The Ontario Court of Appeal in DiFrancesco v. Couto (2001 CanLII 8613) (ON CA) held that the starting point for any motion to change a child support order is establishing a change in circumstances. If the court holds a payor’s income to be lower than the income imputed on him, it will be construed as a change in circumstances warranting an adjustment of child support payments.
The decision whether to reduce or rescind arrears is discretionary and involves consideration of the following factors:
(1) the nature of the obligation to support, whether contractual, statutory or judicial;
(2) the ongoing financial capacity of the respondent spouse;
(3) the on-going need of the custodial parent and the dependent child;
(4) unreasonable and unexplained delay on the part of the custodial parent in seeking to enforce payment of the obligation, tempered, however, in the case of child support with the fact that such support obligation exists for the child’s benefit, is charged with a corresponding obligation to be used by the custodial parent for the child’s benefit and cannot be bargained away to the prejudice of the child;
(5) unreasonable and unexplained delay on the part of the respondent spouse in seeking appropriate relief from his obligation; and
(6) where the payment of substantial arrears will cause undue hardship, the exercise of the court’s discretion on looking at the total picture, weighing the actual needs of the custodial parent and child and the current and financial capacity of the respondent, to grant a measure of relief, where deemed appropriate.
After analyzing the above, the courts may adjust arrears.