In 2018, in anticipation of amendments to the federal Divorce Act, Attorney General Jody Wilson-Raybould, brought public attention to the vast scope of unpaid child support in Canada.
“There are billions of dollars in unpaid child support payments in Canada and we need to do something about it – parents have to meet their obligations – and children must get the financial support to which they are entitled.”
Today, 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.
Not only does chronic unpaid or underpaid child support contribute to women’s economic insecurity, it is also a tool commonly used as a form of court-related abuse to maintain power and control following the breakdown of a relationship.
By dragging out family law matters, financial instability grows, as do legal costs.
Financial abuse continues post-separation by delaying or avoiding the payment of child support and exploiting post-separation financial vulnerability. Child support orders rely on complete financial disclosure to determine payment amounts, but advocates report that abusers will often fail to provide full financial disclosure to coerce their former partners to compromise or agree to less than their entitlement under the law.
By dragging out family law matters, financial instability grows, as do legal costs. If the recipient parent is using legal aid, their abuser may seek to drain the limited hours of a legal aid retainer, leaving their former partner with no legal representation. While child support is regarded as a right of the child, it’s the child’s primary carer parent who must proactively seek that support. In many cases, this can be an ongoing, years-long ordeal.
The family justice system is not neutral and must recognize structural power imbalances that allow abusers to manipulate systems to the detriment of their less financially stable ex-partners, overwhelmingly women.
Photo Credit: Tina Floersch on Unsplash
Over the span of a year, the Supreme Court of Canada will have heard two child support cases from two different provinces, demonstrating the need to change how child support is considered under legislative frameworks as well as in the court’s analysis.
This past November, we intervened in Michel v Graydon, a case about whether the court has discretion to order retroactive child support when the child is no longer seen as a dependant under the definition in BC’s Family Law Act (“FLA”). We argued in favour of a broad and generous interpretation of the FLA 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.
The Supreme Court of Canada is also about to consider child support under the Divorce Act, in Colucci v Colucci, a case in which West Coast LEAF and LEAF are jointly intervening. 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 now the case is heading to the Supreme Court of Canada.
The regime for assessing and recouping child support is flawed. It incentivizes paying parents to conceal their income or delay making payments, and it puts the burden on the recipient parent to seek information from the paying 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, where each interaction between ex-partners increases the risk of further violence.
With the recent legal attention on child support at the Supreme Court of Canada, we are hopeful that BC and Canada will take steps to make the family justice system and child support more equitable and accessible.
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 are hopeful that BC and Canada will take steps to make the family justice system and child support more equitable and accessible. We’ll continue to advocate for equality and justice for caregiving parents and their children.
Photo Credit: Artem Maltsev on Unsplash
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Amelia Roth is an articling student at West Coast LEAF. She recently completed a secondment at Rise Women’s Legal Centre, where she had the opportunity to work with and learn from advocates in family law.