This case concerned retroactive decreases in child support obligations, and the impact of those reductions on women and children’s substantive equality.

LEAF intervened before the Supreme Court of Canada.

Facts

Over 16 years, a father chronically underpaid child support to a mother, resulting in a debt of over $170,000. During that time, the father failed to disclose his income, rarely made voluntary support payments, and absconded twice without notice to his family or the Family Responsibility Office overseeing his support—first to the United States, and then to Italy. After his children no longer qualified for ongoing support because they were grown, the father applied to substantially rescind his debt. The Superior Court of Justice granted the father a retroactive reduction in child support arrears, reducing his debt to $41,642.

The Court of Appeal for Ontario overturned this decision for failing to apply a 2006 Supreme Court decision, DBS v. SRG, which involved retroactive increases of child support obligations. The Court of Appeal for Ontario decided that DBS should apply to applications for retroactive decreases of child support obligations.

Arguments

LEAF and West Coast LEAF provided the Supreme Court with an accurate picture of how child support is paid (or not paid) across Canada. The reality is that child support is dramatically underpaid and overwhelmingly gendered. The economic destinies of women and children are intertwined, as most children continue to live with their mothers. In the vast majority of cases, it is the father who is supposed to pay child support to the mother, and it is the father who fails to do so. Our intervention also highlights the interconnectedness of child support and intimate partner violence; in abusive relationships, financial abuse and threats are often present. Given all this, every unpaid child support instalment both contributes to women’s socioeconomic inequality and deepens child poverty. 

LEAF and West Coast LEAF proposed a simple framework to the Court to allow judges to take women and children’s substantive equality into account each time they are asked to retroactively modify a child support order. In addition to being fair and socially just, taking women and children’s substantive equality into account is required to fulfill the objective of the child support regime – providing for children’s welfare. 

Outcome

The Supreme Court of Canada revisited what legal test courts should apply when deciding whether to retroactively decrease a parent’s child support obligation or cancel arrears.

On these issues, the Supreme Court unanimously adopted West Coast LEAF and LEAF’s proposed legal framework, including the principle that payors must provide full documentation of their income information to support a request for a retroactive change to the child support that they owe. The fact is that only the payor knows when his income has increased or decreased — accordingly, it is his responsibility to provide evidence of that income fluctuation.

LEAF is grateful to Jennifer Klinck and Joshua Sealy-Harrington, counsel in this case, as well as Maxine Vincelette, Ottawa agent for LEAF and West Coast LEAF.

Download the factum here.

Read the Supreme Court’s decision here.

LEAF’s interventions are guided, informed and supported by a case committee composed of academics and practitioners with expertise in the relevant issues. We are very grateful to the Colucci case committee members (in alphabetical order): Natasha Bakht (University of Ottawa); Vicky Law (Rise Women’s Legal Centre); and Deepa Mattoo and Tamar Witelson (Barbra Schlifer Commemorative Clinic).