The Supreme Court of Canada just dismissed the appeal of a father who owed $170,000.00 in child support arrears. He consented to a child support order for his daughters, did not pay for 16 years, and eventually asked the Superior Court to reduce what he owed them. They did, ordering him to pay about a quarter of what he owed, about $41,000.00. The mother was successful in her appeal to the Court of Appeal, however, which reinstated his arrears to $170,000.00. He appealed to the Supreme Court, but his appeal was dismissed (Colucci v. Colucci 2021 SCC 24). See case in brief
The Court talks about the importance of financial disclosure as a cornerstone not only of divorce negotiations, but of child support in particular. With an emphasis on the newly revised Divorce Act requiring parties to resolve their differences by alternative means of dispute resolution such as collaborative negotiation or mediation, the Court comments at paragraph 51: “Full and frank disclosure is also a precondition to good faith negotiation. Without it, the parties cannot stand on the equal footing required to make informed decisions and resolve child support disputes outside of court. Promoting proactive payor disclosure thus advances the objectives — found in s. 1 of the Guidelines — of reducing conflict between the parties and encouraging settlement.”
The court further states that “A payor who has established a past decrease in income is not automatically entitled to a retroactive decrease of support back to the date of the decrease” but “once an increase in the payor’s income has been shown, the only question is how far back retroactive support should extend.”
The payor is the only one who knows whether there has been a change in income that would warrant an adjustment. There is a legislated obligation on a payor to provide the recipient with annual disclosure of the payor’s income, without being asked. Simply telling the recipient that income has increased or reduced is not enough; it needs to be backed up with documentary proof so that the parties make the appropriate adjustment based on shared information.
Mr. Colucci’s downfall was his failure to provide financial disclosure and in waiting too long to make his claim. He allowed the arrears to mount for the entire term of his obligation, waited four years after he was no longer obligated to pay to give formal notice that he didn’t have the ability to pay, and could not prove his past, or present, income.
Communication between parents regarding changes in income that affect child support, sharing the tax return and Notice of Assessment that proves the change, and discussing the impact of that change on the amount of child support, gives certainty and builds trust. And, it can save a great deal of money and effort down the road.
Author | Simonetta A. Lanzi | Family Lawyer
Simonetta practices family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact
