This Month In NS Family Law ' June 2021

• Published date: 06 July 2021
• Subject Matter: Tax, Family and Matrimonial, Family Law, Income Tax, Corporate Tax
• Law Firm: Cox & Palmer
• Author: Ms Jocelyn Campbell, Michelle Axworthy, Andrea Pierce and Kelcie N. White

Colucci v. Colucci, 2021 SCC 24
Martin J., Wagner C.J. and Abella, Moldaver, Karakatsanis, C'té, Brown, Rowe and Kasirer JJ. Concurring

Issues: Retroactive child support | Rescinding child support arrears

This Supreme Court of Canada decision created a new approach to retroactive child support and arrears.

The parties had a nine-year marriage. The mother has custody of their two children. The father was to pay $920 per month for child support based on the parties' Consent Order. The Order was issued one year before the Child Support Guidelines became law. From 1998 to 2012, the father made no voluntary child support payments. He later brought an application to retroactively decrease his child support payments.

To assess whether child support should be retroactively varied under the Divorce Act, the court provided the following framework:

1. The applicant must show a past change in circumstances, usually a change in the payor parent's income;
2. There is a presumption that the retroactive date is the date when the other parent was informed of the change in circumstances Generally, the retroactive date can be up to three years prior to the other parent learning of an application to vary child support;
3. If the other parent was not informed of the change, the retroactive date is the date that they were formally informed of an application to vary child support;
4. If it is unfair to use the presumed retroactive date, the court may choose to apply a different retroactive date. When determining the appropriate retroactive date, the four D.B.S. factors are considered. They include:

1. Whether the applicant has an understandable reason for the delay in giving effective notice or making an application to the court?
2. Conduct of the payor parent;
3. Past and present circumstances of the child;
4. Hardship to the payor parent if a different retroactive date is used.

5. If the court determines that a retroactive adjustment is appropriate and a retroactive date is determined, the retroactive amount is determined by referring to the Child Support Guidelines.

In this case, the court accepted that the Child Support Guidelines coming into force was a change in circumstances. However, the court declined to retroactively decrease the father's child support payments based on his failure to provide updated income information and his unwillingness to make voluntary child support payments.

With respect to the arrears, the court noted that child support arrears are rarely rescinded...