November 23, 2020 by Robert Franklin, JD, Member, National Board of Directors
At first glance, it’s hard to say whether this article is simply a puff piece for Ontario lawyer Richard Gordner or information about an important issue (Windsor Star, 11/17/20). Truth to tell, it looks like both. After all, the piece features not one, not two, but three photos of Gordner preening for the camera and begins thus:
Windsor lawyer Richard Gordner beat the odds when the Supreme Court of Canada agreed to hear arguments on a child support case that could be precedent setting across the country.
As some criminal lawyers I know often say, “Good ad.”
But, if one slogs beyond the breathless references to the lawyer, it turns out the case he’s involved in actually is quite important. It’s about child support arrears and under what circumstances they can be reduced or negated entirely due to the loss of income on the part of the non-custodial parent.
Gordner represents Felice Colucci, Lina’s ex-husband, who was ordered in 1996 to pay his former wife $115 a week per child in support for their two daughters.
“By about 1999, his income had changed dramatically,” Gordner said. “He was laid off from his job so his income dropped.”
Colucci says he asked his wife for a decrease to those payments but she declined his request.
That’s not surprising because Canadian law makes it quite difficult for a child support obligor to get a downward modification of an existing order or a reduction of arrears. Most importantly, the entire child support system assumes that a person like Colucci, who’s just lost his job and can’t pay $230 per week, simultaneously can pay huge sums to a lawyer to file the appropriate proceeding in court, dicker with the other lawyer, make appearances in court and possibly get the contested amount reduced. For example, Colucci is now a general laborer about whom his lawyer says this:
“My guy’s 64 years old. He works in a greenhouse for minimum wage,” Gordner said. “How’s he going to pay? He’s got nothing. How’s he ever going to pay $175,000? It’s absurd. He can never pay it. It’s impossible. He’ll be long dead before that’s ever paid.”
That $175,000 is the amount the Province of Ontario claims Colucci owes his ex-wife (not his two children who are now adults) as back child support.
So the first problem with this case and others like it is that the law engages in a fiction – that the obligor, who can’t pay the small amounts he periodically owes, can nevertheless pay large sums to a lawyer. Gordner, to his great credit, is handling this case pro bono, but, needless to say, that’s far from the norm.
Meanwhile, this article and the case it describes give an idea of just what’s expected of a person seeking downward modification or reduction in arrears (Feigenbaum Law, 5/2/19).
However, the court found that the accumulation of arrears without evidence of a past inability to pay did not constitute a change in circumstances. Additionally, a present inability to pay did not by itself justify a change order. The court explained:
“Such an order should only be granted if the payor can also prove a future (emphasis added) inability to pay.”
In short, a person in Colucci’s position is required to produce evidence in court sufficient to convince a judge that he/she suffers under a past, present and future inability to pay. Needless to say, that takes a lawyer and probably an accountant to accomplish. How’s a guy like Colucci going to afford that?
And in any case, what does a “future inability to pay” have to do with past arrears? Yes, it’s possible that an obligor who lost his job has, on the eve of the trial, just acquired a new one that pays enough to meet his child support obligations, but I suspect that rarely happens. And if it has happened, why not place the onus on the recipient to simply ask the obligor a question or two the answers to which will provide the court the necessary information? Why should every obligor face the virtually impossible burden of in some way “proving” that, at no time in the conceivable future will he/she be offered a well-paying job, will a rich uncle die or will other possible sources of income miraculously become available?
In the previous case, the court went on to state the variables to be considered by courts in these cases:
1. The nature of the obligation to support, whether contractual, statutory or judicial;
2. The ongoing needs of the support recipient and the child;
3. Whether there is a reasonable excuse for the payor’s delay in applying for relief;
4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;
5. The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient;
6. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears; and
7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears.
In short, essentially every one of those considerations fairly shouts “No reduction!” Does the child have an “ongoing need” of support? Of course he/she does. Could a reduction in support occasion a hardship to the child or the custodial parent? Of course it could. And of naturally, while any delay – in payment, cooperation with child support authorities, provision of financial information, etc. – by the payor is held against him, delay on the part of the recipient “even a long delay” will have no effect.
According to the provincial court, the deck is clearly stacked against the obligor.
And it is that stacked deck that attorney Gordner wants the Supreme Court of Canada to set right. And the fact that the Supreme Court has agreed to hear the case is why it’s such an important one. Supreme Court decisions are binding on all the courts in the country, so whatever the high court decides in this case will have far-reaching consequences.
Let’s hope the justices are as impressed with Richard Gordner as is the Windsor Star.