Every parent has an obligation to ensure that proper child support is in place following separation. It’s the law. But what happens when a payor fails to pay?
In Colucci v. Colucci, the Ontario Court of Appeal dealt with this very issue. In this case, the payor a brought a motion to change, seeking to rescind over $175,000 of child support arrears that had accrued pursuant to a 1996 Divorce Order. In support of his request, the payor pointed to the introduction of the Child Support Guidelines and a reduction in his income as evidence of a material change warranting a rescission.
In its analysis, the Court of Appeal found that a material change in circumstance had occurred since the 1996 Divorce Order (a threshold issue). The Court of Appeal went on to consider if it was appropriate to review the Order retroactively to 1998 (more than 19 years before the payor brought his motion to change).
The Court of Appeal reviewed the leading decision on retroactive child support, DBS v. SRG. The DBS decision set out four factors that a court should consider in applications for retroactive support as set out below:
- The reason for the delay as to why support was not sought earlier;
- Whether the payor has engaged in blameworthy conduct;
- The present and past circumstances of the child;
- Whether a retroactive award impose hardship on the payor.
Although DBS dealt with a support recipient’s application to increase child support, the Court of Appeal in Colucci held that the DBS factors should also apply in cases where there was material change in circumstances in the payor’s life that negatively impacted his or her ability to make child support payments.
Nevertheless, the Court of Appeal chose not to apply the DBS factors in this case, because the payor sought to retroactively reduce his obligation on the basis of his current inability to pay. Specifically, the payor was found to be a “recalcitrant payor,” whose failure to pay support caused financial hardship for the children and recipient. The payor’s blameworthy conduct was not limited to his failure to pay; he also willfully misrepresented his financial position during the motion to change and appeal proceedings. His failure to provide accurate evidence of his financial circumstances during the relevant period was “fatal” to his application to vary.
The payor in Colucci was granted Leave to Appeal to the Supreme Court of Canada (“SCC”). It is anticipated that the Appeal will be heard in fall of 2020. Goldhart & Associates is representing the recipient. The Supreme Court of Canada will be required to decide two issues:
- Do the factors in DBS and the presumptive three-year rule apply to retroactive reduction (or erasure) of unpaid child support arrears?
- Does the fault of the payor play a role in cancelling arrears?
While we wait for this matter to be heard by the Supreme Court of Canada (stay tuned for more updates from Goldhart & Associates on this case as Surinder Multani and Cheryl Goldhart prepare to argue the case in front of the highest court in the country!) remember:
- If a payor experiences a change in circumstances, including an increase or decrease in their income, it is important to take active steps to advise the recipient and the enforcing child support agency, if applicable, as soon as possible.
- Failure to provide full and timely financial disclosure, may later prejudice a payor’s claim to retroactively reduce child support or rescind arrears.
If you have questions about retroactive or prospective child support, Goldhart & Associates can clarify the law and apply it to your specific situation. Please contact us for a consultation.
By Surinder Multani