UNANIMOUS
Supreme Court of Canada sides with mother seeking unpaid child support

© Provided by The Canadian Press Supreme Court of Canada 

OTTAWA — The Supreme Court of Canada stressed the importance of full financial disclosure by those responsible for paying child support in dismissing the appeal of a man who fell seriously behind in his obligations.

In its unanimous ruling Friday, the high court said Felice Colucci is on the hook for $170,000 in support payments despite his contention the amount should be much lower.

Colucci and wife Lina divorced in 1996 after 13 years of marriage, and the mother assumed custody of two daughters, who were eight and six at the time.

The father was required to pay $115 a week per child in support but two years later he requested a reduction on the basis his income had dropped. However, he provided no financial disclosure to document the circumstances and the parties did not come to a new agreement.

The father's support obligations ended in 2012 when the daughters completed their post-secondary education and found employment.

But from 1998 onward he made few if any voluntary support payments and only limited monies were collected through enforcement. Further, the father's whereabouts were unknown as the amount owing grew.

By 2016, the man's child-support arrears with interest totalled about $170,000.

At this point, he applied to retroactively reduce child support, saying he had moved to the United States from 2000 to 2005, earning about US$25,000 annually, before heading to Italy to care for his mother.

However, he provided little financial documentation to support his case.

Even so, a judge reduced the arrears owing to $41,642 in keeping with the father's lower income as well as new federal child-support guidelines introduced shortly after the divorce.

The Ontario Court of Appeal overturned the decision and ordered the father to pay the full amount owing, prompting his appeal to the Supreme Court.

In its decision, the top court said the child-support system depends upon adequate, accurate and timely financial disclosure by those obliged to make payments.

"Simply stated, disclosure is the linchpin on which fair child support depends and the relevant legal tests must encourage the timely provision of necessary information," Justice Sheilah Martin wrote on behalf of the court.

It is the payer who knows and controls the information needed to calculate the appropriate amount of support, she wrote. It would therefore be "illogical, unfair and contrary to the child’s best interests" to make the recipient solely responsible for policing the payer’s ongoing compliance with their support obligation.

"Full and frank disclosure is also a precondition to good faith negotiation," Martin wrote. "Without it, the parties cannot stand on the equal footing required to make informed decisions and resolve child support disputes outside of court."

Citing these principles, Martin set out a framework for determining a payer's application for a retroactive decrease in support based on a significant change in circumstances.

With regard to the Colucci case, she concluded the revised federal guidelines did amount to a noteworthy change, but the father's lack of communication and insufficient disclosure doomed his application.

The father "showed no willingness to support the children, who suffered hardship as a result of his failure to fulfil his obligations," Martin wrote.

She found Lina Colucci was left to shoulder the financial burden of raising and supporting the children on her own, and the daughters incurred considerable debt in pursuing their education due to the lack of support from their father.

"His conduct shows bad faith efforts to evade the enforcement of a court order."

The high court also found the father had not demonstrated he will be unable to pay now or in the future even with a flexible payment plan.

This report by The Canadian Press was first published June 4, 2021.

Jim Bronskill, The Canadian Press