Two Decades Of Retroactive Child Support: $900,000
By Mason Morningstar, Toronto Family Lawyer - 5 Minute Read
Jansen v. DiCecco, 2025 ONCJ 189
“The request by the mother to adjust child support starting on August 1, 2003, initially gave the court considerable pause. This is the longest retroactive support claim this court has seen. It has not dealt with the request lightly.”
Most family lawyers will also be surprised at the length of retroactivity. There is an often discussed “3-year rule” relating to retroactive child support that is sometimes misunderstood. This “rule” revolves around concepts of “effective notice” and “formal notice”. Effective notice has a low bar; the support recipient must simply “broach” the subject of modifying the support payments with the support payor. Once this is done, the payor can no longer assume that the status quo is fair. Formal notice requires something more; generally written correspondence from the recipient or counsel, or starting legal proceedings.
The Supreme Court in Colucci stated that the retroactive start date is presumed to be the date of effective notice, so long as that date is within three years of the date of formal notice. In other words, once a party gives effective notice, they have three years to take formal steps to vary the support arrangements to preserve the presumptive retroactive start date.
From there, the court has discretion to depart from the presumptive retroactive start date where the result would otherwise be unfair. In exercising this discretion, the court will look to the D.B.S. factors, as described in Michel. Particularly, the court will be looking for any “blameworthy” conduct that the payor may have engaged in. Generally, blameworthy conduct is anything that privileges the payor parent’s own interests over their children’s right to an appropriate amount of support (for example, not disclosing an increase in income to the recipient). If any blameworthy conduct is found, the court may select a retroactive date well beyond the “3-year rule”.
In this case, Justice Sherr noted that the presumptive retroactive date was March 1, 2014. In reviewing whether the father engaged in any blameworthy conduct, the court noted:
“This case is a classic example of the feminization of poverty set out by the Supreme Court of Canada in Michel. The mother has provided understandable reasons for her delay in coming to court. She has demonstrated considerable courage in her dogged pursuit of this claim and achieving some measure of justice. The father has engaged in severe blameworthy conduct. He has weaponized his superior resources to impoverish the mother and the son. The circumstances of the son were disadvantaged. The father has lived a luxurious lifestyle. He owns three properties. The mother and the son often lived in poverty. A retroactive order will not cause the father hardship. He built up considerable net worth at the expense of the mother and the son. The mother will suffer hardship if a retroactive order is not made.”
Justice Sherr found the father’s blameworthy conduct to be “as bad as it gets”, and had ample evidence to depart from the presumptive retroactive start date. As such, child support was retroactively adjusted to August 1, 2003, being ~10.5 years before the presumptive start date, and ~22 years from the date of the order.
From there, the court had the pleasant task of determining the father’s income for the past two decades despite his financial disclosure being “woefully incomplete, unreliable and not credible”. The father was self-employed which generally poses its own complications for income determination. Normally, a party will provide their business’ financial statements and supporting documents. The court then examines that evidence to determine whether expenses are being inappropriately deducted from income, and whether retained earnings of a corporation are being improperly accumulated to artificially reduce a payor’s income (something that may be permissible for tax purposes but not for family law purposes). The court will then assess the actual income of the business.
Justice Sherr acknowledged that any method he used to determine the father’s income would be imperfect, and followed an interesting line of reasoning: he reviewed what evidence he did have regarding the father’s net worth throughout the years, and made inferences as to how much income he must have earned to accumulate that net worth. In doing so, he found that the father must have earned significant unreported income, and applied an income tax gross-up to that income. The court ultimately found the father’s income for support purposes to be as follows:
2003 – 2005: $321,669
2006 – 2021: $701,411
This resulted in arrears of $899,811. Large arrears are often payable in chunks. Sometimes, the court will attach a condition that if a payment is missed, the full amount will become payable forthwith. Here, the court ordered from the outset that the full amount is payable forthwith, as the father had sufficient wealth to satisfy the arrears.
What Happens From Here?
Assuming the father does not successfully appeal, he will presumably ignore this court order as he has ignored previous orders. However, this order will be enforceable by the Family Responsibility Office (FRO), which is effectively a government-sanctioned collection agency for support arrears that has wide powers. For example, if the father does not pay, FRO may garnish his bank accounts, have his driver’s license and passport suspended, register a lien against his property, file a writ of seizure and sale against his assets, or even request that he be incarcerated at a default hearing.
Lastly, the mother will have the opportunity to make costs submissions. I suspect there will be a discussion of “bad faith” under Rule 24(10) of the Family Law Rules, which will open the door to full recovery costs. I also suspect that any costs awarded will be characterized as child support so they are equally enforceable by FRO. As an important aside, child support arrears (along with any costs that are enforceable as support) are not discharged by bankruptcy.
This case is another strong message to family law litigants who refuse to provide appropriate financial disclosure and otherwise mislead the court about their income: this behavior will not be tolerated and will be punished aggressively.
As always, none of the above is legal advice; it is information only. If you have questions about your situation, speak to a knowledgeable family lawyer for assistance.
Written by Mason Morningstar, Toronto Family Lawyer