Supreme Courtroom does not let father who left nation off the hook for $170,000 in youngster help

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A financial disclosure must be submitted to ensure that child support is paid in accordance with the fluctuating income of the parents

Author of the article:

Adam N. Black, Special on Financial Post

Publication date:

June 21, 2021 • 54 minutes ago • Read for 5 minutes • Join the conversation If the income of one of the parents changes, a change in the amount of maintenance must be applied for and followed up in good time. Photo by Getty Images / Istockphoto

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Last September, the Canadian Supreme Court upheld a parent’s ability to file retrospective child benefit claims. With a view to the best interests of the child and parents’ obligation to provide timely financial disclosure, Canada’s highest court made it clear that parents must pay child support based on their income. Failure to comply is corrected by a court order that goes back in time and obliges a parent to pay what should have been paid.

Since the ink is still drying in its September decision, the SCC was asked again to examine retrospective child support, this time through an inverted lens: Can parents reduce child support retrospectively? In the Colucci v Colucci case, heard in the Supreme Court in November, the father attempted to reduce or remove maintenance arrears of approximately $ 170,000. In a unanimous court decision, drafted by Judge Sheilah Martin and released on June 4, the Supreme Court denied any discharge to the father.

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The matter is relatively simple. After 13 years of marriage, the parties divorced in 1996. At that time, the parties agreed that their two daughters, then 6 and 8 years old, would live with their mother and that the father should pay $ 115 per week to support their mother. Not long after the divorce, the father left Canada and his whereabouts were unknown for years. From 1998 to 2012 the father did not pay any voluntary maintenance payments. The maintenance obligation ended in 2012, at which time the children had completed post-secondary studies and were gainfully employed.

In 2016 the father reappeared. At this point, the father owed maintenance arrears and accumulated interest of approximately $ 170,000. He opened a lawsuit attempting to retrospectively reduce his maintenance obligation to bring it into line with his declared income over the years the arrears have accumulated. In addition, the father asked the court to take into account his current and future insolvency when deciding whether to reduce or remove the arrears. Prior to the initiation of legal proceedings, the father took no steps to adjust his maintenance obligation beyond a request made by his lawyer in 1998, to which the mother neither consented nor pursued by the father.

In court proceedings, the father announced that he had moved to the United States in 2000, where he lived until 2005 and earned about $ 25,000 a year. He then moved to Italy to take care of his mother, who died in 2008. Before the death of his mother, the father earned a nominal income. After that, the father lived on the inheritance he received from his mother’s estate. Although the father asked the court to adjust the maintenance arrears to his historical income, the father did not provide even the most basic financial information, such as income tax returns.

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In the process, the father successfully reduced his maintenance arrears to $ 41,642. The mother successfully appealed and the Ontario Court of Appeals restored the full amount of the maintenance arrears. The father appealed to the Supreme Court. In the unanimous decision released on June 4, the Supreme Court refused to reduce the arrears and dismissed the appeal.

Judge Martin’s discussion of the father’s claim underscores the importance of timely financial disclosure in child support cases. “Disclosure is the fulcrum on which fair child maintenance depends, and relevant legal reviews must encourage the timely provision of the necessary information,” noted Judge Martin. The disclosure requirement arises from the premise of the Child Support Guidelines, according to which a maintenance obligation “should fluctuate with the income of the paying parent”.

Given that the father does not provide timely and adequate financial disclosure, Judge Martin is examining whether a retroactive reduction in child support is appropriate. “The recipient is entitled to the existing order being fulfilled, unless he receives reasonable evidence that a relevant change in the payer’s circumstances has occurred,” she writes. “Here, too, the payer has the relevant information and knows when there has been a drop in income. It is in the payer’s own interest to use this knowledge to inform the recipient of the change in circumstances and to take steps to formally change a child support arrangement. “

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In this context, Judge Martin pointed out that it would be “illogical, unfair and contrary to the best interests of the child to hold the recipient solely responsible for monitoring the payer’s ongoing compliance with his duty to provide assistance”. In addition, “with full, open and regular disclosure, long-term arrears – like those of the father – should be rare.”

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Judge Martin points out that the father has not taken sensible steps to reduce his child support obligations for almost 18 years. Instead, he left Canada and made few, if any, voluntary payments. The father showed “no willingness to support the children who were in need because of the non-fulfillment of his obligations. His behavior shows malicious efforts to evade the enforcement of a court order. ”In her observations of the father’s conduct, Judge Martin states that the father“ did not come out of hiding until he returned to Canada and faced enforcement actions by the FRO including a possible seizure of his wages ”. Granting a retrospective reduction in maintenance arrears would “tacitly approve of such behavior contrary to the best interests of the children”.

The message is clear: to ensure that child support is paid according to the fluctuating income of the parents, financial disclosure must be made. If the income of one of the parents changes, as is the case with most parents, a change in the amount of maintenance must be applied for and followed up in good time. Parents should not expect a court to determine the consequences of their failure to act.

Adam N. Black is a partner in the family law group at Torkin Manes LLP in Toronto.

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