Felice Colucci v. Lina Colucci
(Ont.) (Civil) (By Leave)
Family law - Child support - Family law - Child support - Retroactive cancellation of child support arrears - What factors should be considered when exercising a discretion to discharge child support arrears - Whether the factors set out in D.B.S. v. S.R.G., 2006 SCC 37,  2 S.C.R. 231, apply when a court is exercising its discretion to discharge child support arrears - Whether the factors in D.B.S. were applied appropriately - Whether the presumptive three-year rule applies when a court is exercising its discretion to discharge child support arrears - Whether courts are providing an incentive to payors to be delinquent in their support payments by permitting a cancellation of outstanding arrears - Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 17.
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The appellant and respondent were married in 1983 and divorced in 1996. They have two children. The parties’ divorce judgment, dated May 1996, provided for custody of the children to the respondent and required the appellant to pay child support in the amount of $115 per week per child. The appellant’s child support obligations ended in 2012. By 2012, the appellant had fallen into substantial arrears and his taxable income was in decline from 1997 onwards. The child support arrears with interest totaled more than $170,000.
In 2016, the appellant brought a motion to retroactively vary the child support and to fix the arrears of child support, if any, and determine the payments on those arrears in accordance with his income. The motion judge recalculated and reduced the arrears owing to $41,642. The Court of Appeal allowed the appeal in part and set aside the paragraph of the motion judge’s order which reduced the arrears owing. The appellant’s cross-appeal from the costs award was dismissed.
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