Jansen v. DiCecco: Retroactive Child Support Reaches New Heights

The Ontario Court of Justice’s decision in Jansen v. DiCecco, 2025 ONCJ 189, delivered by Justice Stanley B. Sherr on April 9, 2025, presents a significant development in Ontario family law, particularly concerning retroactive child support. The case involves an award of nearly $900,000 relating to a period spanning over two decades and highlights the judiciary’s approach to financial transparency and the enforcement of children’s rights to adequate support. This ruling draws on Supreme Court of Canada precedents such as Colucci v. Colucci, 2021 SCC 24, and Michel v. Graydon, 2020 SCC 25, thus reinforcing existing legal principles while further advancing issues of retroactivity and income imputation.

Case Facts

The claimant, Janet Jansen, sought retroactive child support for her son, then 25 years old, covering the period from August 1, 2003, to May 31, 2021, when his entitlement to support concluded. The respondent, David DiCecco, a self-employed businessman, consistently portrayed himself as a man of limited means, reporting annual incomes ranging from $46,000 to $93,000, with a single outlier of $162,406 in 2013. However, this narrative unraveled under scrutiny. Evidence of his lifestyle—ownership of multiple properties, thriving businesses, and extravagant expenditures—painted a starkly different picture. A pivotal revelation came from a 2019 mortgage application, which disclosed assets approaching $8 million and a net worth of over $7.1 million, in sharp contrast to his claimed $890,000 net worth that same year. Justice Sherr did not mince words, describing this as “one of the most egregious cases of financial deception” he had encountered (para. 47).

Jansen’s path to her successful claim was fraught with obstacles. She faced intimidation from DiCecco, battled mental health challenges including PTSD and bipolar disorder, and struggled with the financial burden of litigation. These factors delayed her pursuit of justice, yet the Court found her explanations credible and compelling, paving the way for a groundbreaking ruling that prioritized the child’s rights over procedural delays.

Legal Issues Before the Court

In coming to his decision, Justice Sherr focused on a series of legal issues:

1. Material Change in Circumstances: Had there been a significant shift since the original 2003 support order to justify revisiting it?
2. Retroactivity Start Date: From what date should retroactive support be calculated, given the lengthy delay?
3. Income Determination: How should DiCecco’s true income be assessed amidst his unreliable disclosures?
4. Guidelines Application: Should the Federal Child Support Guidelines be adjusted for an adult child or a high-income payor?
5. Section 7 Expenses: Were additional extraordinary expenses warranted?

Court Analysis

Establishing a Material Change in Circumstances

The Court quickly determined that a material change had occurred, rooted in DiCecco’s “serious misrepresentation of his income” since the 2003 order (para. 58). This finding aligns with Colucci v. Colucci, which established that non-disclosure constitutes blameworthy conduct sufficient to reopen support obligations. Justice Sherr elaborated, “The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty” (para. 81, citing Michel v. Graydon).

The Court’s approach here signals to practitioners that even long-standing orders are vulnerable to challenge when underpinned by deceit. It lowers the evidentiary threshold for recipients, reducing the need for exhaustive disclosure battles—a practical boon in cases of recalcitrant payors.

Framework for Retroactive Support

Justice Sherr applied the retroactive support framework from Colucci, which typically limits awards to three years prior to formal notice unless exceptional circumstances intervene.

Key dates were:

• Effective Notice: July 1, 2009, when Jansen first informally requested increased child support – this proved pivotal to establish the starting point for a claim for retroactive support.
• Formal Notice: March 1, 2017, when court proceedings commenced.
• Presumptive Start Date: March 1, 2014, three years before formal notice.

