Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

This Week at the SCC

On Friday, June 4, 2021, the Supreme Court of Canada is releasing its decision in Felice Colucci v. Lina Colucci. This is a rare family law appeal and at issue are the factors that judges should consider when exercising their discretion to discharge child support arrears.

The appellant husband and respondent wife 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 were to end in 2012. However, by 2012, the appellant had fallen into substantial arrears and his taxable income had been in decline since 1997. The child support arrears with interest totalled 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.

The Supreme Court set out four factors to be considered when exercising its discretion to discharge child support arrears in D.B.S. v. S.R.G., 2006 SCC 37. The appellant in the present case argued that DBS had not been followed consistently across Canada and that only two factors are relevant in discharging child support arrears: (1) material change in circumstances since original order; and (2) proper amount of child support that the payor should have paid in accordance with his income and the guidelines.

The respondent argued that all four factors from DBS along with a contextual analysis ought to be applied. Support shouldn’t be automatically recalculated from the date of the material change in circumstances, but instead, judges should have significant discretion to recalculate it from a different date.

I’m leaning towards appeal dismissed. Even if the support payments were too high to begin with, I’m not sure the Court will come around to effectively sanctioning not making child support payments or not seeking to have them varied earlier.

Last SCC Decision

  • On May 28, 2021, the Supreme Court of Canada released its decision in MediaQMI inc. v. Kamel, 2021 SCC 23. In a 5:4 split, the Court dismissed the appeal and ruled that the appellant media company could not access court documents that had been filed, and then removed, from a civil lawsuit once proceedings ended.
  • The majority’s reasons, authored by Justice Côté, focused on the rules in the Quebec Code of Civil Procedure about accessing the right to access court records. Since those rules were clear, there was no need to interpret them in order to make them consistent with the Charter.
  • The dissenting reasons, authored by Chief Justice Wagner and Justice Kasirer, found that the case should have been sent back to the Superior Court to be decided on the basis of the analytical framework established in Dagenais and Mentuck. A court seized of an application to limit the openness of court proceedings must exercise its discretion in accordance with the analytical framework developed in those seminal cases.
  • This was a challenging case to predict and only 22% got it right. On top of it being a 5:4 split, we saw some unusual groupings. Justice Rowe was in dissent, but separated from his usual group of Moldaver, Brown and Côté JJ. We also had two of the three judges from Quebec in dissent on a case that the majority found turned on the interpretation of the Quebec Code of Civil Procedure.

-Tom Slade