In this case, the father chronically underpaid child support over 16 years accumulating a debt of more than $170,000. During that time, Mr. Colucci failed to disclose his income, rarely made voluntary payments, and left Canada twice without giving notice. Mr. Colucci applied to reduce his child support arrears arguing that his children are no longer eligible for child support now that they are adults. While the Ontario Superior Court of Justice granted Mr. Colucci a retroactive reduction to the child support owing, this was overturned at the Ontario Court of Appeal, and the case is now at the Supreme Court of Canada.
As we’ve explored in this week’s blog, unpaid child support remains a pervasive and unmistakably gendered issue contributing to the feminization of poverty. Following the breakdown of a relationship, women are more likely to experience poverty and financial instability. In BC, 85% of low-income single parents identified as female.
In hearing this case, the Court will decide what factors judges should consider when deciding whether to retroactively reduce or retroactively increase the child support arrears owed by a parent. We have long advocated for improved access to family justice, yet the difficulty of accessing justice systems is not reflected in Canada’s child support regime or in how courts assess claims for child support. Parents face many barriers to bringing an application for child support, including getting time off work to attend court, especially parents in entry-level positions; arranging childcare; filing at the closest court registry, which could be hours away; finding or affording legal representation; and family violence. In BC, legal aid will not fund standalone applications for child support.
A substantive equality lens is essential to the consideration of child support. A legal framework that equitably and fairly assesses child support must take as its starting point the feminization of poverty. In the overwhelming majority of child support cases, the recipient parents are women. Each unpaid child support instalment contributes to socioeconomic disparity and deepens child poverty.
The regime for assessing and recouping child support is flawed. It incentivizes paying parents to conceal their income or delay making payments and places the burden on the recipient parent to seek information from the payor parent about what changes may need to be made to the amount of support owing. And, critically, it doesn’t account for the dynamics of family violence, whereby each interaction between ex-spouses increases the risk of further violence.
While the Colucci case arises under the federal Divorce Act, the Supreme Court of Canada has also recently considered child support under BC’s Family Law Act (“FLA”). This past November, West Coast LEAF intervened in Michel v Graydon, a case about whether the court has discretion to order retroactive child support when the child is no longer a child under the definition in the FLA.
West Coast LEAF argued in favour of a broad and generous interpretation of the Act and highlighted how unpaid child support contributes to the feminization of poverty. Immediately following the hearing, the Supreme Court delivered a rare oral judgment directly from the bench that courts do have discretion to change retroactive child support orders under the FLA, with written reasons to follow.
These two child support cases at Canada’s top court over a short period of time demonstrate the need to change how child support is considered under legislative frameworks as well as in the court’s analysis.
To start to remedy the child support crisis in Canada, mandatory full financial disclosure before any proceeding—including alternative dispute resolution—is essential, as well as expanding legal aid available for family law matters.
With the recent legal attention on child support at the Supreme Court of Canada, we call on BC and Canada to take concrete steps to make the family justice system and child support more equitable and accessible. Stay tuned for news about the outcome of this case.