The Supreme Court of Canada recently released their reasons in the case of Colucci v Colucci 2021 SCC 24, and as such set the framework for the application of s.17 of the Divorce Act in varying existing child support orders retroactively.
In the current case, the father did not make any voluntary child support payments for over 16 years. As a result, he accumulated over $170,000 in arrears. Mr. Colucci originally sought recission of all or part of his arrears on the basis of his current and ongoing inability to pay. The motion judge in his original application retroactively decreased support and reduced the arrears owed to $41,642. The Court of Appeal for Ontario overturned that decision and ordered him to pay the full amount of arrears. The question before the Supreme Court were two-fold: what is the applicable framework with respect to s. 17 applications of the Divorce Act that seek to retroactively reduce or rescind arrears, and what is the appropriate framework when the payor parent seeks to rescind child support arrears under s.17 based on current and ongoing inability to pay?
The Supreme Court answered these questions by laying out a comprehensive legal test for when the payor applies under s.17 to retroactively decrease child. The first step of this test requires the payor to establish a past material change in circumstances, such as a job loss or significant pay decrease. Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date that the payor gave the recipient effective notice, but only up to three years before formal notice was given. The SCC specified that in this context effective notice requires clear communication, with any of the available documentation to substantiate the change and allow the recipient parent time to meaningfully assess the situation. If no effective notice is given, then the child support should generally be adjusted back to the date of formal notice. In setting out this framework the SCC made it clear that the court still retains discretion to depart from the presumptive date of retroactivity when the result would be unfair, however this discretion should be guided by the D.B.S factors of: (i) reason for payor’s delay(ii) payor’s conduct (iii) the child’s circumstances, and (iv) the hardship to the payor in comparison to the hardship to the child and recipient. Finally, once the court has determined that support should be decreased to a particular date, the decrease must be quantified in accordance with the Guidelines.
Mr. Colucci’s appeal was dismissed because the SCC found that applying this framework to the case at bar meant that there was no reason for this Court to intervene to reduce or forgive the debt that was accrued under the Ontario Court of Appeal’s existing order. Mr. Colucci did not give the effective notice, and did not commence a motion for 16 years. To grant a retroactive decrease in this case would give tacit approval to his conduct which would not be in the best interests of the children.
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