“Motions to change support are governed by subsection 37(2.1) of the Family Law Act which reads as follows:
37(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under section 33.
The court’s authority to make a retroactive support order on a Motion to Change is contained in clause 34(1)(f) of the Family Law Act. This clause reads as follows:
Powers of court
34 (1) In an application under section 33, the court may make an interim or final order,
(f) requiring that support be paid in respect of any period before the date of the order;
As income was imputed to the father by Justice Sherr, the father must start by demonstrating that circumstances have arisen since the date of the previous order such that it is no longer appropriate to impute income to him or at least that it is no longer appropriate to impute income to him in the amount previously determined by the court: Trang v. Trang, 2013 ONSC 1980 (CanLII).
In paragraph 52 of Trang v. Trang, 2013 ONSC 1980 CanLII, the court wrote,
A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent “declared” income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:
a. It is no longer necessary or appropriate to impute income. The payor’s representations as to income should now be accepted, even if they weren’t accepted before.
Or,
b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.”
Hutchinson v. Crooks, 2022 ONCJ 620 (CanLII) at 18-21