“The applicable principles regarding the retroactive reduction of support and rescission of arrears are set out in Gray v. Rizzi, 2016 ONCA 152, in which the Ontario Court of Appeal adopted the analysis set out by Justice Chappel in Corcios v. Burgos, 2011 ONSC 3326. Ultimately, as stated by Justice Chappel, “the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their obligations should be eliminated.”
Where, as here, a payor can establish that a change in circumstances during the time that the arrears were accumulating, rendered him or her unable to make child support payments for a substantial period of time, the Court may provide relief by varying the child support order or rescinding arrears.” [Emphasis added.] See Corcios, supra at para 55. In such a case the following factors must guide the Court:
1. The nature of the obligation for support, whether contractual, statutory, or judicial;
2. The ongoing needs of the support recipient and the child;
3. Whether there is a reasonable excuse for the payor’s delay in applying for relief;
4. The ongoing financial capacity of the payor, and in particular, his ability to make payments towards the outstanding arrears;
5. The conduct of the payor, including whether he has made voluntary payments, whether he cooperated with support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. Behaviour that indicates willful non-compliance with the terms of the Order or a failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission of arrears.
6. Delay on the part of a support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to arrears;
7. Any hardship that may be occasioned by a retroactive order reducing or rescinding arrears, or by an order requiring the payment of substantial arrears.
See Gray, supra, at 61. [Emphasis added]
Full, frank, and timely disclosure of the basis for the request for a reduction in child support is an important consideration. As stated by Justice Chappel in Corcios, supra at 55:
[I]f a retroactive Order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim to an adjustment, or has delayed initiating court proceedings to change the Order.
In Gray, supra, Justice Brown of the Ontario Court of Appeal stressed that the payor seeking retroactive reduction or rescission of arrears must provide “reasonable proof” to support the claim so that the recipient can “independently assess the situation in a meaningful way and respond appropriately.” Justice Brown further noted that the obligation is ongoing and that the failure to comply with continuing disclosure obligations will “most likely… impact the remedy which the Court crafts.” See para. 63.”