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MAINTENANCE AND SUPPORT - Child support - Changed circumstances - Reduction or rescission of arrears

Friday, June 04, 2021 @ 2:25 PM  


Appeal by the father from a judgment of the Ontario Court of Appeal that set aside a decision of a motion judge that reduced the father’s child support arrears. The parties were married for 13 years prior to their divorce in 1996. The mother was granted sole custody of the parties’ two children. The father was required to pay $115 per week per child in child support. In 1998, the father requested a reduction in his child support obligations but provided no financial disclosure to support his request. Between 1998 and 2016, the father made no voluntary child support payments. The father’s child support obligations ended in 2012 when the children were no longer children of the marriage. In 2016, the father applied to retroactively reduce his child support obligation and rescind the arrears, which totalled $170,000. The motion judge retroactively decreased support, effectively reducing the arrears to $41,642. The Court of Appeal overturned the decision and ordered that the father pay the full amount of arrears.

HELD: Appeal dismissed. The framework for applications to retroactively decrease child support, based on the foundational principles in the Federal Child Support Guidelines and D.B.S. v. S.R.G., required the payor to first show a past change in circumstances. Once a material change in circumstances was established, a presumption arose in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. Effective notice required clear communication of the change in circumstances, accompanied by the disclosure of available documentation to substantiate the change and allow the recipient parent to meaningfully assess the situation. Where no effective notice was given, child support was to be varied back to the date of formal notice or a later date where the payor had delayed making complete disclosure. The court retained the discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. Where the payor sought a rescission of arrears based on current inability to pay, the only relevant factor was the payor’s ongoing financial capacity. The payor had to provide sufficient reliable evidence to enable an assessment of their current and prospective financial circumstances and had to overcome the presumption against rescinding arrears. The presumption would only be rebutted where the payor established that even with a flexible payment plan, they could not and would not ever be able to pay arrears. The standard to rebut the presumption was stringent. The coming into force of the Guidelines constituted a change in circumstances but did not obviate the need for evidence of the father’s earnings. The father’s deficient communication, inadequate evidence and insufficient disclosure were fatal to his application. It was not sufficient for the father to advise the mother his income had decreased without taking any further steps. Since the father did not provide reasonable proof to allow the mother to meaningfully assess the situation, his request fell short of effective notice. As the father gave no effective notice before arrears stopped accumulating in 2012, he was not entitled to any retroactive decrease in his child support obligation. The father’s conduct demonstrated bad faith efforts to evade the enforcement of a court order.

Colucci v. Colucci, [2021] S.C.J. No. 24, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., June 4, 2021. Digest No. TLD-May312021011-SCC