



COURT OF APPEAL FOR ONTARIO

CITATION: Colucci v. Colucci, 2017 ONCA 892

DATE: 20171122

DOCKET: C63664

Sharpe, Blair and Epstein JJ.A.

BETWEEN

Lina Colucci

Applicant (Respondent)

and

Felice Colucci

Respondent (Appellant)

Richard Gordner, for the appellant

Surinder Multani, for the respondent

Heard: October 5, 2017

On appeal from the order of Justice K.A. Gorman of the
    Superior Court of Justice, dated April 3, 2017.

Family Law – Divorce – Child Support – Arrears – Variation – Whether there is jurisdiction under s.17 of the Divorce Act to vary or discharge child support arrears once the children are no longer "children of the marriage" as defined in s. 2(1).

Sharpe J.A.:

[1]

The issue on this appeal is whether the Superior Court has jurisdiction
    under the
Divorce Act
, R.S.C., 1985, c. 3 (2nd Supp.), s. 17(1) to
    vary or discharge child support arrears where the application is brought after
    children are no longer children of the marriage.

[2]

That issue turns on how we are to interpret
D.B.S. v. S.R.G.
;
L.J.W. v. T.A.R
.;
Henry v. Henry
;
Hiemstra v. Hiemstra
, 2006 SCC
    37, [2006] 2 S.C.R. 231.
D.B.S
. holds that a court does not have
    jurisdiction to entertain an original application for child support under s.
    15.1(1) of the
Divorce Act
if the children are no longer children of
    the marriage. Does that mean that a court has no jurisdiction to vary an
    existing order for child support under s. 17(1) where the application to vary
    is made after children are no longer children of the marriage?

FACTS

[3]

The appellant father and the respondent mother were married in 1983 and
    divorced in 1996. They have two children born in 1988 and 1989. The appellant
    father was ordered to pay child support to the respondent mother at the time of
    the divorce in the amount of $115.00 per week for each child. He made more or
    less regular payments until April, 1998. Thereafter, payments were irregular
    and they eventually ceased in June 1999. He accrued more than $175,000 in
    arrears by the time both children were over eighteen years old and were no
    longer children of the marriage.

[4]

Since the divorce, the father has lived and worked as an unskilled
    labourer in Canada, the U.S. and Italy. His income tax returns and other
    financial disclosure report a declining income since 1997.

[5]

The father brought a motion to change the order retroactively and to
    have his arrears rescinded on the ground that there had been a change in
    circumstances. The mother brought a cross-motion to dismiss the application for
    want of jurisdiction. The father brought a motion for summary judgment, asking
    the court to determine that narrow issue. Specifically, he asked:

Does the court have jurisdiction to retroactively vary child
    support by discharging child support arrears which have accumulated pursuant to
    a court order, notwithstanding that the children are no longer entitled to
    support, i.e. they are no longer children of the marriage as defined by the
Divorce
    Act
, 1985 as of the date of the motion to change?

DECISION OF THE MOTION JUDGE

[6]

The motion judge dismissed the fathers motion and granted summary
    judgment dismissing the application to vary on the ground that D.B.S. deprives
    the court of jurisdiction to rescind or vary support arrears once the children
    are no longer children of the marriage.

ISSUE

[7]

The only issue on this appeal is whether the motion judge erred by
    dismissing the fathers application solely on the ground that the court did not
    have jurisdiction to entertain it.

ANALYSIS

[8]

The issue of jurisdiction turns on the effect of the Supreme Courts
    decision in
D.B.S.
That decision dealt with four applications to vary
    child support orders, two under Alberta legislation and two under the
Divorce
    Act
. The Supreme Court explained in some detail the principles governing
    child support and the variation of child support orders.

