“In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci. These are the steps for the court to take: C.S. v. K.M., 2023 ONCJ 106 (Ont. C.J.):
(a) The first step will be to determine the presumptive date of retroactivity as described in Colucci;
(b) The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors will guide the exercise of that discretion, as described in Michel v. Graydon; and,
(c) The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.
Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair: D.B.S., supra, para. 12.
The framework set out in the leading cases on retroactive child support: D.B.S., Michel v. Graydon and Colucci, all supra, all S.C.C. balances the competing interests of certainty and predictability, with the need for flexibility in a way that incentivizes payment of the right amount of child support when it is due and the timely disclosure of financial information — the linchpin of a just and effective family law system. Rules which create perverse incentives to ignore or postpone parental support obligations are to be firmly rejected in favour of legal standards designed with the fundamental purposes of child support in mind: Colucci, supra, para. 4.
Effective notice is given when the recipient provides some notice of his or her desire to review and adjust child support. Although effective notice can be as little as broaching the topic in conversation, formal notice is something more, generally taking the form of written correspondence from the recipient or counsel or the commencement of legal proceedings: Wilkinson v. Wilkinson, 2008 ONCJ 96 (Ont. C.J.).
Courts should avoid creating any incentive whatsoever for payor parents to avoid meeting their child support obligations: Michel v. Graydon, supra, para. 17.”