The Ontario Court of Appeal decision of Colucci v Colucci, 2019 ONCA 561 deals an application by a payor father to reduce his child support arrears which had accumulated to over $170,000.
In 1996, the payor father had been ordered to pay $115 per week in child support for each of his two children. The payor father’s obligation continued until 2012 after which time the two children were no longer considered children of the marriage. Between 1996 and 2012, the payor father was described as having made “few payments” resulting in his substantial arrears. In 2016, the payor father brought an application to retroactively vary his child support payments, fix the arrears of child support, if any, and determine arrears payments based on his actual income which he alleged was minimum wage.
The lower court had found that the payor father was entitled to a variation and recalculation of retroactive child support based on table amounts of child support (which came into force in 1997) and the payor father’s drop in employment income to minimum wage. The variation and recalculation of child support completed by the lower court resulted in a reduction of arrears owing to $41,642.
On appeal, however, the Ontario Court of Appeal found that the lower court erred in having failed to apply the governing principles to the retroactive child support variation application as set out in of DBS v SRG, 2006 SCC 37 (CanLII),  2 SCR 231 and Gray v Rizzi, 2016 ONCA 152. The Ontario Court of Appeal summarized the factors governing an application to retroactively vary child support, as follows:
- The “three year rule”: It will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given.
- The “DBS factors”:
- Whether there was a reasonable excuse as to why a variation in support was not sought earlier;
- The conduct of the payor parent;
- The circumstances of the child and;
- Any hardship occasioned by a retroactive award.
- That the DBS factors are to be applied to scenarios of retroactive increases and decreases in child support.
- Where there is a request to retroactively decrease child support, however, the following additional considerations to be made:
- The best interests of the child is the paramount issue. Parents cannot bargain away their children’s rights to support when they need it. Delinquency in paying support should not be incentivized.
- There is a distinction to be made between (i) requests for a reduction of arrears based on a current inability to pay and (ii) arrears arising from a change in financial circumstances that affected the payor’s ability to make the support payments when they came due. A current inability to pay will generally not result in a reduction unless the payor can demonstrate on a balance of probabilities that he or she cannot and will not ever be able to pay the arrears. However, a change in circumstances while arrears were accumulating, which rendered the payor unable to make support payments for a significant period of time, may allow for a retroactive decrease in the amount of child support owed during that time and a reduction of the accumulated arrears.
- In deciding whether to grant retroactive relief, the date of retroactivity and the appropriate quantum of relief, the Court is to consider the following key factors:
- The nature of the obligation to support, whether contractual, statutory or judicial;
- The ongoing needs of the support recipient and the child;
- Whether there is a reasonable excuse for the payor’s delay in applying for relief;
- The ongoing financial capacity of the payor and, in particular, his or her ability to make payments towards the outstanding arrears;
- The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he or she has cooperated with the support enforcement authorities, and whether he or she has complied with obligations and requests for financial disclosure from the support recipient;
- Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears and;
- Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears.
In applying the governing principles to the facts in Colucci, the Ontario Court of Appeal took an unsympathetic approach to the payor father’s delinquent actions:
The respondent has been, at best, a recalcitrant payor who over 23 years has made few support payments, particularly when he disappeared and was out of the country for 15 years. The respondent was underemployed and left the appellant to carry alone the heavy responsibility of raising and supporting their two daughters. The respondent has placed a substantial financial burden on his family’s shoulders. His daughters have accumulated considerable debt in their pursuit of post-secondary education. Any alleged hardship arising from the substantial arrears that the respondent has permitted to accumulate results from his own blameworthy conduct.
The respondent has not discharged his onus to explain his significant failure to make support payments and his extraordinary delay in proceeding with his application to vary, nor has he produced reliable evidence of his inability to pay while arrears were accumulating, particularly during the periods when he absconded without a trace to the United States and Italy, and was in receipt of a substantial inheritance from his mother’s estate. The plain fact remains that even if the motion judge’s order should remain unaltered, the respondent still owes substantial arrears that he has failed to reduce.
The Ontario Court of Appeal emphasized the importance of providing full and accurate financial disclosure on a retroactive child support application, having found that as a result of the payor father’s failure to provide same, it was unable to determine whether the facts of the case give rise to a current inability to pay arrears or form a change in financial circumstances that affected his ability to make the support payments when they came due.
The Court of Appeal dismissed the payor father’s argument that he provided notice to the mother in 1998 that he was seeking to reduce his support obligations:
The respondent took no steps to further his request to reduce his support obligations between 1998 and his motion in 2016: he produced no proof of his changed financial circumstances, nor, after his initial request for a reduction in 1998, did he instigate any further negotiations, mediation or court proceedings. Given the appellant’s refusal of his request, it was incumbent on the respondent to initiate proceedings in a timely manner: Templeton v. Nuttall, 2018 ONSC 815 (CanLII), at para. 52; Corcios, at para. 55(8). However, in the case at bar, the respondent unreasonably failed to do anything for 18 years. As a result, the effective date of notice should be November 17, 2016, the date he commenced his motion to change.
The Court of Appeal found that it was not appropriate to adjust retroactive child support for more than 3 years prior to November 17, 2016, being the date the payor father commenced his action. Using November 17, 2016 as an effective date of notice, however, did not affect the amount of arrears accumulated to 2012 when the payor father’s obligation ceased. The Court of Appeal further confirmed that the effective date of notice did not reduce the interest accruing on the accumulated arrears from November 17, 2013 onwards.
Ultimately, the Court of Appeal ordered that there would be no reduction to arrears owing by the payor father to the mother.