Supreme Court Sets Guidelines for Retroactive Child Support Decrease

Written on behalf of Shariff & Associates

Once a family law order or agreement for child or spousal support is in place, it can be a challenge to modify. Of course, circumstances change, and courts understand that sometimes the need for support or the ability to pay support can change as well. It is possible to obtain an order from a court varying an existing support arrangement, so long as certain requirements are met. However, these modifications often change the support to be paid going forward, from the date of the order or from the date a party brings the motion to change the previous order. Applying a change retroactively is often more difficult.

A person obligated to pay support may wish to reduce their support payments, particularly when they experience a significant change in their financial circumstances, such as unemployment or an injury or illness that impacts their ability to work. In some circumstances, they may want that change to apply retroactively to payments that have already been made, or to reduce arrears that have built up due to non-payment. Courts frequently deal with requests for the retroactive reduction of support on a case-by-case basis, which may vary from province to province. However, a recent Supreme Court of Canada decision has provided a framework that can be applied to similar cases across the country to determine whether a retroactive reduction of support should be applied.

Father Seeks Reduction of Child Support Arrears

In the case at hand, Colucci v. Colucci, the mother and father of two children had been married for thirteen years, divorcing in 1996. As part of the divorce order, the father was required to pay child support to the mother in the amount of $115 per child per week, for a total of approximately $920 per month. Notably, this order was made just a year before the federal Child Support Guidelines were enacted, to set a formula for determining child support obligations based on the number of children and the paying parent’s income.

Beginning in 1997, the father saw a steady decrease in his annual taxable income, causing him to fall behind in his payments. By 2012, when his support obligation was set to expire per the original order, he had amassed over $170,000 in arrears. In 2016, the father brought a motion to reduce the amount of the arrears based on his reduction in income since the original order. The motions judge considered that the Guidelines had been implemented the year after the original support order was made and determined this was a considerable change in circumstances. After imputing an income equivalent to the provincial minimum wage, the court re-calculated the father’s obligation based on the Guidelines formula. The motions judge reduced the arrears to $41,642.

The court set the father’s monthly obligation at $425 and also ordered him to pay his former spouse a portion of the proceeds following the sale of his mother’s home. The man’s former spouse appealed the decision, and it was reversed by the Ontario Court of Appeal, on the basis that the father had not provided sufficient evidence to properly assess his income for the respective period of time. The father then appealed the matter to the Supreme Court of Canada.

Supreme Court Sets Framework for Support Reduction Requests

The Supreme Court upheld the Court of Appeal’s decision, also determining that the father had provided insufficient documentation regarding his income. As part of the decision, the court also created a framework for courts to use going forward when deciding on issues relating to the retroactive variation of support. In doing so, the court acknowledged that there are three key interests that must be balanced in such cases:

The interests of the child(ren) involved to sufficient financial support for their needs;
The interests of all parties involved to consistency and predictability in financial support; and
The ability for courts to remain flexible when deciding these issues, in order to factor in specific aspects of each case before them.

Summing up the interests set out above, the court said:

The child’s interest in a fair standard of support commensurate with income is the core interest to which all rules and principles must yield. A fair result that adequately protects this interest will sometimes lean toward preserving certainty, and sometimes toward flexibility.

The court pointed out that the entire framework is also dependant on full and frank financial disclosure between the parties. In the case at hand, the father had been decidedly unforthcoming with respect to providing sufficient financial records.

Lastly, the court established that even when a drop in income has been established, the elimination of past support arrears should be the choice of last resort. Courts have the discretion to determine when this option should be applied, but it should be saved for exceptional cases only.

In applying the above framework to the case at hand, the court determined that the father had failed to provide sufficient evidence of his inability to pay the full amount of arrears he owed. As such, the father was required to make arrangements to pay the full $170,000 to the mother.

Contact Shariff & Associates in Stouffville for Child and Spousal Support Arrears or Variation Requests

The family lawyers at Shariff & Associates work with clients on a variety of variation applications, for applicants as well as respondents. We will review your situation and provide a realistic assessment of the likelihood of success with respect to the application. Whether requesting a variation or defending against one, we will advocate for the best possible outcome on your behalf. To review your matter with a member of our team, please reach out to us online, or call us at 905-591-4545.