In the recent Colucci v. Colucci decision, the Supreme Court of Canada has unanimously ruled against an Ontario father who sought to reduce some or all of his $170,000 child support debt as a result of a financial inability to pay1. In doing so, they established a framework for courts to follow going forward for when a parent seeks to retroactively decrease child support to reflect a change in income. They also established some considerations for courts in deciding whether to allow a payor parent to cancel outstanding child support arrears.
The parties to the Colucci case ended their 13-year marriage with a divorce in 1996. At this point the mother was given sole custody of their two children and the father was ordered to make child support payments of $115 per week per child.
Over the next 16 years until 2012 when his obligation to make payments ended, the father had amassed almost $170,000 in unpaid child support debt. In 2016, he submitted an application to retroactively decrease child support to reflect a reduction in his income. In a 2018 decision, the trial judge ruled in his favor and reduced the amount of unpaid child support owed to $41,642. In response, the mother appealed, and the Court of Appeal overturned the trial judge. The father was again ordered to pay the original amount of $170,000. He appealed to the Supreme Court of Canada.
The Supreme Court of Canada noted the long-established principles of child support law in Canada: that children have the right to a fair standard of support, and that parents have an obligation to support their children financially both before and after separation2.
The previous landmark case was D.B.S. v. S.R.G, but that case involved a retroactive increase in support. This case involved a retroactive decrease in child support. The court drew on D.B.S. v. S.R.G3, which defined three interests that needed to be balanced in deciding retroactive variation of payments. These were the child’s interest in receiving the appropriate amount of support to which they are entitled; the interest of the parents and the child in certainty and predictability; and the need for flexibility to ensure a fair result in light of fluctuations in payor income.
The Court also emphasized that there is a need for full, timely, and honest disclosure of the payor’s income. Their ruling made it such that a payor cannot purposely wait out their obligations while failing to communicate, negotiate, or seek change, as the father in Colluci did for 18 years, in the hopes that the courts will later relieve those debts.
The framework that was decided on grants future courts great discretion in ruling whether parents who had proven a decrease in income could retroactively decrease child support obligations. This decision is to be made on a case-by-case basis, considering all the above factors.
The framework that they established in deciding whether to cancel outstanding child support debt was that it should be done as a last resort and only in exceptional cases. In addition to decreased financial income, the court is to also consider creative payment options such as temporary stoppage and period payments. The clear message to payor parents is that they cannot delay in applying to reduce their child support obligations if their income has decrease.
Following these frameworks, the Supreme Court upheld the ruling of the Ontario Court of Appeal and required the father to pay the full $170,000 in overdue in child support payments.
Parents can apply to have their child support payments varied. This applies both to payors looking to decrease their payments and debts, and to recipients seeking to increase the amount of payment that they’re receiving. If a payor’s financial circumstances have changed, a family law lawyer can help ensure that the appropriate support is being paid.
Lawyers at BOYNECLARKE LLP can help you navigate the legal issues of family law. If you are seeking legal advice, please call 902-469-9500 to schedule your free 30-minute consultation with a member of our Family Law team.
2 Rayner, E. (2021, June 4). Supreme Court establishes framework for retroactive decreases in child support. Canadian Lawyer Magazine. https://www.canadianlawyermag.com/practice-areas/family/supreme-court-establishes-framework-for-retroactive-decreases-in-child-support/356851