The Supreme Court of Canada recently issued a decision in the case of Colucci vs. Colucci, 2021 CSC 24, in a fierce battle over the issue of retroactive child support.
In Colucci, the father sought to retroactively reduce child support and write off his child support arrears of approximately $ 170,000. The parties divorced in 1996 and an order was made requiring the father to pay child support for his two daughters in the amount of $ 230 per week. The father’s child support obligations ended in 2012. However, from 1998 to 2016, the father did not make any voluntary child support payments, accumulating more than a decade of child support arrears. children’s food. He had applied in 1998 to reduce his child support obligations on the basis of a decrease in his income, but had provided no evidence to the same, and no agreement to reduce the support had been reached. . During the period when the arrears were building up, the father was absent from the children’s lives and it was not known where he was.
In 2016, the father’s initial petition to the Ontario Supreme Court judge was granted and his child support arrears were retroactively reduced to $ 41,462. The father had provided little financial information to substantiate his claim that he needed a reduction. However, the motions judge found that the reduction was justified, in order to bring child support into line with the
Federal Child Support Guidelines and to reflect the decrease in the father’s income.
On appeal to the Ontario Court of Appeal, the motions judge’s decision was overturned and the father was ordered to pay the full amount of the arrears.
The father then appealed the decision to the Supreme Court of Canada. The Supreme Court of Canada dismissed his appeal and reviewed retroactive child support law in detail.
Retroactive child support test
The leading cause often cited in retroactive child support cases is an earlier Supreme Court of Canada case, DBS v. SRG, 2006 SCC 37, which set out four factors to consider in a retroactive child support claim:
- the recipient’s delay in claiming retroactive support;
- the conduct of the payer;
- the child’s situation; and
- difficulties caused by retroactive allocation.
DBS also considered the issue of “effective notice” and concluded that the retroactive date of any retroactive child support payments should generally be the date of effective notice. Effective notice in the context of child support simply requires that the recipient bring up the subject of an increase in child support with the payor. The Court also noted that recipients should be encouraged to move discussions forward after giving effective notice. To this end, the Court concluded that retroactive sentences should generally not extend beyond three years before the date of formal notice. This is called the “three-year rule”, although it is only a presumption.
The court retains the discretion to depart from the date of deemed retroactivity where the result would otherwise be unfair in the circumstances. For example, in cases where there has been improper conduct on the part of the paying parent, such as failure or refusal to provide financial information, the date of the actual notice is irrelevant, and instead from this, the retroactive date is adjusted to align with the date of the substantial increase in income, despite the general rule of three years. This was the case in
Colucci, as well as another recent Supreme Court of Canada case, Michel c. Graydon, 2020 CSC 24, who also considered the issue of the retroactive date. In Michael, the Court clarified the principles of DBS, and has now clearly established that a receiving parent can request a retroactive variation of an existing child support order even after the child has become an adult. Prior to Michael, the provincial courts of first instance and appeal interpreted DBS as defending the principle that once the child is no longer a “child of the marriage” (essentially an independent adult), a parent no longer has standing to request or vary retroactive child support.
Michael distinguishes between requests for a retroactive variation of child support, in which case the child becoming an adult would not preclude the request, and requests for an original child support order under s. 15.1 of Divorce Law, which would be banned once the child reached adulthood.
The Court in Colucci also noted that in cases involving a modification of child support and cancellation of arrears, three interests must be balanced to achieve a fair result:
- the best interests of the child in receiving the appropriate amount of support to which they are entitled;
- the interests of the parties and of the child in certainty and predictability; and
- the need for flexibility to ensure a fair result given fluctuations in the payor’s income.
The primary concern is the best interests of the child for a fair standard of support commensurate with income, and all other rules and principles must comply with this. In addition, the need for full and frank disclosure of the payor’s income is essential in determining fair support. Since the paying parent is in control of this information, prompt and complete disclosure is essential.
Child support arrears cancellation test
Considerations for a reduction or cancellation of child support arrears are different from those for a retroactive variation of child support. In cancellation cases, the prior support order or agreement is based on the payor’s actual income and therefore accurately reflects the amount of support that should have been paid. Thus, the test for a reduction or cancellation of child support is based on the payor’s current inability to pay, or in other words, financial hardship. The only relevant factor is the paying parent’s continued ability to pay, which again requires full and frank disclosure of the payor’s financial position.
The presumption is that the payer must pay the arrears, and this presumption is only rebutted if the paying parent establishes on a balance of probabilities that even with a flexible payment plan, the payer cannot and never will be able to. pay the arrears. The interests of the recipient and the child in certainty and predictability are paramount, as the payor has breached a court order or agreement without any excuse for non-payment of support when due. Cancellation of arrears is a last resort and is only granted in exceptional cases, and courts must first determine whether the payer’s financial hardship can be alleviated by ordering a temporary suspension, periodic payments or other creative payment options.
SCC decision in Colucci
The Supreme Court of Canada ultimately dismissed the father’s appeal, requiring him to pay the full retroactive child support amount of $ 170,000. In doing so, the Court concluded that the father had engaged in reprehensible behavior by failing to provide the mother with any proof of his reduction in income in 1998, since he had provided no proof of it. In addition, by not making any voluntary child support payments from 1998 to 2016, his conduct was reprehensible and demonstrated bad faith efforts to evade a court order. Further, by providing the Motions Judge with insufficient financial disclosure of his earnings during the years the child support arrears accumulated, as well as his current financial situation, the father’s petition was doomed to failure. . The inadequate financial disclosure was fatal at the father’s request as he had failed to meet his onus of proving that he had suffered hardship and was unable to pay the arrears now or in the future.
The two Michael and Colucci are examples of where the reprehensible conduct of a paying parent of “waiting in the weeds” – trying to wait for their child support obligations to run out until their children are no longer the children of the child. marriage – turned against him. The paying parent has a duty to provide full and timely financial disclosure, and failure to do so may result in the court refusing to retroactively vary a child support order or agreement. Paying parents who avoid their obligations to pay child support are treated the same as debtors in civil cases who avoid debt payment, and it is an uphill battle to change child support orders for child support and / or reduce or cancel child support arrears. Parties are encouraged to take active steps to meet their child support obligations. If you have any questions about retroactive or future child support, please contact one of our lawyers in the Family Law Practice Group.
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This article is intended to be an overview and is for informational purposes only.