[9]

One of the points considered was whether an application for child
    support could be made under the
Divorce Act
after the child had ceased
    to be a child of the marriage. Writing for the majority of the court,
    Bastarache J. referred to the language of s. 15.1(1), the provision that
    authorizes a judge to make a child support order in a divorce application:

15.1 (1) A court of competent jurisdiction may, on application
    by either or both spouses, make an order requiring a spouse to pay for the
    support of any or all children of the marriage.

[10]

Relying on the specific language of the section, Bastarache J. held that
    s. 15.1(1) conferred jurisdiction to make a child support order only where
    there were children who were still children of the marriage. Given its
    importance to this appeal, I will quote the relevant part of the judgment, at paras.
    88 and 89, in full:

Under s. 15.1(1), an order may be made that requires a parent
    to pay for the support of any or all children of the marriage. The term
    child of the marriage is defined in s. 2(1) as

a child of two spouses or former
    spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn
    from their charge, or

(b) is the age of majority or over and under their charge
    but unable, by reason of illness, disability or other cause, to withdraw from
    their charge or to obtain the necessaries of life;

The question then arises when the material time is for
    retroactive child support awards. If the material time is the time of the
    application, a retroactive child support award will only be available so long
    as the child in question is a child of the marriage when the application is
    made. On the other hand, if the material time is the time to which the support
    order would correspond, a court would be able to make a retroactive award so
    long as the child in question was a child of the marriage when increased
    support should have been due.

In their analysis of the
Guidelines
, J. D. Payne and
    M. A. Payne conclude that the material time is the time of the application:
Child
    Support Guidelines in Canada
(2004), at p. 44. I would agree. While the
    determination of whether persons stand in the place of . . . parent[s] is to
    be examined with regard to a past time, i.e., the time when the family
    functioned as a unit, this is because a textual and purposive analysis of the
Divorce
    Act
leads to this conclusion; but the same cannot be said about the
    material time for child support applications:  see
Chartier v. Chartier
,
    [1999] 1 S.C.R. 242, at paras. 33-37. An adult, i.e., one who is over the age
    of majority and is not dependent, is not the type of person for whom Parliament
    envisioned child support orders being made. This is true, whether or not this
    adult should have received greater amounts of child support earlier in his/her
    life. Child support is for children of the marriage, not adults who used to
    have that status.

[11]

D.B.S.
did not directly consider the point at issue on this
    appeal, namely, whether the court has jurisdiction to entertain an application
    to vary a child support order after the children are no longer children of the
    marriage. That issue falls to be determined under s. 17(1) of the
Divorce
    Act
:

17 (1) A court of competent jurisdiction may make an order
    varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any
    provision thereof on application by either or both former spouses;



(4) Before the court makes a variation order in respect of a
    child support order, the court shall satisfy itself that a change of
    circumstances as provided for in the applicable guidelines has occurred since
    the making of the child support order or the last variation order made in
    respect of that order.

[12]

One of the four cases decided together with
D.B.S
.,
Henry
    v. Henry
, involved an application for retroactive variation of a child
    support order. At the time the notice of motion to vary was filed, the eldest
    child was no longer a child of the marriage. The Supreme Court held, at para. 150,
    that as the Notice to Disclose/Notice of Motion had been served while that
    child still was a child of the marriage, there was jurisdiction to entertain
    the application. That might suggest that there would have been no jurisdiction
    had the proceedings not been initiated while the child was still a child of the
    marriage, but the court did not directly consider or decide that point. In some
    cases, including the case at bar, trial level judges have held that
D.B.S.
governs and declined to vary child support orders after the children are no
    longer children of the marriage: see
Giroux v. Mueller
, 2013 ONSC
    246, [2013] O.J. No. 90;
Durso v. Mascherin
, 2013 ONSC 6522, [2013]
    O.J. No. 4803;
Noseworthy v. Noseworthy
(2011)
, 313 Nfld. & P.E.I.R. 1 (N.L.S.C.);
Boomhour
    v. Huskinson
(2008), 54 R.F.L. (6th) 297 (Ont. Sup. Ct.);
Krivanek v.
    Krivanek
(2008), 56 R.F.L. (6th) 390 (Ont.
    Sup. Ct.);
Haavisto v. Haavisto
, 2008 SKQB 446, 325 Sask. R. 82;
Millar v. Millar
,
    2007 SKQB 25, 292 Sask. R. 316.

