Colucci v. Colucci, 2017 ONCA 892: This Court of Appeal decision established that the court has jurisdiction to vary child support under s.17 of the Divorce Act even after the children are over the age of 18 and therefore no longer considered ‘children of the marriage’ as defined in s.2(1) Divorce Act.
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 had reached the age of eighteen and were no longer “children of the marriage”. Following the divorce, the father lived and worked as an unskilled labourer in Canada, the U.S. and Italy. His income tax returns and other financial disclosure reported a declining income beginning in 1997.
The father brought a motion to change the order retroactively and to have his arrears rescinded on the ground that there had been a change in circumstances.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 the issue of jurisdiction.
In favour of the mother, the motion judge dismissed the father’s motion and granted summary judgment dismissing the father’s application to vary. He had argued that the court had no jurisdiction because the children were no longer “children of the marriage” because of their age.
The father appealed.
The central issue for Justice Sharpe on appeal 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”.
The leading case for interpretation of s. 15.1(1) Divorce Act is S. (D.B.) v. G. (S.R.),  S.C.C.A. No. 100. According to this case, the courts have no jurisdiction to alter child support where the child is no longer under 18 and therefore no longer a “child of the marriage”.
The precise wording of s.15(1) was held to give jurisdiction to Courts to make a child support order for any who were, “at the material time”, “children of the marriage” – meaning that a judge does not have jurisdiction to make a child support order for someone over the age of 18. However, the jurisdiction to vary a child support order under s. 17(1) is not limited by these words.
This decision highlighted a line of 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), such that the Courts have jurisdiction to vary a child support order after a child turns 18.
The leading and most carefully reasoned decision supporting the fact that the different wording in s.17(1) allows for the variance of a child support order after a child is no longer a child of marriage is an Alberta Queen’s Bench decision in Buckingham v. Buckingham, 2013 ABQB 155, where Justice Strekaf concluded that both the wording of the statute and the principles of child support favoured distinguishing S.(D.B). 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. In Buckingham, the payor parent’s deliberate absence or deception prevented the recipient from applying for a variation while the child was still a “child of the marriage” and variation was granted.
In other words, this appeal distinguished S.(D.B),.and the Ontario Court of Appeal held that 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.”
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 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 principle is that child support orders should, as far as possible, foster certainty, predictability and finality. The third principle must be balanced with the second – if an order imposes a child support obligation that does not correspond with the payor parent’s income, the order is not certain, final or, according the Court of Appeal in this case, the order is not fair. It is for that reason that 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.
The Court of Appeal in this case felt that they should be permitted 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. Their approach to this case is based on trying to make things fair and to treat the payor and recipient parent in the same way. 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. If a court has jurisdiction to consider a recipient parent’s request for a retroactive increase in child support where the payor’s income increased, there should also be jurisdiction to consider a payor parent’s request for a reduction where his or her income declined.