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SCC’s guide on retroactive support variations: Duty to disclose and adopting framework

Monday, July 05, 2021 @ 10:45 AM | By Ron Shulman

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Ron Shulman
In a prior article (see below for link) I discussed the issue of how courts should deal with long-unpaid child support, especially large sums of it and how they can be contentious.

In the recent landmark decision in Colucci v. Colucci 2021 SCC 24, there are two other points the Supreme Court of Canada has taken to clarify how family courts should approach bids by parents to reduce or cancel their outstanding child support debts.

On the duty to disclose

In this context the Supreme Court of Canada underscored the key principle that financial disclosure is the “linchpin” holding the child support regime together. Any framework for decreasing child support must entrench the notion that the payor has a duty to provide accurate, timely and fulsome disclosure, especially since child support is tied to the payor’s income. Payors should simply not benefit from their failure to disclose.

Nor is it logical or fair to make the recipient solely responsible for policing the payor’s ongoing compliance, the court added. This is why the payor bears the onus to establish the alleged drop in his or her income during the retroactivity period.

Adopting the framework here

Applying this framework to the facts, the Supreme Court ruled that the father had no understandable reason for his 16-year delay in giving notice to the mother. During that time he made no voluntary payments, nor any good faith efforts to comply with the support order. Instead, he preferred his own interests over those of his children. Any hardship he now complained of must be tempered by this reality.

Also fatal to his application was his “deficient communication, inadequate evidence, and insufficient disclosure” around his alleged drop in income. The father had failed to prove any changed circumstances which would qualify for giving effective notice to the mother, so the presumption as to the retroactive date went untriggered.

To the contrary, he had cut off communication, absconded to other countries, and left the mother to shoulder the financial burden of raising the children on her own.

Especially in light of the D.B.S. v. S.R.G. 2006 SCC 37 (DBS) factor of “payor conduct,” the father’s actions clearly showed only bad faith efforts to evade the enforcement of the support order. The Supreme Court concluded that to now grant him a retroactive decrease would give tacit approval of his misconduct, contrary to the children’s best interests. (Note: The Supreme Court of Canada confirmed in DBS that there must be a balancing of three interests: 1) the child’s interest in receiving their entitlement to appropriate support amounts; 2) the child’s and the parents’ interests in certainty and predictability; and 3) the need for flexibility, to ensure a just result in light of fluctuations in the paying parent’s income.)

As for the father’s request to rescind all or part of his arrears based on his current and ongoing inability to pay, a different analysis was required because that remedy involved wiping out a legally recognized debt, originally made on a correct basis regarding his income. His debt accumulated simply because he failed to pay as ordered. In law, rescission on these grounds is only appropriate in exceptional circumstances.

Once again, the Supreme Court held the father’s demonstrated failure to provide “sufficient reliable evidence” of his financial circumstances was fatal to his ability to succeed. He had simply not established that he was unable to pay now — or in the future — even with a flexible payment plan.

The Supreme Court accordingly dismissed all of the father’s grounds of appeal, leaving him obliged to still pay the full $170,000 in unpaid child support.

The takeaway

From the perspective of parents and their lawyers, the Supreme Court of Canada decision in Colucci v. Colucci offers a clear, step-by-step “algorithm” for dealing with both applications to retroactively vary child support and requests to rescind unpaid arrears. It does so while reaffirming established principles, including the concept that the entire child support system hinges on full, accurate and timely financial disclosure.

Practically, the decision also affirms that a parent who tries to “wait it out” — by wholly avoiding their disclosure duty and child support obligations for years or decades — will not succeed in having their arrears rescinded. As was succinctly observed by the trial judge in the case, the payor’s “success at getting to the age of 62 without paying a dollar voluntarily … should not be rewarded” (Colucci v. Colucci 2018 ONSC 4868, at para. 4).

This is part two of a two-part series. Part one: SCC’s ultimate guide on retroactive support variations and rescinding arrears.

Ron Shulman, a certified specialist in family law, is the founder and managing partner of Shulman & Partners LLP, an exclusive family law practice focused on the resolution of conflicts and ensuring clients are prepared to confidently move on with their lives.  

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