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Should Alcoholic, Unemployed Father Be Forgiven $40,000 in Support Arrears?

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Should Alcoholic, Unemployed Father Be Forgiven $40,000 in Support Arrears?

In tough economic times, it is not uncommon for a paying parent to rack up significant unpaid child support arrears, especially when there is some personal crisis or unexpected hardship on the job-front. One skipped payment leads to two…. and the arrears continue to accumulate, sometimes over a period of a year or more.

In such circumstances, paying off the outstanding arrears becomes a huge burden to the paying parent, and seems like an insurmountable challenge.

But do courts sympathize?

In an Ontario Court of Appeal case called Defrancesco v. Coutu, the issue was whether a father should be entirely relieved of having to pay $40,000 in unpaid child support arrears that had accumulated over almost a decade. He was an alcoholic and had trouble holding down a steady job. Unemployed and on public assistance for most of the time since the original court order, he was not even at a subsistence level of income. To further compound his difficulties, he was disentitled from receiving unemployment insurance benefits due to various circumstances (which included secretly working for a cousin while improperly claiming workers’ compensation benefits, and quitting a job due to a personality conflict with his boss).

He applied to the court to have his $40,000 liability for support arrears waived, claiming that his personal circumstances had changed significantly since the support order was first made. The child’s mother objected, pointing out that even when the father had money to make support payments or pay off some arrears, he did so only involuntarily; she frequently had to chase him down for the money.

The Court of Appeal declined to relieve the father of his obligation. Although he clearly did not have the money to pay off his arrears now, this did not mean he would not have the money in the future. The court was also troubled by the father’s unwillingness to voluntarily support his children.

In coming to this conclusion, the court was entitled to look at the total picture, which included:

• the nature of the father’s obligation to pay support (i.e. by contract, by legislation, or by court order);

• his ongoing financial capacity to pay;

• the ongoing financial need of both the mother and the child;

• whether there was any unreasonable and unexplained delay on the mother’s part in seeking the arrears;

• whether there was any unreasonable and unexplained delay by the father to ask to be relieved of his obligation as to arrears.

Despite the father’s unfortunate circumstances, there was no legal basis to rescind the arrears. However, the court was not entirely unsympathetic: given the father’s situation, his going-forward child support obligation was adjusted downward to take into account his dire financial situation, alcoholism and bleak prospects for steady employment.

For the full text of the decision, see:

Difrancesco v. Couto, 2001 CanLII 8613 (ON CA) http://canlii.ca/t/1f7kx

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.