“The mother seeks a retroactive variation of all support back to July 1, 2013. It is her position that if this variation is ordered, the father owes her $1M. If the court orders a review retroactive to July 1, 2013, the father vigorously disputes this amount.
While the Separation Agreement provides for a review as of July 1, 2013, the court has the discretion to consider if such a long retroactive reach is appropriate given the facts of this case.
Colucci v Colucci, 2021 SCC 24, at paras. 6, 71-73, and 114, provides a revised approach for cases where the recipient of child support seeks a retroactive increase. The approach is summarized in para. 114 as follows:
114 It is also helpful to summarize the principles which now apply to cases in which the recipient applies under s. 17 to retroactively increase child support:
a) The recipient must meet the threshold of establishing a past materialchange in circumstances. While the onus is on the recipient to show amaterial increase in income, any failure by the payor to disclose relevant information allows the court to impute income, strike pleadings, draw adverse inferences and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.
b) Once a material change in circumstances is established, a presumptionarises in favour of retroactively increasing child support to the date therecipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.
c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.
d) The court retains discretion to depart from the presumptive date ofretroactivity where the result would otherwise be unfair. The B.S. factorscontinue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.
e) Once the court has determined that support should be retroactivelyincreased to a particular date, the increase must be quantified. The properamount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.
While this application is not brought under s. 17, Colucci remains the framework, with one exception. Proof of a material change in circumstances is not required because the Separation Agreement provides for the review. In any event, there is a material change in circumstances given the change in each party’s financial circumstances.
There is a presumption in favour of retroactively increasing child support “to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary” Colucci, at para. 114.”