[13]

There is, however, a strong line of conflicting authority supporting the
    view that given the different wording and purpose of s. 17(1), the test for
    jurisdiction to vary differs from the test for jurisdiction to make an original
    order under s. 15.1(1).

[14]

I am more persuaded by this line of authority. The leading and most
    carefully reasoned decision is
Buckingham v. Buckingham
,
2013 ABQB 155, 554 A.R. 256, where Strekaf
    J. concluded that both the wording of the statute and the principles of child
    support favoured distinguishing
D.B.S.
and interpreting s. 17(1) to
    allow a court to vary a child support order even though the children are no
    longer children of the marriage. The reasoning in
Buckingham
has been
    followed in a number of Ontario trial level decisions under the
Divorce Act
:
Timmers v. Timmers
, 2016 ONSC 306;
Charron v. Dumais
,
2016 ONSC 7491, [2016] O.J. No. 6235;
Lemay
    c. Longpré
,
2014 ONSC 5107,
    68 R.F.L. (7th) 365. Courts have also retained jurisdiction on the basis that
    the payor parents deliberate absence or deception prevented the recipient from
    applying for a variation while the child was still a child of the marriage:
George
    v. Gayed
, 2014 ONSC 5360, [2014] O.J. No. 4383;
Simone v. Herres
,
    2011 ONSC 1788, [2011] O.J. No. 1626.

[15]

I note as well that Ontario cases decided under the
Family Law Act,
R.S.O. 1990, c. F.3  hold that the court has jurisdiction to vary child support
    orders after retroactively after the children cease to be dependants,
    frequently citing
Buckingham
in support: see
Surighina v. Surighin
, 2017 ONCJ 384,
[2017] O.J. No. 3022;
Smith
    v. McQuinn
,
2016 ONSC
    7997, [2016] O.J. No. 6600;
Meyer v. Content
, 2014 ONSC 6001, [2014]
    O.J. No. 4992;
Catena v. Catena,
2015 ONSC 3186, 61 R.F.L. (7th) 463. While
    not determinative of the point at issue on this appeal, there would be an
    additional unfairness if parents in precisely the same situation were permitted
    to vary
Family Law Act
orders, but not orders under the
Divorce
    Act
.

[16]

To date, where retroactive variation is sought when the children are no
    longer entitled to support, the courts have seen fit to entertain the request
    in the following situations, summarized in
Smith v. McQuinn
, at para.
    59:

In summary, the case law has created exceptions to the DBS analysis
    in the following circumstances:

a) In variation proceedings where
    there is an existing order and an established support obligation under the
    Divorce Act, 1985, c. 3 (2nd Supp.) ("Divorce Act");

b) In motion to change proceedings
    where there is an existing order and an established support obligation under
    the FLA; and

c) When there has been blameworthy
    conduct on behalf of a support payor that has contributed to the support
    recipient's failure to bring the retroactive support claim within the requisite
    time.

[17]

Other cases have avoided applying
D.B.S.
by framing the motion
    as a matter of enforcement rather than variation. For example, in
Lalande
    v. Pitre
, 2017 ONSC 208, [2017] O.J. No. 101, an existing child support
    order required annual disclosure and contemplated adjustments based on income
    fluctuations. Relying on the decision in
Meyer,
at paras. 65-67 and 83,
    the court found that because the right to variation was clearly established in
    the order, the mother was entitled to enforce it, by seeking a retroactive variation
    for the child who was no longer a child of the marriage.

