The Ontario Court of Appeal, in Colucci v Colucci, has clarified the issue of whether courts have jurisdiction to vary or discharge child support when the children are no longer “children of the marriage.”

Previous Caselaw

Up until now, many cases followed the Supreme Court of Canada case S. (D.B.) v G.(S.R.), where the Court held there was no jurisdiction to vary child support under section 15.1(1) of the Divorce Act. However, a line of conflicting cases follows Buckingham v Buckingham, which held the test for jurisdiction to vary differs from the test for jurisdiction to make an original order under s15.1(1).

Colluci v. Colluci

In Colluci, the father was in arrears in his child support of more than $175,000 when both his children ceased to be children of the marriage. Since then, the father worked as an unskilled labourer with a declining income. The father brought a motion to change the child support order retroactively and have his arrears rescinded on the ground that there had been a change in circumstances.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 a lack or jurisdiction, which was granted. The motion judge had ruled that case law disallowed the court to rescind arrears after the children were no longer children of the marriage. The father appealed this and claimed the motion judge should not have been dismissed on a jurisdictional issue. The appeal was allowed.

Justice Sharpe determined S (D.B) is limited to applications for original support orders pursuant to s15.1(1), which do not directly consider the issue of whether the court has jurisdiction to vary child support after the children are no longer “children of the marriage”. That issue falls under s 17(1) of the Divorce Act. The language in these two sections are different and they each of their own purpose.

Justice Sharpe also noted Ontario cases decided under the Family Law Act allowed jurisdiction to vary child support orders retroactively after the children were no longer “children of the marriage.” This would be an additional unfairness if parents in similar situations were permitted to vary under the Family Law Act but not the Divorce Act. In addition, the importance of certainty, consistency and finality are recognized as important considerations in child support orders that must be balanced with flexibility and fairness. Justice Sharpe concluded that the language of s17(1) does not deny the court jurisdiction to vary child support order after the children cease to be “children of the marriage.”

Although the decision in Colucci settles the jurisdiction issue, deciding whether to vary the order is another issue.

If you have questions about a family law dispute, including questions about child support contact the family law group at Mills & Mills LLP. We work to find solutions that work for our clients and their families. For more information on the services provided by our experienced family law lawyers, please contact us at 416­-863-0125 or send us an email.

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