The 2021 Supreme Court of Canada decision in Colucci v Colucci, 2021 SCC 24 provides clarity on how courts should address applications for retroactive adjustments to child support as well as applications for the rescission of child support arrears.
The background of the matter was such that Mr. Colucci and Mrs. Colucci were married in 1983 and had two daughters together. In 1996 they divorced. Mrs. Colucci was granted sole custody of both daughters and Mr. Colucci was ordered to pay child support on a weekly basis. 16 years passed by and Mr. Colucci failed to make any voluntary child support payments and never disclosed his income. He was absent from his daughters lives and his whereabouts were unknown. By the time arrears stopped accumulating in 2012, he owed Mrs. Colucci $170,000 in unpaid child support arrears.
In 2016, Mr. Colucci applied to both retroactively reduce child support as well as to rescind the child support arrears approximating $170,000. The Colucci’s case made it to the Supreme Court of Canada where the court took the opportunity to further develop the framework for dealing with applications to retroactively adjust child support and rescind child support arrears.
The framework for applications to retroactively decrease child support is based on the Federal Child Support Guidelines and the D.B.S. factors. There is a presumption that once a payor shows a material change in circumstances, child support should be retroactively varied to account for it. The presumptive date of retroactivity is the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. Colucci clarified that effective notice is more than just informing the recipient of a change of circumstances, it is about providing disclosure of available documentation to substantiate the change and allowing the recipient to meaningfully assess the situation. Where no effective notice is given, the court retains the discretion to depart from the presumptive date of retroactivity if the results would otherwise be unfair.
As Mr. Colucci’ gave no effective notice before arrears stopped accumulating in 2012, he was not entitled to any retroactive decrease in his child support obligations. Further, his insufficient communication, evidence, and disclosure fell short of effective notice in general. His conduct showed bad faith efforts to evade enforcement of a court order. The court stressed the fact that payors should not be rewarded for breaching disclosure obligations in the Guidelines, the rules of court, and other legislation.
The framework for applications to rescind child support arrears involves looking at the payor’s ongoing financial capacity. There is a strong presumption against rescinding arrears. The presumption can usually only be rebutted if the payor can establish that even with a flexible payment plan, they would never be able to pay the arears. Like with applications for retroactive adjustments to child support, Colucci reinforced the importance of full and frank disclosure. The payor is obligated to provide evidence of their financial situation so that their current and future financial circumstances can be assessed. Mr. Colucci failed to carry out this obligation and therefore was denied any recission in his child support arrears.
Colucci reinforces the importance of full and frank disclosure between payor and recipient when it comes to child support obligations. The informational asymmetry between the parties demands it. Further, the ultimate goal of child support is ensuring the child receives everything that they are owed. Child support is the right of the child and parents have a legal obligation to pay child support. This means that a passage of time is not an excuse not to pay child support. Trying to wait out child support obligations has now become a more problematic approach to take in child support disputes and the court may conclude blameworthy conduct was engage in on the part of the payor which the court will consider when using their discretion to retroactively adjust child support.
By J. Quinn Miller