Costello v. Costello: Person Paying Child Support is Charged Criminally and Terminated from Employment

Family Law Issue

The father in this family law case sought to reduce his child support obligation where he was terminated from his employment because of two criminal convictions.

Facts

In this family law case, the parties initially entered into a Separation Agreement dated June 1, 2005.

In 2008, the father was charged with a drinking and driving offence. In 2009, the father was charged with another drinking and driving offence.

As a result of these charges, the parties entered into an Amended Separation Agreement in April of 2009. Among other items, it outlined that the father pay child support to the mother based on an income of $70,941.00 based on the Federal Child Support Guidelines.

In July of 2009, the father was terminated from his employment because of his criminal convictions.

The father sought to vary his child support obligation in his family law proceeding as of the time he lost his employment.

Conclusion & Analysis of the Ontario Court of Justice

The Ontario Court of Justice determined that it would not vary the father's current child support obligation.

The Court found that in order to vary an existing support order, there must be a change in circumstances since the order was made. In this case, the father had to prove, on a balance of probabilities, that there has been a change of circumstances since entering into the Amended Separation Agreement.

The Court outlined that it may impute income to a parent as it considers appropriate in the circumstances, including where the parent is intentionally under-employed or unemployed (s. 19(1) of the Federal Child Support Guidelines). In imputing income, the Court does not need to determine that there has been a specific intent to evade child support obligations.

The Ontario Court of Justice also confirmed that where a payor parent quits his or her employment for selfish or "bad faith" reasons, the courts will not grant a variation of support because of a material change in the income of the Applicant (Ronan v. Douglas Walsh).

Furthermore, where a payor loses his or her employment because of a criminal conviction, an event within the control of the convicted, the Court should not condone the conviction and should not allow the payor to rely on the loss of employment to reduce his or her arrears of support (Luckey v. Luckey).

In the family law case of Costello v. Costello, the Court found that the father's evidence regarding his income did not contain the appropriate supporting documentation and was "not trustworthy." It would not condone the father's criminal conduct. When the father signed the Amended Agreement he was likely aware that there was a risk of losing his job, and that the father had not made any sincere efforts to find other means of employment since his termination.

As a result, the Court decided not to exercise discretion to vary the father's current support obligation. According to the Ontario Court of Justice, "The father certainly cannot expect a court to exercise its discretion to reduce his child support obligation, when he loses a well paying job because of his own reckless behaviour, fails to abide by court orders for disclosure, fails to provide any proof of any sincere efforts to find alternate employment, and when he is content to work part-time for minimal income."