In an Ontario case called Ashley v. Ashley, the court agreed to reduce the amount of child support arrears a father had to pay, because of his alcoholism and anxiety.
The father had never made any child support payments whatsoever, despite being ordered to do so in 1993. The child support arrears since that time totalled $93,000. The mother had been on social assistance in the years after 1993, largely because of the father’s default in paying support and because she was unable to work due to certain medical conditions.
The father’s complete failure to pay had stemmed from his acknowledged alcoholism, which spanned more than 20 years. Although at the time of the original 1993 order he had been able to work as a carpenter to some extent, he had since become completely debilitated by his own alcoholism and had not worked full-time for many years. He also claimed that he suffered anxiety attacks and chest pains, which he felt were caused by the stress of the court proceeding and the steps taken to enforce the child support arrears he owed.
In short, he asserted that his medical condition had deteriorated since 1993, that he was wholly unable to work, and that the prospects of him ever being able to work in the future were bleak. Relying on this change of circumstances, he applied to the court for an order that he should not be liable for any of the $93,000 in child support arrears.
The court reviewed the father’s circumstances. It accepted that he had indeed been an alcoholic for many of his 49 years, and had not worked full-time for most of the years since the original order was made. His income as filed with tax authorities was zero for virtually 11 years straight; in other years he earned only very minimal amounts. He obtained liquor in exchange for doing odd jobs for friends, and lived in a house owned by a common-law partner, from whom he received money for entertainment purposes. He contributed to her household by doing repairs and minor improvements on her home.
The court also recognized that alcoholism is a disease, and did not fault the father for having it. It conceded that his ability to earn income was directly impaired by his alcoholism, and that his circumstances had deteriorated over the years since the first order. Indeed, he would never be capable of earning income until he dealt with his addiction.
Still, the court criticized the father for relying on it to resist paying child support arrears on the one hand, while repeatedly rejecting the recommended treatment for alcoholism, on the other. His refusal to obtain treatment – while within his legal right – nonetheless disregarded the rights and interests of his children.
In the end, however, the court was forced to take a pragmatic approach: to leave the current arrears order in place would be “artificial, ineffective, and ignor[ing] reality,” it said. Simply put, it could not force the father to repay $93,000 when his alcoholism left him with no realistic ability to earn anything close to that amount, either now or in the future.
The court therefore agreed to vary the initial order, but on specific terms: First of all, the arrears were rescinded except for $20,000, which the father still had to pay. He was ordered to start paying the first $10,000 commencing in July of 2010; however, his obligation to pay the remaining $10,000 was suspended until March of 2011, at which point he had to prove that he had attended an alcohol treatment program. If he failed to attend, then was obliged to pay off the $10,000 in monthly instalments starting immediately.
There are numerous factors that can affect the obligation to pay child support. Russell Alexander and our staff are available for consultation on this and other family law topics.
For the full text of the decision, see Ashley v. Ashley, 2009 CanLII 69101 (ON S.C.) http://bit.ly/exZt2y