Decades Later, a Significantly Varied Support Order

On April 9, 2025—take notes of this date–Justice Stanley B. Sherr released Jansen v. DiCecco, 2025 ONCJ 189. The matter involved the variation of an initial child support order issued in July 2003 (“2003 Order”), pursuant to s.37(2.1) of the Family Law Act. The Applicant mother sought child support of $1.4 million, retroactive to August 2003, the month after 2003 Order was issued. The parties were never married, and the child had no relationship with his father.

The 2003 Order was for $700 per month in support, based on $89,100 of imputed income, with a contribution of $305 per month to s.7 expenses.

The issues before the Court in 2025 included whether there was a material change to the father’s income since the 2003 Order and the date of the change, the presumptive start date for a change in support, the quantum of support (including whether to impute income), the considerations for the quantum of support for a child over 18, and whether to order arrears of support.

The litigation history after the 2003 Order included a June 2019 motion by the mother to change support. The father responded, requesting termination of support. In 2021, after a contested motion, support was terminated effective May 31, 2021. In October 2022, the father sought to dismiss the mother’s Motion to Change, which was denied. The mother moved to strike the father’s Response to her Motion to Change. Her motion to strike was denied on May 23, 2023, and the Court ordered the father to make disclosure and pay costs. In October 2023, the Court struck the father’s response “due to his persistent non-compliance with court orders” (at paragraph 5). This effectively rendered the matter uncontested, and a trial was set with limitations on how the father could participate.

During the trial, the Court made a number of evidentiary rulings about the contents of the mother’s affidavit and found that the father was neither credible nor reliable as a witness, citing numerous examples of his dishonesty. In assessing the examples of the father’s dishonesty, the Court concluded that this “is one of the most egregious cases of financial deception this court has seen in many years” (at paragraph 47).

Relying on Colucci v. Colucci, the Court considered the framework for an application to increase support retroactively, which must meet the threshold of a past material change in circumstances. The Court found that the father had earned materially more income than what was attributed to him in 2003.

The Court then considered when the father had effective notice that child support was an issue, which can be satisfied by “any indication by the recipient parent that child support should be paid” or that the amount needed to be renegotiated. The Court compared effective with formal notice, which is written correspondence. In this case, the mother asked for increased support in 2009 and the Court accepted that the father had effective notice at that time, with formal notice following in March 2017 when the mother filed her Motion to Change in Court. Using the limits established in Colucci, that a presumptive start date for a change in support cannot exceed 3 years from the date of formal notice, the start date would have been March 1, 2014.

However, the mother sought a change to support going back a further 11 years, to the date of the 2003 Order.

The Court had to consider whether to exercise its discretion to extend a start date beyond the 3 year limit. It analyzed various reasons why a litigant in a family matter might delay an application, and what type of delay can be considered “reasonable.” An important underpinning for the Court’s consideration is that regardless of delay, a payor who is aware of a support obligation knows that support is based on their line 150 income and that it is calculated annually (at paragraph 74), so delay is rarely prejudicial to the payor.

Here, the Court found the mother’s delay was reasonable because of years of the father’s deliberate misrepresentations and non-disclosure about his income increases, the mother’s mental health status after an assault, which she associated with her demands for more support (although connection was not a finding made by the Court), and the father’s clear distain for her. He was retributive when she asked for more money. She feared litigation costs.

The father in this case was found to have engaged in blameworthy conduct, conduct that “privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support” (paragraph 80).

His conduct was “as bad as it gets” (at paragraph 84). The Court also considered the significant financial hardship of both the mother and her son, when support was lower than it should have been. There was no hardship for the payor: he was worth over $7 million in 2020.

It was against this matrix of facts: delay for which there were accepted reasons and the blameworthy conduct, that the Court proceeded to set its change date to 2003 as the mother requested. The Court noted how very unusual this period of retroactivity is, but also noted that the presumptive start date is the date of the material increase in income, especially given the “egregious blameworthy conduct and bad faith to the level found in this case” (at paragraph 97).

The Court then entered into an analysis of considerations for imputing income and used an approach that attempted to track the father’s growth in net worth, which was substantial in this case. It attempted to account fairly for appreciations in net worth that derived from externalities like the market, and attributed unexplained growth to income, and considered that the father was likely not paying accurate income taxes, and he seemed quite bold about admitting this fact: “A smart person tries to bury things in the business and that’s what I did. You can try to uncover it I guess” (at paragraph 46). For the Court, the father’s declared income numbers literally did not add up. The Court had flagged this issue to the father and asked him to account for his increased net worth. The father declined to do so and the Court drew an adverse inference against him and imputed significant income.

The Court exercised its discretion not to depart from the child support guidelines for payors with income over $150,000. It was the father’s onus to make his case for that departure, and he failed: “he accumulated his wealth, to some extent, by failing to pay fair child support” (at paragraph 154). The mother’s claim for s.7 expenses was not allowed, in part because of her failure to adduce sufficient evidence of the costs, the reasons for the child’s lack of contribution to his expenses, and the questionable eligibility of some expenses.

The total arrears calculation resulted in payment order of $899,811.

The Court comments: “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” (at paragraph 98).

This is an unusual example of a Court battle over 20 years long, to address what many lawyers would suggest is one of the easier elements of family law litigation: establishing that child support is payable based on the payor’s income. The case provides lawyers with excellent tools for imputing income in matters of non- or inadequate disclosure.

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