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MAINTENANCE AND SUPPORT - Child support Orders - Arrears of maintenance

Thursday, August 15, 2019 @ 6:28 AM  

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Appeal by the wife from a 2018 decision retroactively reducing the husband’s child support obligation pursuant to a 1996 child support order. The 1996 divorce judgment required the husband to pay child support of $115 per week per child, so long as the two daughters remained children of the marriage. By 2012, both daughters had completed post-secondary education and were employed. The husband fell into substantial arrears of child support. Although his taxable income was in decline from 1997 onwards, he did not commence a motion to change the order with respect to his child support obligations until 2016. As of the date of the motion to change, the arrears with interest amounted to more over $170,000. From 2001 to 2016, there were many years in which no support payments were made while the husband was out of the country. The motion judge determined that the husband was entitled as of right to a variation and a calculation of support based on table amounts and his drop in income from employment. Imputing income to him at minimum wage or at his actual earned income, and following the table amounts of the Guidelines, the motion judge recalculated the arrears and reduced them to $41,642.

HELD:  Appeal allowed. No reduction to the arrears was awarded. The motion judge erred by concluding that the husband was entitled as of right to a retroactive reduction extending years into the past without any consideration of the principles relating to retroactive variation set out in DBS and Gray, including the application of the three-year rule. While the motion judge correctly determined that the husband met the threshold for a retroactive variation of the support order and was delinquent, he erred by failing to go on to consider whether and to what extent a variation order should be made in light of the DBS factors as adapted by this court in Gray. Applying the DBS factors as adapted in Gray, the husband was not entitled to a retroactive variation order more than three years from the date he commenced his motion. The respondent was, at best, a recalcitrant payor who over 23 years made few support payments. Any alleged hardship arising from the substantial arrears that he permitted to accumulate resulted from his own blameworthy conduct. He had not discharged his onus to explain his significant failure to make support payments and his extraordinary delay in proceeding with his application to vary, nor had he produced reliable evidence of his inability to pay while arrears were accumulating. During these proceedings, the husband also continued to be in breach of the ongoing requirement to make full documentary and financial disclosure.

Colucci v. Colucci, [2019] O.J. No. 3528, Ontario Court of Appeal, D.M. Brown, L.B. Roberts and B. Zarnett JJ.A., July 4, 2019. Digest No. TLD-August12019009