Good parents pay

When parents separate, they (or, if they cannot, the court) must determine how each parent will contribute financially to the costs of raising their children. In Canada, the courts rely on child support guidelines, first introduced in the late 1990s, to determine the amount of money one parent – usually the father – has to pay to the other in child support. Along with the guidelines and calculation tables, provinces and territories have collection agencies (in Ontario, the Family Responsibility Office (FRO)) to ensure child support is paid, usually by taking it from the payor’s employer and depositing directly in the recipient’s bank account.

Those who don’t pay face penalties such as having their passport or driver’s licence suspended. FRO can also grab tax returns and other windfalls if the payer is recalcitrant in his responsibilities.

In an attempt to track down those who owe significant amounts of child support, FRO has created a website on which photos and identifying information about some of the province’s worst offenders appear, in the hope that people may spot someone they know and turn them in.

Evading responsibilities

Some men will go to great lengths to avoid contributing to their children’s financial support. Those who are self-employed or who work for cash, for instance, can hide income that should be included when the amount of child support is calculated. Some refuse to provide any financial disclosure, making it impossible for the court to determine how much support they should be paying. Others provide dishonest financial disclosure. Some quit their jobs to avoid paying support for their children. Others simply ignore the support order, hide their income and never pay. Some move around so much that it is impossible for any system to catch up with them.

In 2014, approximately two-thirds of child support orders in Canada were in arrears, with a total of $3.7 billion owed by payers to recipients. We can assume this figure is higher now. Not only does that leave a lot of children without the financial support they are owed, it puts huge pressure on the public purse, as their mothers turn to social assistance, subsidized housing and other social services to fill the gaps.

Time to pay up

On Friday, the Supreme Court of Canada (SCC) made an important child support decision in a case that began with the 1983 marriage of Felice and Lina Colucci. They had two children and divorced in 1996. The mother was granted sole custody of the children, and the father was ordered to pay child support in the amount of $155 per child per week. That child support obligation ended in 2012.

Mr. Colucci made almost no child support payments. In fact, he more or less disappeared from his children’s lives: for much of the time between 1996 and 2006, his kids and former wife did not know where he was living, and he made few if any attempts to spend time with his daughters. By 2012, he was in arrears to the tune of $170,000 (far from the largest amount of arrears owing in Canada).

Mr. Colucci had lived outside Canada for many of those years, in the United States as well as in Italy. He returned to Canada in 2016, and his arrears threatened to catch up with him. To try to avoid that, he brought a motion in family court to retroactively reduce the amount of child support he should have paid and to fix or get rid of the arrears. He was successful, and the amount of his arrears was reduced to just over $40,000. Ms Colucci appealed, the Ontario Court of Appeal agreed with her and overturned the earlier decision, whereupon Mr. Colucci appealed to the SCC.

In its decision on Friday, a unanimous Supreme Court upheld the Court of Appeal decision, meaning Mr. Colucci owes Ms. Colucci $170,000 in unpaid child support.

Informational asymmetry

The Supreme Court looked at a number of issues. Justice Martin, who wrote the decision, noted that one of the principles of Canadian child support law is that children have the right to a fair standard of support by both parents, whether or not they live together. Courts also need to be prepared, she pointed out, to vary the initial amount of child support when circumstances change.

When a payor seeks to vary the amount of child support, especially when he does so after the fact, as Mr. Colucci did, courts must consider a number of factors. Mr. Colucci did not bring his motion until four years after his obligation to pay support had ended and more than a decade had passed since the date he claimed his income had decreased. Furthermore, he had made no payments at all in the interim.

Usually only one person – the payor – has the information needed to determine the appropriate amount of support to be paid. If that person withholds or is dishonest about how much money they are earning, it is impossible for the court to set the amount of child support correctly. In a 2006 case, the SCC referred to this as “informational asymmetry.”

In the Colucci case, Justice Martin wrote:

“Simply stated, disclosure is the linchpin on which fair child support depends. . . it is the payor who knows and controls the information needed to calculate the appropriate amount of support. The recipient does not have access to this information, except to the extent that the payor chooses or is made to share it.”

A failing grade

Mr. Colucci failed on all fronts, as Justice Martin’s decision made clear.

He did not share necessary financial information to support his case: “the father’s deficient communication, inadequate evidence and insufficient disclosure are fatal to his application.”

His actions “showed no willingness to support the children, who suffered hardship as a result of his failure to fulfill his obligations.”

“His conduct shows bad faith efforts to evade the enforcement of a court order. He did not notify the recipient or the FRO when he left Canada or advise them of his whereabouts or income for the duration of his absence. . . . Mr. Colucci cannot now seek to avoid the consequences of his actions . . . Mr. Colucci has continued to evade his child support obligations by misrepresenting his financial circumstances. . . [he] filed no tax return in 2017 to avoid garnishment of his wages and tax refund, preferring to forfeit the refund altogether than have it go toward his child support obligations.” (emphasis mine)

A victory for mothers and children

For Ms Colucci’s sake, let’s hope Mr. Colucci coughs up the money he owes her. But this case has systemic importance, too.

West Coast LEAF and LEAF intervened in this case because of its importance to women, who are the primary recipients of child support. As Pam Hrick, Executive Director and General Counsel with LEAF, said of the decision:

“The Supreme Court of Canada has sent a clear message to payors who claim that their income has gone down that they have to notify recipients of this fact promptly and with concrete proof. We hope that this will significantly help women as they deal with delinquent payments.”

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