Supreme Court doesn't let father who left country off the hook for $170,000 in child support

Last September, the Supreme Court of Canada confirmed a parent’s ability to make a retroactive claim for child support. Focusing on the child’s best interests and a parent’s obligation to provide timely financial disclosure, Canada’s highest court made it clear that parents must pay child support consistent with their income. Failure to do so will be corrected by a court order that reaches back in time and obligates a parent to pay what should have been paid.

With the ink still drying on its September decision, the SCC was again asked to look at retroactive child support, this time through an inverse lens: can a parent retroactively reduce child support? In Colucci v. Colucci, which was before the Supreme Court in November, the father sought to reduce or rescind child support arrears of approximately $170,000. In a unanimous decision of the Court penned by Justice Sheilah Martin and released on June 4, the Supreme Court declined to give the father any relief.

The facts of the case are relatively straightforward. Following a 13 year marriage, the parties divorced in 1996. At that time, the parties agreed their two daughters, 6 and 8 years of age at the time, would live with the mother and the father was to pay child support of $115 per week to the mother. Not long after the divorce, the father left Canada and his whereabouts were unknown for years. From 1998 to 2012, the father did not make any voluntary support payments. The child support obligation ended in 2012, at which time the children had completed post-secondary studies and were employed.

In 2016, the father resurfaced. By that time, the father owed child support arrears and accumulated interest of approximately $170,000. He commenced court proceedings wherein he sought to retroactively reduce his child support obligation to bring it in line with his declared income during those years over which the arrears accumulated. In addition, the father asked the court to consider his current and future inability to pay the arrears in determining if the arrears should be reduced or rescinded. Prior to commencing the court proceedings, the father took no steps to adjust his child support obligation beyond a request his lawyer made in 1998, which was neither agreed to by the mother nor pursued any further by the father.

In the court proceedings, the father revealed he had relocated to the United States in 2000, where he lived until 2005, earning approximately $25,000 per year. Thereafter, he relocated to Italy to care for his mother who passed away in 2008. Prior to his mother’s death, the father earned nominal income. Thereafter, the father lived off of the inheritance he received from his mother’s estate. Despite asking the Court to adjust the support arrears to reflect his historic income, the father failed to provide even the most basic financial disclosure such as income tax returns.

At trial, the father successfully reduced his support arrears to $41,642. The mother successfully appealed and the Court of Appeal for Ontario restored the full amount of child support arrears. The father appealed to the Supreme Court. In the unanimous decision released June 4, the Supreme Court refused to reduce the arrears and dismissed the appeal.

Justice Martin’s discussion of the father’s claim underscores the importance of timely financial disclosure in child support cases. “Disclosure is the linchpin on which fair child support depends and the relevant legal tests must encourage the timely provision of necessary information,” Justice Martin notes. The necessity of disclosure arises from the premise underlying the Child Support Guidelines which provide that a child-support obligation “should fluctuate with the payor parent’s income.”

Against the backdrop of the father’s failure to provide timely and adequate financial disclosure, Justice Martin assesses whether a retroactive reduction in child support is appropriate. “The recipient is entitled to expect that the existing order will be complied with unless they are in receipt of reasonable proof that a relevant change in the payor’s circumstances has occurred,” she writes. “Again, the payor holds the relevant information and knows when there has been a decrease in income. It is in the payor’s own best interest to use this knowledge to notify the recipient of the change in circumstances and take steps to formally vary a child support order.”

In that context, Justice Martin points out that it would be “illogical, unfair and contrary to the child’s best interests to make the recipient solely responsible for policing the payor’s ongoing compliance with their support obligation.” Further, “with full, frank and regular disclosure, long-term arrears — such as (the father)’s — should be rare.”

Justice Martin points to the father’s failure to take any meaningful steps to reduce his child support obligation for nearly 18 years. Instead, he left Canada and made few, if any voluntary payments. In so doing the father “showed no willingness to support the 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.” Continuing in her observations of the father’s conduct, Justice Martin notes the father “only came out of hiding when he had returned to Canada and was facing enforcement action by the FRO, including potential garnishment of his wages.” Granting a retroactive reduction in the child support arrears would “give tacit approval to this kind of conduct, contrary to the best interests of children.”

The message is clear: financial disclosure must be provided to ensure child support is paid in accordance with a parent’s fluctuating income. If a parent’s income changes, as is the case for most parents, a change in the amount of support payable must be sought and pursued in a timely manner. Parents should not expect a court to fix the consequences arising from their failure to do so.

This article originally appeared in the Financial Post.