Colucci v Colucci; A Framework For Retroactive Child Support Variations

• Published date: 11 June 2021
• Subject Matter: Family and Matrimonial, Family Law, Divorce
• Law Firm: Clark Wilson LLP
• Author: Ms Chantal Cattermole and Jaicee Payette

The Supreme Court of Canada decision of Colucci v Colucci, 2021 SCC 24 ("Colucci") rendered on June 4, 2021 has brought clarification as to which frameworks to rely on when faced with an application to retroactively vary a child support agreement brought under section 17 of the Federal Divorce Act, RSC 1985, c 3 (2nd supp), s 17 ("Divorce Act"). From the initial mindset that retroactive support was only to be awarded in exceptional circumstances, to D.B.S v S.R.G, 2006 SCC 37 ("D.B.S.") establishing a free-standing legal obligation on parents to pay child support commensurate with income, Colucci has clearly defined the obligation placed on payor parents to uphold their financial duty to their children.

D.B.S. v S.R.G.

In the landmark case of D.B.S. v S.R.G. the courts endorsed an obligatory child-centric system of support, and moved away from the payor-centric system that existed before the Federal Child Support Guidelines, SOR/97-175 ("Guidelines") came into effect in 1997. Though the Guidelines were put in place to establish a child-centric view of retroactive support payments, D.B.S. formally acknowledged in caselaw that support is the right of the child and parents have a financial obligation to their children that begins at birth and continues even after parental separation. Additionally, D.B.S. clarified that if a payor's income increases, it is the duty of the Payor to increase support payments under a free-standing legal obligation to their children. An always present factor to be considered while referring to the Guidelines and principles from D.B.S. is the informational asymmetry present between the recipient and the payor. This asymmetry results in the consistent need for full and frank disclosure of income by the payor. It is often said that accurate and timely disclosure of income is the linchpin of the child support system.

Considering the above interaction, if a retroactive increase of support variation is sought in light of an increase in income that wasn't reported, it is not truly retroactive because the payor should have fulfilled the obligation to increase payments already.

D.B.S. Factors interpreted in Colucci

The ultimate goal, as stated in Colucci, is to ensure that the child involved is receiving what they are owed at the time they are owed it. To uphold this goal, Colucci has interpreted and endorsed the factors stated in D.B.S. to ensure that the objective is achieved.

Threshold requirement

The threshold requirement addressed...