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MAINTENANCE AND SUPPORT - Child support - Practice and procedure - Courts - Jurisdiction - Orders - Variation or amendment of orders - Reduction or rescission of arrears

Thursday, December 07, 2017 @ 8:28 AM  

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Appeal by the father from a decision dismissing his application to vary a child support order on the basis that the Court had no jurisdiction under s. 17(1) of the Divorce Act (Act) to vary or discharge child support arrears where the application was brought after children were no longer children of the marriage. The appellant had accrued over $175,000 in arrears by the time both children were over 18 years old and were no longer children of the marriage. He brought a motion to change the order retroactively and to have his arrears rescinded on the ground that there had been a change in circumstances due to a decline in income.

HELD: Appeal allowed. The motion judge erred by dismissing the father’s application solely on the ground that the Court did not have jurisdiction to entertain it. Given the different wording and purpose of s. 17(1) of the Act, the test for jurisdiction to vary differed from the test for jurisdiction to make an original support order under s. 15.1(1). Section 17(1) did not, by its language, limit the jurisdiction of the Court to vary a child support order to the time period when the children were still children of the marriage. Allowing a court to vary an existing order after the children ceased to be children of the marriage was consistent with the principles of child support, which included the following: the amount of child support depended upon the income of the parents; as the parents’ income changed, so too did the obligation to pay support; and child support orders should, as far as possible, foster certainty, predictability and finality. If a court had jurisdiction to consider a recipient parent’s request for a retroactive increase in child support where the payor’s income increased, there should also be jurisdiction to consider a payor parent’s request for a reduction where his or her income declined.

Colucci v. Colucci, [2017] O.J. No. 6146, Ontario Court of Appeal, R.J. Sharpe, R.A. Blair and G.J. Epstein JJ.A., November 22, 2017. Digest No. TLD-December42017008