On November 4, the Supreme Court of Canada heard arguments in a family law case from Ontario that will significantly affect women and children’s poverty. LEAF and West Coast LEAF, represented pro bono by Jennifer Klinck and Joshua Sealy-Harrington (Power Law), intervened in the appeal to highlight the social reality that child support in Canada is chronically underpaid and overwhelmingly gendered. We went to court to propose a framework for deciding applications to retroactively modify child support orders that will account for these social realities.
This case is about a father who, for 16 years, repeatedly underpaid child support to a mother, resulting in a debt of more than $170,000. During that time, the father failed to disclose his income, rarely made voluntary support payments, and absconded twice without notice to his family or the Family Responsibility Office overseeing his support—first to the United States, and then to Italy. After his children no longer qualified for ongoing support because they were grown, the father applied to substantially rescind his debt. The Superior Court of Justice granted the father a retroactive reduction in child support arrears, reducing his debt to $41,642.
The Court of Appeal for Ontario overturned this decision, and now, the Supreme Court of Canada will have the last word. In doing so, it will decide the factors that should be taken into account when a judge is deciding whether to retroactively reduce, or retroactively increase, the child support that someone owes. This will have a significant impact on whether children and their caregivers are provided with the support they need and are legally entitled to receive.
LEAF & West Coast LEAF’s argument
LEAF and West Coast LEAF intervened in this case to provide the Supreme Court with an accurate picture of how child support is paid (or not paid) across Canada. The reality is that child support is dramatically underpaid and overwhelmingly gendered. The economic destinies of women and children are intertwined, as most children continue to live with their mothers after relationship breakdown. In the vast majority of cases, it is the father who is supposed to pay child support to the mother, and it is the father who fails to do so. Our intervention also highlights the interconnectedness of child support and intimate partner violence; in abusive relationships, financial abuse and threats are often present.
“Unpaid child support is a key driver of the feminization of poverty,” says Kate Feeney, Director of Litigation at West Coast LEAF. “The bottom line is that single mother-led families are missing out on billions of dollars of unpaid child support, money which could be paying for essentials such as safe and secure housing, heathy food, and warm clothing.”
Our arguments are directly in line with two recent decisions of the Supreme Court that draw connections between the gendered nature of caregiving and women’s and children’s poverty. In Michel v. Graydon, another judgment about child support that was issued by the Supreme Court in September 2020, Justice Martin (concurring) wrote that “[t]oday, women still bear the bulk of child care and custody obligations and earn less money than men, so women’s poverty remains inextricably linked to child poverty”. And in Fraser v. Canada (Attorney General), decided by the Court in October, Justice Abella’s majority decision unreservedly made this link as well, stating that “the uneven division of childcare responsibilities is one of the ‘persistent systemic disadvantages [that] have operated to limit the opportunities available’ to women in Canadian society.”
In Colucci v. Colucci, LEAF and West Coast LEAF have proposed a simple framework to the Court that will allow judges to take women and children’s substantive equality into account each time they are asked to retroactively modify a child support order. We argue that in addition to being fair and socially just, taking women and children’s substantive equality into account is required to fulfill the objective of the child support regime – providing for children’s welfare.
“Child support issues rarely make their way to this court due to the high cost of appeals and the comparatively low value of awards,” co-counsel Jennifer Klinck said at the hearing. “With that in mind, LEAF and West Coast LEAF intervene to invite this court to simplify the framework governing child support variations.”
We eagerly await the Court’s decision in Colucci. We hope to see a re-developed child support regime that will go some way to addressing women’s substantive inequality in family law matters.
Link to webcast of hearing at Supreme Court of Canada, November 4, 2020, 9:30 a.m. here – Jennifer Klinck, co-counsel for LEAF & West Coast LEAF, appears at 2:05:18 of the webcast.
LEAF’s interventions are guided, informed and supported by a case committee composed of academics and practitioners with expertise in the relevant issues. We are very grateful to the Colucci case committee members (in alphabetical order): Natasha Bakht (University of Ottawa); Vicky Law (Rise Women’s Legal Centre); and Deepa Mattoo and Tamar Witelson (Barbra Schlifer Commemorative Clinic).
For more background and judicial history of the case, see our earlier announcement when LEAF and West Coast LEAF filed written submissions in the case in August.
About Women’s Legal Education and Action Fund (LEAF):
The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, LEAF has intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms.
About West Coast LEAF:
West Coast LEAF is a non-profit organization formed in 1985, the year the equality guarantees of the Canadian Charter of Rights and Freedoms came into force. West Coast LEAF’s mandate is to use the law to create an equal and just society for all women and people who experience gender-based discrimination in BC. In collaboration with community, we use litigation, law reform, and public legal education to make change. For more information, visit http://www.westcoastleaf.org.
For media inquiries, contact:
Jennifer Klinck, Partner
Power Law | Juristes Power
Cee Strauss, Staff Lawyer
Women’s Legal Education and Action Fund