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Nov 2021

Canada's Supreme Court Rules on Retroactive Adjustments to Child Support

By James Peluch

The Supreme Court of Canada (S.C.C.) has recently ruled on a common problem in the area of family law; namely, dealing with requests for a retroactive decrease in child support by a support payor whose circumstances have changed since the original Order or Agreement was created.  The S.C.C. in Colucci v. Colucci upheld the Ontario Court of Appeal’s decision to uphold the child payor/father’s obligation of $170,000 in unpaid child support for two children over a span of 14 years.  The father had sought to rescind or reduce his arrears to a lower amount; but, a unanimous S.C.C. instead ruled that the payor was the author of his own misfortune by delaying his financial evidence and then only providing a very thin, unsatisfactory basis for the Court to grant him any discretionary relief due to the changes in his personal situation.  The Court’s analysis will have ramifications across the country where these issues exist.

The background in Colucci v. Colucci was relatively straightforward.  After a thirteen-year marriage ended in divorce in 1996, the mother was granted sole custody of the two daughters from the marriage while the father had to pay $115 per week per child.  For many years between 1998 and 2012 when his obligations formally ended, the father was largely absent from the lives of the children, and his whereabouts were mostly unknown.  His arrears - with accumulated interest - reached $170,000, and in 2016, he decided to make a second attempt to adjust his child support after an earlier attempt in 1998 had failed due to the father’s lack of evidence.  Although his evidence in 2016 was only slightly more informative than before, the Judge at Motions Court reduced his arrears down to $41,642, so that the father’s reduced income could align with the Child Support Guidelines, and his apparent changed circumstances.  The father had claimed his taxable income had been falling since 1997, and invoked section 17 of the federal Divorce Act to try and address his arrears based on his diminished ability to pay.  The S.C.C., on the other hand, cited the father’s deficient communication to the mother, his inadequate evidence about where he was living and what he was doing for all those years that support was accruing, and in general criticized his poor financial disclosure in deciding that reporting his drops in income alone were simply not enough.  The concept of providing sufficient, reliable evidence rested with the payor, but he did not act in a responsible manner to provide the mother with necessary information in a timely manner for her to meaningfully consider the extent of her options.  The father also made very few voluntary payments of support and displayed no real willingness to support his children as required by law.  In reaching its decision, the S.C.C. chastised the father’s conduct for waiting four years between 2012 and 2016 before taking steps to address his arrears, and for refusing to be otherwise proactive in providing the financial disclosure required to properly deal with such a case.  The S.C.C. held that the Motions Judge had erred in granting the father a retroactive decrease of support back to the date of his decreased income level.  The overall decision was a discretionary one based on three interests previously defined by the SCC in its earlier decision in D.B.S v. S.R.G as follows: 1) the child’s interest in receiving the appropriate amount of support to which they are entitled, 2) the interest of the parties and the child in having certainty and predictability, and 3) the need for flexibility to ensure a just result in light of fluctuations in the reported income of the payor parent.

Had the payor been more co-operative and forthcoming with his disclosure, the Court may have given the father some leeway for up to three years before the date he gave formal notice to the mother regarding his proposed variation.  The decrease, potentially going back to the date of effective notice prior to formal notice, was lost given the lack of full and frank disclosure that could have helped substantiate the change in the payor’s circumstances.  The payor, in short, did not meet the onus that rested with him at the outset of the case and accordingly, the Court dismissed his Appeal since it had little sympathy for him while holding him to the full amount of his accrued arrears.


**This article is intended only to inform and educate. It is not legal advice. Be sure to contact a lawyer to obtain legal advice on any specific matter.