Should Child Support be Varied when the Payor Parent is Incarcerated?

The Canadian family law meets individuals and families at the most vulnerable times in their lives, including when one parent is incarcerated. This begs the question, if there is an existing child support order, and the payor parent or spouse is subsequently incarcerated, should the payment amount be reduced to reflect the payor’s actual income while incarcerated?

According to the recent Court of King’s Bench decision of TM v ZK, 2021 ABQB 588 – yes!

The question before the Honourable Madam Justice B.L. Bokenfohr was whether child and spousal support arrears should be retroactively reduced for the period that the payor father was incarcerated for sexually abusing his stepdaughter. During the father’s two-and-a-half-year incarceration, child support accumulated to $146,420 based on his pre-incarceration income of $83,229.11.

The mother took the position that the father should have to pay the full debt in order to be held accountable for his crime. Justice Bokenfohr however, held that support arrears should be adjusted to reflect the father’s actual income during incarceration as per the Supreme Court of Canada decision in Colucci v Colucci, 2021 SCC 24.

Justice Bokenfohr eloquently explained her decision at para 3 of her judgement as follows:

…Child support is an income-based regime. It is the purview of the criminal justice system to determine the appropriate punishment for criminal offences. Respect for the role of a sentencing judge and their responsibility to impose a fit sentence demands that the public’s reprobation of a particular offence not extend to blurring the lines between a payor’s sentence and child support obligations.

Recognizing the controversial nature of this decision however, Justice Bokenfohr called for governmental action saying:

This case highlights a significant public policy issue. Child victims of abuse, whether it be sexual, physical, or otherwise, may be reluctant to come forward if doing so will be financially devastating for their family. Children should not be placed in a position of having to choose between their safety and their financial wellbeing and that of their family. Children should not have to worry about the financial consequences of reporting abuse. This is an issue that demands government attention and action. 

In Colucci, the Supreme Court clarified the law with respect to varying and rescinding support arrears. Colucci reaffirmed that child support is an income-based regime that fluctuates with the payor’s income.

Justice Bokenfohr outlined the Colucci framework as follows:

• A payor seeking a downward retroactive change must first show a past change in circumstance. This will often be a material change in income. The decrease in income must be “significant and have some degree of continuity, and it must be real and not one of choice” (para 61).
• The payor must disclose sufficient reliable, accurate, and complete evidence for the court to determine when and how far their income fell, and to ascertain whether the change was significant, long lasting, and not one of choice (para 62).
• Once the applicant establishes a change in circumstances a presumption is triggered that support will be varied back to effective notice, up to three years before formal notice (paras 71 and 80).
• Effective notice must include sufficient information to allow the recipient to assess the situation, adjust expectations, make necessary changes to lifestyle and expenditures, and make informed decisions (para 88).
• The period of retroactivity is presumed to extend no further than three years before the date of formal notice (para 91). The court retains the discretion, however, to depart from the presumptive date of retroactivity where “the result would otherwise be unfair in the circumstances of a particular case” (para 96).
• If a retroactive variation is appropriate, the Guidelines apply in determining the amount of child support (para 109).

After applying this framework, Justice Bokenfohr was satisfied that this was an appropriate circumstance in which retroactive adjustment of child support was justified. The following facts were relevant to her decision:

• The father’s incarceration was a “change in circumstances” that was not “trivial or short lived”.
• The mother had notice of his incarceration.
• The father tried and failed to maintain legal counsel for his family law matter while incarcerated.
• The father made efforts to regain employment once released.

Justice Bokenfohr does caution, however, that a period of incarceration in and of itself may not meet the threshold for the Colucci analysis demonstrating a change in circumstances. She also addressed the question of whether the reason for incarceration was relevant to the determination, citing Bernard v Bernard, 2008 ABQB 190 for the rule that if the individual is incarcerated for failing to pay support, there are obvious public policy reasons for not reducing arrears while they are incarcerated.

Justice Bokenfohr rejected the argument that a payor who is incarcerated is the “author of their own misfortune” and the accumulation of arrears is a natural consequence of their criminal conduct. Depending on the circumstances, the door is open for the recipient to argue that income should be imputed to the payor during their period of incarceration.

In closing Justice Bokenfohr reminds us all that “The child support regime aims to ameliorate the consequences arising from separation, not all hardship”, and it is essential that clear boundaries between the family law and criminal law are maintained.