[18]

Ontario courts have also avoided
D.B.S.
by framing the motion
    as a variation even if there is no existing court order. In
P.M.B. v.
    A.R.C.A
., 2015 ONCJ 720, 71 R.F.L. (7th) 474, at paras. 92-94, the court distinguished
    from
D.B.S.
on the basis that the mother, who had brought an
    originating application for child support, was in reality seeking to adjust the
    terms of a well-established oral child support agreement retroactively.

[19]

As Strekaf J. observed in
Buckingham
, the interpretation of s.
    15.1(1) in
D.B.S.
turned on the precise wording of that provision,
    which confers jurisdiction to make a child support order for any who were, at
    the material time, children of the marriage. The jurisdiction to vary a
    child support order under s. 17(1) is at large and is not limited by those
    words. I agree that we should look first to the words of the statute and that
    given this crucial difference between the words of s. 15.1(1) and 17(1), we are
    not bound to import the interpretation accorded to s. 15.1(1) by the Supreme
    Court in
D.B.S.
when interpreting s. 17(1). Section 17(1) does not, by
    its language, limit the jurisdiction of the court to vary a child support order
    to the time period when the children are still children of the marriage and
    the decision in D.B.S. does not compel us to interpret the jurisdiction
    conferred by s. 17(1) as being precisely the same as that conferred by s.
    15.1(1).

[20]

Section 17(1) puts parties who are subject to a s. 15.1(1) order on
    notice that the order may be changed. That puts them in a different position
    than parties for whom no s. 15.1(1) order has been made.

[21]

I also agree with Strekaf J. that allowing a court to vary an existing
    order after the children cease to be children of the marriage is consistent
    with the principles of child support. The principles at play here are first,
    that the amount of child support depends upon the income of the parents;
    second, that as the parents income changes, so too does the obligation to pay
    support. The third relevant principle must be balanced with the second, namely,
    that child support orders should, as far as possible, foster certainty,
    predictability and finality.

[22]

As
D.B.S.
explains, it is a basic principle of child support
    and the
Federal Child Support Guidelines
that the amount of support is
    essentially determined by the income of the payor parent. If an order imposes a
    child support obligation that does not correspond to the payor parents income,
    the order is not consistent with that principle. It is for that reason that
D.B.S.
permits retroactive orders in appropriate circumstances. Section 17(1) allows a
    court to vary an order where there has been a material change in circumstances
    to ensure that the child receives an amount of support commensurate with the
    income of the payor parent.

[23]

Certainty, consistency and finality are important considerations in
    relation to child support orders but they must be balanced with the concerns of
    flexibility and fairness.

[24]

As the Supreme Court explained in
D.B.S.
, at para. 64, parents
    should not have the impression that child support orders are set in stone[T]here
    is always the possibility that orders may be varied when these underlying
    circumstances change: see s. 17 of the
Divorce Act
. The court added:
    The certainty offered by a court order does not absolve parents of their
    responsibility to continually ensure that their children receive the appropriate
    amount of support. A payor parent is not entitled to assume that his or her
    obligation is fixed for all time. If the payors income goes up, the support obligation
    may be increased. Similarly, the recipient parent cannot safely assume that he
    or she will always continue to receive the same amount to help support the
    children. If the payor parents income goes down, the amount of support may be
    decreased. As
D.B.S.
explains at para. 74: As the circumstances
    underlying the original award change, the value of that award in defining
    parents obligations necessarily diminishes.

[25]

How should these principles apply to the variation of child support
    orders after the children are no longer children of the marriage?

[26]

The first two principles favour giving a court the jurisdiction to vary
    the order, particularly in the case of increased support. I can see no reason
    why the court should be deprived of jurisdiction to consider the request of a
    recipient parent who struggled to support the children and to shift part of
    that burden to the payor parent if there was a change in circumstance that
    would have justified a variation while the children were still children of the
    marriage. The court faced with a variation application would, of course, have
    to be mindful of the principle that child support is the right of the child,
    not the parent and that once the children are no longer children of the
    marriage, they will not directly benefit from increased support. However, a
    regime that gave payor parents immunity after the children ceased to be
    children of the marriage would create a perverse incentive. If the payor parent
    is to be absolved from responsibility once the children cease to be children
    of the marriage, the payor whose income increases might be encouraged not to
    respond to his or her increased obligations in the hope that the reciprocal
    spouse will delay making an application for a variation increasing support
    until the children lose their status to avoid opening the door to an increased
    obligation: see
Simone v. Herres
, at para. 27.

