SCC child support judgment is ‘a great decision for clarity’

By Tony Poland, LegalMatters Staff • A landmark Supreme Court of Canada (SCC) decision provides a “clear roadmap” for retroactive child support variations that will help guide lawyers and their clients, says Toronto family lawyer A. Julia P. Tremain.

According to the SCC summary, Colucci v. Colucci gave the court “the opportunity to establish a framework … to follow when a parent tries to retroactively decrease child support to reflect a past reduction in income under s. 17 of the Divorce Act.”

The unanimous ruling has been hailed by family lawyers for providing much-needed direction for dealing with the issue. 

“It is a great decision for clarity. It will really help lawyers when giving advice to clients,” says Tremain, a partner with Waddell Phillips Professional Corporation. “It clearly lays out the responsibility of each party in the event of a change in income; what they have to do, and what they would have to show.

‘Anybody can read this and understand their obligations’

“It’s a straightforward decision. Anybody can read this and understand their obligations,” she tells LegalMattersCanada.ca. “It is a really good tool for us to have in our toolbox.”

The Supreme Court was told a couple was married in 1983 and divorced 13 years later. The mother was awarded sole custody of their two daughters and the father was ordered to pay $115 per child per week in child support.

The father did not make any voluntary support payments for 16 years, failed to disclose his income and relocated to two different countries without telling his ex-wife, court heard. When his obligation to pay child support ended in 2012, he owed almost $170,000 to his ex-wife.

In 2016, the man applied to have the debt cancelled or reduced under the Divorce Act. The Ontario Superior Court agreed to reduce the debt to $42,000 but his ex-wife took the case to the Ontario Court of Appeal, which reinstated the original amount of $170,000.

In its decision rendered last month, the Supreme Court found the man tried to seek a retroactive decrease of child support payments back to 1997 even though he never notified his ex-wife about his decreased income at the time.

Up to the courts to make discretionary decisions

The high court noted that a parent who has established a past decrease in income is not automatically entitled to a retroactive decrease of support and “emphasized that it is up to the court to make a discretionary decision based on its analysis of the specific circumstances of the given case,” according to the SCC summary.

“The Court said the father failed to communicate or seek a change of the support order for 18 years. It said ‘he made few, if any, voluntary payments during that time and showed no willingness to support his children, who suffered hardship as a result of his failure to fulfill his obligations. His conduct shows bad faith efforts to evade the enforcement of a court order,’” the summary states.

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The Supreme Court found the man’s “failure to produce adequate evidence of his financial circumstances was fatal to any attempt to cancel his child support debt,” and that cancellation of child support debt only happens in exceptional cases and as a last resort. The payment and enforcement of child support is the “rule,” the court says. 

The man’s appeal was dismissed and he was ordered to pay the $170,000.

“One of the most important things about the decision, if not the most important thing, is the emphasis on disclosure,” says Tremain, who was not involved in the case but comments generally. “It has to be full and complete and timely. It is in the payor’s control so they have to disclose their financial circumstances. They can’t rely on non-disclosure or time passing to back out of their obligations.”

Putting the child first still the priority

She says while the SCC sets out guidelines for dealing with the issue of variations, what doesn’t change is the court’s focus on putting the child first.

“That’s always been the case, and this doesn’t change anything,” Tremain says. “This is reinforcement from the Supreme Court of Canada that says thou shalt disclose. 

“This decision is extremely helpful because you do end up with people who are reluctant to disclose their income. Now it’s very clear it’s not something that they can negotiate around or pretend doesn’t exist. They’ve got to do it.”

She says people’s financial circumstances change so it is not uncommon for those paying child support to seek a reduction. However, the proper steps must be taken. 

“This decision gives an outline for what should be done in that case,” Tremain says. “It starts with disclosure, and giving notice to the other party about the change in circumstances. 

“The ruling also talks about how any hardship cannot just be temporary and it can’t be voluntary. You can’t just choose to be underemployed,” she adds. “For example, you have to have lost your job and it has to be for a long period of time. Then you have to actually provide disclosure showing that your income has dropped before you can even get to the stage of renegotiating support payments.”

Court ‘talks about blameworthy conduct’

Tremain says the Supreme Court also “talks about blameworthy conduct” in the decision.

“They don’t want someone who hasn’t paid and hasn’t managed their money well to then just sit back and say, ‘Well, now I can’t pay, I don’t have any ability,’” she says. “If the person seeking the variation is the author of their own misfortune and they haven’t made any good faith efforts to resolve the issue, the court is not going to accept their argument.”

Tremain notes the judgment comes at an important time. The financial impact of the COVID-19 pandemic may not be known for some time and more people might be in a position to seek custody payment variations in the near future.

“I don’t believe we’ve really seen the full consequences of COVID on incomes. People were able to get through the past year by various means,” she says. “Businesses are reopening but who knows if they can survive after such a blow. Over the next few years and there may be more businesses that fail, then we may start seeing the impact.”

Tremain says in the end, the case illustrates how costly it can be if you fail to meet your legal obligations.

“You run huge risks if you don’t abide by the law,” she says.

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