The Court deviated from the typical three year period, extending retroactivity to August 1, 2003 – the date of the original order. This precedential step was based upon a four-factor analysis:

• Reasonableness of the Mother’s Delay: Jansen’s hesitation stemmed from credible fears of DiCecco’s intimidation, compounded by her mental health struggles and financial constraints. Justice Sherr reasoned, “A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application” (para. 72). This finding invites lawyers to contextualize delays, focusing on barriers rather than timelines alone.
• Severity of the Father’s Conduct: DiCecco’s actions – persistent non-disclosure, hostility, and wealth accumulation at his family’s expense – were deemed egregious. The Court stated, “The father’s blameworthy conduct is as bad as it gets” (para. 84), signaling that the degree of misconduct can significantly extend liability.
• Child’s Financial Need: The stark disparity between the son’s impoverished upbringing and DiCecco’s affluence was a driving factor. Justice Sherr noted, “The son’s financial circumstances were seriously disadvantaged by the father’s failure to pay proper support” (para. 86), reinforcing that retroactive awards aim to correct historical inequities for the child, not merely punish the payor.
• Absence of Hardship: DiCecco’s $7.1 million net worth obliterated any claim of undue burden. The Court observed, “The father has lived a luxurious lifestyle. He owns three properties. The mother and the son often lived in poverty” (para. 98), highlighting equity as a counterweight to payor objections.

This departure from Colucci’s three-year norm echoes Michel v. Graydon, where retroactivity reached back to the initial order. It is noteworthy that both Michel and Colucci explicitly allow longer retroactivity in cases of blameworthy conduct. What’s novel in Jansen is the length of the retroactive period of 22 years and the innovative net worth methodology used to impute income. This suggests that Ontario courts may stretch retroactivity to its limits in cases of extreme deception, offering a potent tool for recipients and a cautionary precedent for payors.

Also noteworthy is the fact that although the child in the case was no longer eligible for support at the time of the ruling, retroactivity was still granted. This underscores that retroactive support is about rectifying past injustices, not just addressing current needs.

Innovative Income Imputation

Faced with DiCecco’s unreliable financial records, Justice Sherr employed a novel method to impute income:

• Net Worth Growth Analysis: The Court tracked increases—e.g., $398,000 from 2003-2005 and $5 million from 2006-2021.
• Exclusion of Legitimate Gains: Known appreciations, such as real estate market trends, were subtracted.
• Attribution of Remainder: The unexplained growth was attributed to unreported income, adjusted upward to account for tax evasion.

This resulted in imputed incomes of $321,669 annually for 2003-2005 and $701,411 annually for 2006-2021. Justice Sherr acknowledged the approach’s limitations, stating, “The court can only do the best it can with the evidence it has and the inferences that can be drawn from that evidence” (para. 114). Grounded in precedents like Sarafinchin v. Sarafinchin, [2000] O.J. No. 2855, this method provides a pragmatic solution when traditional disclosure is frustrated.

That said, the net worth imputation method may be subject to appellate scrutiny. Practitioners should anticipate potential pushback from payors challenging the reliance on inferences over direct evidence, ensuring their calculations are robust and well-supported.

Application of Child Support Guidelines

The Court closely applied the Federal Child Support Guidelines, rejecting modifications for:

• Adult Child Status: The son, a college student living at home until 2021, aligned with the Guidelines’ standard model. Justice Sherr explained, “The closer the circumstances of the child are to those upon which the usual guidelines approach is based, the less likely it is that the usual guidelines calculation will be found to be inappropriate” (para. 148). This reinforces predictability for practitioners handling support for post-secondary students.
• High-Income Payor: DiCecco argued for relief under Francis v. Baker, 1999 CanLII 659, which allows discretion for incomes exceeding $150,000. The Court dismissed this, citing his bad faith and the family’s deprivation. Justice Sherr asserted, “There is a complete absence of equity to support the court exercising its discretion under section 4 of the guidelines in favour of the father” (para. 154), emphasizing that equitable considerations trump mechanical income caps in egregious cases.

This adherence to table amounts reflects that payors acting in bad faith are unlikely to benefit from any discretionary reductions.

