MAINTENANCE AND SUPPORT – Baby help – Modified circumstances – Discount or rescission of arrears

Father’s appeal against an Ontario Court of Appeal ruling that overturned a plaintiff’s decision reducing the father’s livelihood arrears. Prior to their divorce in 1996, the parties had been married for 13 years. The mother was granted sole custody of the two children of the parties. The father had to pay maintenance costs of $ 115 per week per child. In 1998 the father applied for a reduction in his child support obligations, but did not provide any financial information to justify his application. The father did not pay any voluntary child support between 1998 and 2016. The father’s maintenance obligation ended in 2012 when the children were no longer children of the marriage. In 2016, the father requested that his maintenance obligation be retrospectively reduced and the $ 170,000 arrears waived. The petitioner has retrospectively reduced the assistance, effectively reducing the arrears to $ 41,642. The appeals court overturned the decision and ordered the father to pay the full amount of the arrears.

HELD: Appeal dismissed. The framework for applications for a subsequent reduction in child maintenance, based on the basic principles of the Federal Child Maintenance Guidelines and DBS versus SRG, required that the payer first had to prove a past change in circumstances. Once a material change in circumstances was identified, a retrospective reduction in child support was suspected up to the date on which the payer effectively notified the beneficiary, up to three years prior to the formal notification of the change request. Effective communication required clear communication of the change in circumstances, accompanied by disclosure of available documentation to demonstrate the change and allow the receiving parent to make a meaningful assessment of the situation. If there was no effective termination, the maintenance should be deferred until the date of formal termination or a later date on which the payer delayed full disclosure. The court reserved the discretion to deviate from the alleged retroactive date if the outcome were otherwise unfair. If the payer requested the cancellation of payment arrears due to current insolvency, the payer’s ongoing financial capacity was the only decisive factor. The payer had to provide evidence of sufficient reliability to enable an assessment of his current and future financial situation and had to overcome the presumption against the clearance of the arrears. The presumption would only be rebutted if the payer found that even with a flexible payment plan, he was and was not able to pay arrears. The standard for rebuttaling the presumption was strict. The entry into force of the guidelines changed circumstances, but did not remove the need to provide evidence of the father’s income. The father’s poor communication, inadequate evidence, and inadequate disclosure were fatal to his request. It was not enough for the father to inform the mother without further action that his income had fallen. Since the father did not provide sufficient evidence to enable the mother to make a meaningful assessment of the situation, his application remained without notice. Since the father had not given an effective notice of termination by the end of the arrears in 2012, he was not entitled to a retroactive reduction in his maintenance obligation. The father’s behavior showed malicious efforts to evade the enforcement of a court order.

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

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