[27]

While the argument for allowing post-child of the marriage
    applications to decrease support is perhaps less compelling, if there is to be
    jurisdiction to entertain applications to increase, I agree with
Buckingham
that the law should adopt an even-handed approach and, from a jurisdictional
    perspective, treat payor and recipient parents the same way. If a court has
    jurisdiction to consider a recipient parents request for a retroactive
    increase in child support where the payors income increased, there should also
    be jurisdiction to consider a payor parents request for a reduction where his
    or her income declined. Moreover, as I will point out, while the question of
    jurisdiction is one thing, the question of whether such applications should be
    allowed is quite another.

[28]

This brings me to the considerations of certainty, predictability and
    finality. I recognize that these are important values in the family law regime.
    The law should strive to be as certain and predictable as possible. The law
    should also discourage disturbing settled arrangements so that parties are
    encouraged to resolve their disputes and get on with their lives following
    family break-down, ideally without ever resorting to litigation for the sake of
    the children: see
Louie v. Lastman
(2001), 54 O.R. (3d) 286 at paras.
    33-34 (S.C.), affd (2002), 61 O.R. (3d) 449 (C.A.), leave to appeal refused,
    [2002] S.C.C.A. No. 465.

[29]

But as I have already mentioned, the interests of fairness and the need
    to ensure that children get the support they deserve precludes a rigid approach
    that forbids changing support orders when there has been a change in
    circumstances. The very existence of s. 17(1) demonstrates that finality has
    its limits and that neither children nor parents can safely assume that support
    orders will never change. The interest of certainty and finality does not, in
    my view, justify erecting a rigid jurisdictional bar on variation applications
    simply because the children are no longer children of the marriage.

[30]

For these reasons, I conclude that neither the language of s. 17(1) nor
    the principles of child support require us to deny a court jurisdiction to vary
    an existing child support order or well established written or oral argument
    after the children cease to be children of the marriage.

[31]

As I have noted, the issue before us on this appeal is a narrow one. The
    parties brought cross motions for summary judgment on the single issue of
    whether the court had jurisdiction to consider the fathers application to vary
    the child support order. The motion judge was not asked to decide the merits of
    the fathers application. In these circumstances, it would not be appropriate
    for us to go beyond the narrow issue of jurisdiction on the facts of this case.
    However, it is appropriate to point out that having the jurisdiction to vary an
    order is one thing and deciding whether to vary it is quite another.
D.B.S.
offers some guidance on when it will be appropriate to vary a child support
    order retroactively. The factors the court will consider include whether there
    has been unreasonable delay in seeking the variation, any misconduct of the
    payor parent, the circumstances of the child, and hardship to the payor. The
    issue of arrears calls for special consideration: see
D.B.S
. at para.
    98, stating that the factors are not meant to apply when arrears have
    accumulated. [T]he payor parent cannot argue that the amounts claimed disrupt
    his/her interest in certainty and predictability; to the contrary, in the case
    of arrears, certainty and predictability militate in the opposite direction.

DISPOSITION

[32]

I would allow the appeal, grant summary judgment declaring that the
    court has jurisdiction to entertain the application, and remit the matter to
    the Superior Court for a determination on the merits. I would fix the costs of
    this appeal at $4500 but order that liability of those costs and the costs of
    the motion for summary judgment be reserved to the judge hearing this matter on
    the merits.

Released: November 22, 2017

Robert J. Sharpe
    J.A.

I agree R.A. Blair
    J.A.

I agree Gloria
    Epstein J.A.