Blameworthy Conduct and the Weight of Delay

DiCecco’s behavior drew a scathing critique: “The father’s blameworthy conduct is as bad as it gets” (para. 84). The Court viewed his deception as a deliberate strategy to impoverish his family while enriching himself, justifying the significant award. Furthermore, Jansen’s delay was deemed reasonable, with Justice Sherr affirming, “Child support is the right of the child and should not be lost due to parental delay except in the few cases where the delay is unreasonable” (para. 73, citing Gray v. Rizzi, 2016 ONCA 152). This dual emphasis – punishing misconduct while excusing justified delays – creates a balanced framework for assessing retroactive claims.

Outcome of the Case

The Court ordered DiCecco to pay $899,811 in retroactive child support, effective immediately – an award spanning 22 years. This significant sum reflects Ontario’s dedication to child support as an inviolable right, not a negotiable privilege subject to a payor’s whims.

Key Lessons for Practitioners

1. Extended Retroactivity Limits: Egregious deception can justify awards stretching back decades, far exceeding Colucci’s three-year benchmark.
2. Creative Income Imputation: Net worth analysis offers a viable fallback when disclosure is inadequate, bridging evidentiary gaps.
3. Impact of Conduct: Severe payor misconduct can amplify awards, overriding delays or procedural objections.
4. Guidelines Resilience: Bad-faith payors are unlikely to benefit from discretionary reductions, ensuring full table amounts prevail.
5. Significance of Notice: Even informal communications (e.g., a 2009 conversation) can anchor retroactivity, broadening the timeline for claims.

Practical Strategies for Family Law Lawyers

• Comprehensive Documentation: Record all support-related interactions meticulously – Jansen’s 2009 informal request for increased child support proved pivotal.
• Investigative Diligence: Probe beyond tax returns, leveraging property deeds, loan applications, or forensic audits to reveal discrepancies.
• Technological Tools: Employ bank disclosure motions, asset-tracing software, or financial analytics to uncover hidden wealth systematically.
• Contextualizing Delay: Frame delays as products of intimidation, health issues, or financial barriers, aligning with Jansen’s empathetic stance.
• Net Worth Calculations: Present clear, step-by-step analyses—e.g., “Net worth increased by $2 million; $500,000 from legitimate sources; $1.5 million implies $150,000/year unreported income.”
• Precedent Synergy: Combine Jansen with Colucci and Michel to argue for expansive retroactivity and robust imputation of income.
• Client Preparation: Warn of protracted battles in retroactive cases, setting realistic expectations for time and cost.

Broader Implications for Family Law

Jansen v. DiCecco may catalyze a surge in retroactive claims, particularly where non-disclosure is suspected, empowering recipients to revisit historical injustices. Payors might respond with appeals, contesting the net worth methodology or the scope of retroactivity – potentially prompting an Ontario Court of Appeal review to refine these standards. For recipients, the decision strengthens their bargaining position, though risks such as prolonged litigation or payor insolvency remain. The case also amplifies the judiciary’s message: transparency is non-negotiable, and children’s rights will be firmly protected.

Conclusion

Jansen v. DiCecco stands as a precedent, arming Ontario family law practitioners with a formidable tool to combat financial deceit and secure retroactive support. For payors, it is a sobering reminder of the steep costs of non-disclosure. For lawyers, it offers a rich toolkit—bolstered by judicial clarity, strategic guidance, and equitable principles—to advocate effectively for children’s entitlements, regardless of how much time has passed. This decision reaffirms that in the pursuit of justice, the passage of years does not diminish a child’s right to support.

Let’s continue to elevate the practice of family law in Ontario!

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Disclaimer: The information provided in this blog post is intended for general informational purposes only and should not be considered as legal advice. Consult with a qualified family law attorney for advice regarding your specific situation. Goldhart Mediation & Arbitration is not responsible for any actions taken based on the information presented in this blog.