Supreme Courtroom Of Canada Case On Retroactive Youngster Help: Colucci V. Colucci – Household and Matrimonial

The Supreme Court of Canada recently ruled in a highly competitive battle over the issue of retrospective child support in the Colucci v Colucci case, SCC 24 2021.

background

In Colucci, the father tried to cut child support retrospectively and cut his maintenance arrears of around $ 170,000. The parties divorced in 1996 and asked the father to pay child support of $ 230 per week for his two daughters. The father’s maintenance obligations ended in 2012. However, from 1998 to 2016 the father had made no voluntary maintenance payments, which resulted in maintenance arrears for over a decade. He applied for a reduction in maintenance obligations due to a drop in income in 1998, but failed to provide evidence and no agreement was reached on a reduction in child support. During the arrears, the father was absent from the children’s lives and his whereabouts were unknown.

In 2016, the father’s first petition before the Ontario Supreme Court Justice was granted and his child benefit arrears were retrospectively reduced to $ 41,462. The father had barely provided financial information to back up his claim that he needed a cut. However, the claimant judge found that the cut was justified in order to bring child support in line with federal child benefit guidelines and to reflect the decline in the father’s income.

On appeal in the Ontario Court of Appeals, the complainant’s decision was overturned and the father was sentenced to pay the full amount of the arrears.

The father then appealed to the Supreme Court of Canada. The Canadian Supreme Court dismissed his appeal and delved into the retrospective child support law.

Examination of retroactive child maintenance

The most common case cited in retrospective child support cases is a previous case by the Supreme Court of Canada, DBS v SRG, 2006 SCC 37, which set out four factors to consider when making a retrospective child support claim:

1. the recipient’s delay in requesting retrospective assistance;
2. the behavior of the payer;
3. the child’s circumstances; and
4. Hardship through a retroactive grant.

DBS also looked at the “effective termination” issue, stating that the date of retroactive child support retrospective should generally be the date of effective termination. An effective termination in the context of child maintenance only requires that the recipient discusses the increase in child maintenance with the payer. We also found that beneficiaries should be encouraged to move discussions forward after effective notification. To this end, the Court concluded that retrospective arbitral awards should, as a rule, not be valid for more than three years prior to the date of the warning. This is known as the “three year rule,” although it’s just a guess.

The court is free to deviate from the date of the presumption of retroactive effect if the result would otherwise be unfair under the circumstances. For example, in cases where there was culpable behavior on the part of the paying parent, such as B. failure or refusal to provide financial disclosure, the effective notification date is not relevant and instead the retroactive date is adjusted to reflect the significant income increase, despite the general three-year rule. This was the case in Colucci, as was another recent case by the Supreme Court of Canada, Michel v. Graydon, SCC 24 2020, which also considered the date of retroactive effect. In the Michel judgment, the Court of Justice clarified the principles of the DBS and now clearly stated that a recipient parent can apply for a subsequent change to an existing child maintenance order, even if the child becomes an adult. Before Michel, provincial and appellate courts had interpreted DBS as representing the principle that once the child was no longer a “child of marriage” (essentially an independent adult), one parent no longer had the right to submit an application provide or change child benefit retrospectively. Michel made a distinction between requests for subsequent adjustment of child support, in which the adult child would not prohibit the request, and requests for an original child support order according to s.15.1 of the Divorce Act, which expires as soon as the child reaches adulthood.

The Colucci Court also found that in cases involving changing child support and clearing arrears, three interests must be balanced in order to achieve a fair outcome:

1. the child’s interest in the appropriate assistance to which they are entitled;
2. the parties’ and child’s interest in safety and predictability; and
3. the need for flexibility to ensure a fair outcome in the face of fluctuations in the payer’s income.

The main concern is the child’s interest in support that is fair and commensurate with income, and all other rules and principles must give in to this. In addition, the need for full and open disclosure of the payer’s income is critical to determining fair assistance. Since this information is controlled by the paying parent, timely and full disclosure is critical.

Maintenance arrears lifting test

The considerations for reducing or canceling maintenance arrears are different from the considerations for a retrospective change in maintenance. In cases of contestation, the previous support order or agreement is based on the payer’s actual income and thus correctly reflects the amount of support that should have been paid. The check for a reduction or cancellation of child support is therefore based on the current insolvency, i.e. the financial distress of the payer. The only decisive factor is the continued solvency of the paying parent, which in turn requires full and open disclosure of the financial circumstances of the paying parent.

It is assumed that the payer should pay the arrears, and this presumption is only rebutted if the payer’s parent, based on a weighing of probabilities, determines that even with a flexible payment schedule, the payer cannot and will not be able to pay the arrears. The recipient and child’s interest in safety and predictability is paramount as the payer has failed to comply with a court order or arrangement with no apology for failing to pay maintenance when due. The clearance of arrears is a last resort and is granted only in exceptional cases, and the courts should first consider whether the payer’s financial hardship can be alleviated by ordering temporary suspension, periodic payments, or other creative payment options.

SCC decision in Colucci

The Canadian Supreme Court eventually dismissed the father’s appeal, ordering him to pay the full amount of retrospective child support of $ 170,000. The court found that the father had committed culpable behavior by failing to provide the mother with evidence of his reduced income in 1998. He could not be established to validly report his 1998 income cut because he did not provide any evidence of it. In addition, his behavior was culpable and testified to malicious efforts to evade a court order for failing to make voluntary child support payments from 1998 to 2016. In addition, the father’s application was doomed to failure because he did not adequately disclose to the applicant judge his income in the years in which maintenance arrears arose, as well as his current financial situation. The inadequate financial disclosure was fatal for the father’s application, as he had failed to meet his burden of proof and was unable to pay the arrears now and in the future.

Both Michel and Colucci are examples of cases in which the culpable behavior of a paying parent of “waiting in the weeds” – waiting for their maintenance obligations until their children are no longer children of the marriage – backfires. The paying parent is required to provide full and timely financial disclosure and this may result in the court refusing to amend any child support order or arrangement retrospectively. Paying parents who evade their obligation to pay child support are treated similarly in civil matters to debtors who evade debt, and changing child support arrangements and / or reducing or reducing child support arrears is an uphill battle to cancel. The parties are encouraged to take active steps to meet their child support obligations. If you have any questions about retrospective or future child support, please contact one of our lawyers in the Family Law practice group.

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This article is intended to provide an overview and is for informational purposes only.