Ontario Court of Appeal Upholds Retroactive Child Support Order due to Change in Parental Incomes

Divorced parents are often at loggerheads when it comes to matters of child custody and child support. With the former spouses failing to agree on such terms during the divorce or separation, it will be up to the courts to decide and finalize these matters. In such cases, it is crucial to have an experienced divorce lawyer looking out for your interests. For example, each parent’s share of the child support expenses will be proportionate to their income. Your divorce lawyer will follow up with your former spouse for full financial disclosure and financial statements so that the final child support order will be fair to both parties. A recent case in the Ontario Court of Appeal demonstrates the importance of ensuring complete financial transparency in child support cases.

What is the background of the child support case?

In this case, Douglas v. Faucher, 2025 ONCA 293, the father of the children was unaware of the improved financial situation of his former spouse and continued to pay a disproportionate amount in child support. They were married back in 2002 and had three children together. Subsequently, they were separated in 2013, and the divorce was finalized in 2015. It is worth noting here that a catastrophic injury in 2010 had left the father quadriplegic since 2010.

Even before the divorce was finalized, a parenting assessment report in 2014 had recommended a phased transition to equal parenting time between the spouses by September 2018. The final parenting arrangement and support obligations were also finalized in 2015. For a while, it seemed that the former spouses were on their way to transitioning to an equal parenting time arrangement before the deadline.

The father had noted that the first phase of this transition was achieved in 2016, and his parenting time had increased to 41 percent by 2017. Subsequently, the mother stopped cooperating in transitioning to an equal parenting arrangement.

Father sues for equal parenting time and a retroactive child support order.

Soon after this, the father sought equal parenting as initially agreed, shared decision-making responsibilities, and a retroactive adjustment to his contributions to child support from 2017 onwards. He contended that the economic situation of the spouses had changed significantly since the divorce, with the mother now earning more than the father. He pointed out that while he was making $160,000 per annum, she was making around $200,000. The mother countered this motion by requesting the sole decision-making responsibility and for the current parenting arrangements to continue.

The Ontario Superior Court of Justice, in September 2023, offered partial relief to the father. The judge acknowledged the change in economic circumstances of the former spouses and ordered the mother to make payments towards adjusting the disproportionate contribution of the father from 2018 onwards. However, the judge ordered the current parenting arrangement to continue while denying the sole decision-making responsibility to the mother.

Mother appeals the decision in the Ontario Superior Court of Justice.

The mother challenged the motion judge’s order in the Ontario Superior Court of Justice. In Douglas v. Faucher, 2023 ONSC 5026, she contended that the judge erred in determining that there were any substantial differences in the earnings between the spouses. It was also pointed out that the father had less than 40% of the parenting time throughout this time, and the children, who are now old enough, might prefer the current situation to continue. She requested a Voice of the Child report to understand the preferences of the children in this matter.

What did the Voice of the Child report say?

A Voice of the Child report tries to capture the preferences, opinions, thoughts, and feelings of the children involved in parental disputes, such as a divorce or separation. This information helps the judge in the case to make a better decision regarding the best interests of the child.

In this case, the Voice of the Child report was submitted to the court in April 2021 with the following observations.

• The children would prefer to be left out of the parental disputes altogether.
• They seem to be suffering from a certain amount of anxiety as a result of the constant fighting between their parents.
• They would prefer their parents not discuss the parenting schedule at all with them.
• The feasibility of the 2/2/5/5 arrangement, where each parent will get to keep the children interchangeably on weekdays and weekends, was also discussed with the children. It was found that, generally speaking, the children were comfortable with the present arrangement.

Why did the Courts reject the mother’s appeal?

But the Ontario Superior Court rejected her appeal and upheld the retroactive adjustment of child support payments to the father. The court also ordered the current parenting arrangement to continue without granting her full decision-making responsibility as requested. She then challenged this decision at the Ontario Court of Appeal.

The Appeals Court also agreed with the lower court’s decision. In rejecting the appeal, the judge made the following observations:

• It is clear that the material circumstances of the former spouses have changed since the divorce back in 2015. The lower court’s decision to grant retroactive child support payments to Mr. Faucher was upheld.
• Since the accident in 2010, the Respondent’s medical expenses have increased considerably. Therefore, his request to reduce his child support burden proportionate to his income and expenses is reasonable.
• The judge declined the request from the Respondent for equal parenting time, citing the following reasons:
  • The children are now settled into their stable living and schooling arrangements.
  • The children, especially the eldest, who is no longer a minor, are likely to make up their minds about whom they want to spend more time with, considering their age.
  • From the Voice of the Child report, there is no clarity among the children about making any changes to the current parenting arrangement. Instead, the children made it clear that they did not want to play any part in the parental disputes.
• The court also rejected the Appellant’s request to have the sole decision-making responsibility for the children. The court noted that while the parenting styles of the former spouses were different, there was no evidence to show that the father was less effective when it came to the care of the children.

In summary, the mother would have to make payments to the father to adjust for his disproportionate contribution towards child support from 2018 onwards. All future child support payments will be based on the incomes earned by both parties in the previous year. The current parenting time arrangements will continue with both parents enjoying equal decision-making responsibilities.

How can our family lawyer help you in such cases?

This ruling clearly demonstrates the importance of seeking full financial disclosure from the other party in family law cases. Such financial matters cannot be decided based on assumptions. At Nanda and Associate Lawyers, our experienced divorce lawyers will provide you with proper legal guidance to avoid such costly mistakes in your case. If you are going through a separation or divorce, our lawyers will fight on your behalf to ensure that your financial interests are protected throughout. Reach out to our legal team today at 905-405-0199 for a consultation.