Child Support

Supreme Court of Canada Offers Clarity on Reducing Child Support Arrears

Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

Supreme Court of Canada Offers Clarity on Reducing Child Support Arrears

Should a deadbeat dad be absolved of paying $170,000 in child support arrears?  If so, under what circumstances?

Those were the basic questions before the Supreme Court of Canada in a landmark ruling released just the other day, in a case called Colucci v. Colucci.  They set the stage for the Court’s reflections on the foundational legal principles governing when and whether a support-paying parent should be eligible to have his or her support arrears adjusted or eliminated retroactively.

The parents were married for about 13 years, and had two daughters together.  When the couple split in 1996, custody of both girls went to the mother; the father was ordered to pay weekly child support of $115 per child, per week.

In 1998 – and over the objections of the mother – the father asked the court to reduce his child support obligations, but offered no financial disclosure at the time to support that request. The court refused. For the next 16 years, he made virtually no voluntary child support payments.  Indeed, he went to the effort of hiding his true income, and moved twice to different countries without telling the mother.  Importantly, he had no involvement in the children’s lives, and his whereabouts were unknown.

By 2012, when his legal obligation to pay child support was technically at an end, he owed the mother a hefty $170,000 in support arrears.

What the father did next, was apply to the court to have the entirety of that $170,000 in arrears cancelled – that is, to have the debt to the mother forgiven in full.  He relied on section 17 of the Divorce Act, which in some circumstances allows a support-paying parent to decrease a child support order retroactively.  He claimed that in his case it could be applied to adjust his past support obligations, to bring them in line with the Federal Child Support Guidelines (which came into force back in 1997 when he was still on the hook for – but not actually paying – child support).  He said he’d had a reduction in income during the relevant 16-year period, even though back then he failed to tell the mother.

At trial, the court agreed to reduce the $170,000 down to about $42,000.  The Ontario Court of Appeal restored the amount of the father’s support debt back to $170,000.  He appealed to the Supreme Court of Canada.

Against that factual background, the Supreme Court of Canada took the opportunity to establish a detailed “framework” within which future Family Courts should assess bids by support-paying parents to retroactively decrease child support.

Included in that framework was the Court’s observation that the entire child support system, including variations under section 17 of the Divorce Act, depends on “adequate, accurate and timely financial disclosure,” and that the duty to disclose financial information is the most basic obligation in family law.  Without it, the parties “cannot stand on the equal footing required to make informed decisions and resolve child support disputes outside of court”, and the courts can “in no way reward those who improperly withhold, hide or misrepresent information they ought to have shared.”

When reviewing whether to vary support obligations, the courts must also take into account any fluctuations in a paying parent’s income, but cannot allow him or her to be “better off from a legal standpoint if they do not pay the child support the law says they owe. Nor should payors receive any sort of benefit or advantage from failing to disclose their real financial situation or providing disclosure on the eve of the hearing.”

The Court also said that even parents in the father’s position, who have managed to establish a past drop in income, are not automatically entitled to have their support obligations reduced retroactively.  Instead, the payment and enforcement of child support is the “rule”; conversely the cancellation of a child support debt is always a remedy of last resort, and should be used in only exceptional cases.  The reviewing court is entitled to use its discretion, based on the circumstances.

Applying that framework to the facts of the case, the Court observed that the father had waited 18 years before asking to have his support duty changed, and made “few, if any” voluntary payments in all that time.  Meanwhile, in light of his unwillingness to support his own children over the years, they had suffered hardship.  The Court concluded his “conduct shows bad faith efforts to evade the enforcement of a court order.”

On the evidence, the Court confirmed that the father had failed to provide sufficient evidence of his financial circumstances, to the point they would justify cancelling the $170,000 he owed in support.  Nor had he showed that he could not pay now, or in the future, even if he was offered a flexible payment plan.

The Court ultimately dismissed the father’s appeal, which left him obligated to pay the mother the full child support that he owed, to the tune of $170,000.

For the full text of the decision, see:

Colucci v. Colucci, 2021 SCC 24 

 

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About the author

Russell Alexander

Russell Alexander is the founder of Russell Alexander Collaborative Family Lawyers and is the firm’s senior partner. At Russell Alexander, our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues, including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. We have locations in Toronto, Markham, Whitby (Brooklin), Oshawa, Concord, Lindsay, and Peterborough.

For more information, visit our website, or you can call us at: 905-655-6335.