The appellant father applied to retroactively reduce child support and rescind approximately $170,000 in arrears accumulated over 16 years of non-payment, relying on alleged income decreases and a current inability to pay.
The motion judge retroactively reduced the arrears to $41,642 but the Court of Appeal reversed and ordered the full arrears paid.
The Supreme Court dismissed the appeal and established a unified framework under s. 17 of the Divorce Act governing both retroactive decreases and rescission of arrears.
For retroactive decreases, a presumption arises in favour of varying support back to the date of effective notice, up to three years before formal notice, with D.B.S. factors guiding any departure from that date.
For rescission of arrears, a strong presumption against rescission applies and is only rebutted where the payor establishes on a balance of probabilities that they cannot and will never be able to pay even with a flexible payment plan.
