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The Supreme Court of Canada is seen in Ottawa November 4, 2019. Photo by Chris Helgren /REUTERS
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A precedent-setting Supreme Court of Canada decision on a Windsor child support case will have far-reaching effects on retroactive payments across the country.
In a unanimous decision delivered by Justice Sheilah Martin, the court laid out rules to be followed when a party applies to make retroactive changes to child support payments, said Surinder Multani, a Toronto lawyer who along with Goldhart and Associates’s Cheryl Goldhart, argued the case before the Supreme Court.
“What the Supreme Court did was they basically created a unified test that’s to be applied across Canada,” Multani said. “And the test is simple.”
Multani, who represented the recipient in the case, Lina Colucci, explained that the court said there must be a material change in circumstance and “effective” notice given for the change.
“Effective notice means not only telling the recipient there’s a material change but you have to give them disclosure, income information, so they can then assess whether child support should be reduced or not,” she said.
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“And if the recipient doesn’t agree, you just go to court. It forces payors to bring timely applications and not wait in the weeds.
“You can’t wait in the weeds because children miss out on support.”
Lawyer Surinder Muldani has won a case for a Windsor woman at the Supreme Court of Canada. Photo by Surinder Muldani /jpg
As well, the decision said the period of retroactivity is presumed to extend no further than three years before the date of formal notice to allow the parties to negotiate.
Changes are allowed further than three years if there are certain factors such as a delay by the payor, blameworthy conduct or hardships involved.
Windsor lawyer Richard Gordner, who represented the payor in the case, Felice Colucci, took the case to the Supreme Court, appealing a prior Court of Appeal decision.
Colucci had not paid child support for his two children, that had been agreed to in 1996, for 16 years and was in arrears of $170,000.
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A Superior Court decision in Windsor sided with Felice Colucci, saying his support payments should be determined by 1997 guidelines that based child support on income level and generally reduced payments because tax deductions for child support were no longer allowed.
His arrears were reduced to $41,642.
But the Court of Appeal overturned the lower court — based on several reasons, including that Colucci didn’t make voluntary payments over the approximately 16 years he was required to pay support and didn’t apply within the three-year deadline allowed for a reduction due to material changes in circumstance of reduced income.
He was ordered to pay the full $170,000 amount.
The justices agreed with the appeal court, writing, “The father made few, if any, voluntary payments and showed no willingness to support the children, who suffered hardship as a result of his failure to fulfill his obligations.
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“His conduct shows bad faith efforts to evade the enforcement of a court order. This case provides an example of the kind of inadequate disclosure that would justify a refusal to vary back to the date of formal notice.
“The father is not entitled to relief on the basis of a decrease in income.”
Gordner could not be reached Tuesday for comment.
“In Mr. Colucci’s case, this guy didn’t provide anything — no tax returns — and he says ‘I made minimum wage’,” Multani said. “How am I supposed to speak to my client about what his income is when I don’t believe anything that comes out of his mouth?”
Multani said child support is a fiduciary obligation.
“You have children, you have to provide for them,” she said. “The whole point of the test is to try to get timely support to the children when it’s owed. It’s a good decision.”
Multani said her client is “over the moon” and relieved after the court’s decision.
“It’s been a long fight.”
She is receiving payments from her former husband on the arrears debt.
This Superior Court decision applies across Canada, overruling previous tests for retroactive support increase or decrease applied provincially.
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