On August 10, 2020, LEAF and West Coast LEAF filed written arguments, also called a factum, in the case of Colucci v. Colucci at the Supreme Court of Canada.
In our factum, LEAF and West Coast LEAF, represented by Jennifer Klinck and Joshua Sealy-Harrington (Power Law), propose a legal framework for child support orders that takes as its starting point the reality that unpaid child support contributes to the feminization of poverty. The feminization of poverty is a term for the economic disadvantages faced by women that are both the result of and are perpetuated by systemic discrimination.
By centering women and children’s substantive equality rights, the framework that we propose would ensure that judges’ child support orders are fair.
This case, on appeal from Ontario, is about a father who – over 16 years – chronically underpaid child support to a mother, resulting in a debt of over $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 for failing to apply a 2006 Supreme Court decision, DBS v. SRG, which involved retroactive increases of child support obligations. The Court of Appeal for Ontario decided that DBS should apply to applications like the one that Mr. Colucci made as well, which was an application for a retroactive decrease of child support obligations.
The Supreme Court of Canada will have the last word on whether this decision by the Court of Appeal for Ontario was correct. 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
LEAF & West Coast LEAF’s argument
LEAF and West Coast LEAF have 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. 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. Given all this, every unpaid child support instalment both contributes to women’s socioeconomic inequality and deepens child poverty.
“Court decisions do not take place in a vacuum,” says Megan Stephens, Executive Director and General Counsel of LEAF. “Courts need to understand the realities of child support underpayment to better appreciate how varying someone’s outstanding child support debt may further exacerbate women’s and children’s economic marginalization.”
“Unpaid child support has a direct impact on the economic disadvantages faced by women, disadvantages that are perpetuated by structural and systemic discrimination,” says Kate Feeney, Director of Litigation at West Coast LEAF. “This continues to contribute to the feminization of poverty.”
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.
Read LEAF and West Coast LEAF’s factum here.
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 applied for leave to intervene, as well as our announcement when the Supreme Court granted leave to intervene.
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 the first and only organization in BC dedicated to using the law as a strategy to work towards an equal and just society for all women and people who experience gender-based discrimination. Since its founding in 1985, West Coast LEAF has helped bring about some of Canada’s most important feminist victories for reproductive rights, workplace standards, fairness in family law, legal protections from sexual harassment, and more.
For media inquiries, contact:
Jennifer Klinck, Partner
Cee Strauss, Staff Lawyer
Women’s Legal Education and Action Fund (LEAF)