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  • Sea to Sky Law

Is support a right?

On 4 June 2021 the Supreme Court of Canada issued an unanimous decision about how the retroactive reduction of a periodic child support amount should be approached, cited as Colucci v Colucci 2021 SCC 24. Photo from the SCC collection.

This decision was about an application under s17 of the Divorce Act which is a Federal Act thus applies nationally. Unlike the earlier decision addressing when the total amount of child support arrears can be reduced, this decision is about how the amount payable might be re-calculated retroactively by applying the 1997 Child Support Guidelines to an order made before the Guidelines were law.

The Applicant father said he had an automatic right to a reduction in his original payment at least since the Guidelines came into force, even though he never informed the mother of his reduced income nor provided proper financial disclosure nor made regular if any child support payments for 16 years. The trial judge agreed and retroactively recalculated the support payable, effectively reducing the total arrears owing from $170,000 to about $42,000. The Court of Appeal disagreed and ordered the total owing by the original support order. The SCC agreed with the Appeal Court stating several principles apply including children have the right to support, parents must pay support starting at birth even if no Order, that any reduction is discretionary not a right, that the application failed due to bad faith in not disclosing nor complying with a court order.

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