’re happy to help. Please contact Woolcott Krashinsky LLP at info@dwjklaw.com with your questions. We’re happy to follow up with you and assist.

Get Started Now. Woolcott Krashinsky... Where Results Matter