A payor parent has a large responsibility to pay child support, and in doing so, must provide full disclosure of their financial situation. Without this, a court may reject an appeal to retroactively decrease a payor parent’s child support. This is shown in the recent case of Colucci v. Colucci, adjusting the way in which the court responds to retroactive modifications and the rescission arrears.
I. Background on Colucci v. Colucci
The couple married in 1983 and later divorced in 1996. The father was ordered to pay a sum of$230 per week for their two daughters until 2012. In 1998, the father requested a retroactive decrease to his child support obligations, but failed to disclose any financial evidence to support his request. Subsequently, the father made no payments between 1998 and 2016, accruing arrears of about $170,000 as he remained absent from the children’s lives. In 2016, after granting the fathers motion to retroactively decrease his child support obligations and terminate his arrears on the basis of an income reduction, the motion judge’s decision was overruled by the Ontario Court of Appeal; the father was forced to pay the arrears in full. He then appealed this decision to the Supreme Court of Canada. This is where the alterations to the previous, somewhat unofficial, principles on retroactive child support were recently made.
II. Past Rules for Retroactive Child Support
A past case often used as an exemplar is of D.B.S. v. S.R.G, which set out a four factors to be considered when retroactively decreasing child support:
A. Hardship on the payor parent if forced to pay retroactive support;
B. Circumstances and suffering of the child in relation to the payors delay in support;
C. Payor parent’s conduct (hiding income, pressuring recipient into not asking for more support);
D. The recipient’s reasoning for the delay in seeking retroactive support.
The date of notice given to the payor generally acted as the date of retroactivity and as such, the onus was usually put onto the recipient in their efforts to ensure that they sought out the retroactive aid earlier on.
III. New Change to Retroactive Child Support
On top of the four factor consideration, generally in retroactive child support cases courts follow a rule in which the support cannot extend further than three years before the date of notice. This could be changed if it results in an unfair outcome to the recipient, if for example, the payor parent did not disclose enough financial information. After the ruling of Colucci v. Colucci, the onus is now usually placed on the payor parent’s disclosure instead of the recipient’s delay in seeking support, though they both still factor into the court's decision.
IV. Rescission of Arrears in Colucci v. Colucci
A rescission of child support orders is based on the payor’s continuous ability to pay, specifically the payor's inability to pay due to financial hardships. It is only granted in specific cases, and there is usually an effort to mitigate the hardship through other temporary payment options. This inevitably requires full financial disclosure, and failure to comply can result in losing the case.
V. Conclusion
The blameworthy misconduct through the inadequate financial disclosure on the part of the father, Mr Colucci, ultimately led to his loss in the case regarding a retroactive decrease in payment. Both parents have a legal obligation in providing for their children, and avoiding one’s legal obligation as the payor parent will always result in loss.
Works Cited:
Case law
Colucci v. Colucci, 2021 SCC 24 (CanLII), <https://canlii.ca/t/jg7j5>, retrieved on 2021-06-10
Online Resources
Perinchief, Dominique & Haneen Al-Noman “Recent Developments in Retroactive Child Support ” online (article): Cox & Palmer
<https://coxandpalmerlaw.com/publication/recent-developments-in-retroactive-child-support/?ut m_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration>
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