Ashely v. Ashley – Alcoholism and Ability to Pay

In this case, the father applied for a variation of a 2003 court order requiring him to pay retroactive Child Support to the mother. This 2003 order held the father responsible for $600.00 per month in Child Support, starting in June of 1993. This amounted to approximately $93,000.00. Ongoing Child Support was not an issue because the children are now grown.

There were three parties to this matter: the father, the mother, and the Ministry of Community, Family, and Children’s Services. The Ministry was a party to this case because the mother received social assistance while the father should have been paying Child Support. This means that the Ministry can argue that the father must pay the Ministry back for the money it gave to the mother when the father should have been supporting the children.

The father argued that he should not have to pay any Child Support arrears. The mother argued that the father should pay $53,446.00 in Child Support arrears and the Ministry argued that the father should repay to them $39,012.00 in arrears, in addition to the amount owing to the mother.

In order for court to vary an order, there must be a change in circumstances. The father argued that his suffering from alcoholism and anxiety constituted a change in circumstances. He argued that, due to these ailments:

  1. he can no longer work, so he cannot pay the money that is owed, and
  2. since the 2003 order was made, he could only work occasionally. So, based on the little income that he did earn, he should not be required to pay $600.00 per month.

Justice Kane agreed that there was a change in circumstances because, due to the father’s alcoholism, his ability to work had lessened greatly since 2003. Justice Kane understood that the father’s ability to pay Child Support was dependant of his ability to work, which, in turn, was dependant on his recovery from alcoholism.

There are two sides to this issue. On the one hand, it is unfair and unreasonable to expect someone who has little to no income to pay $93,000.00. However, it is equally unfair to relieve someone of a debt, which is the result of his/her own refusal to get treatment for a disease. In Justice Kane’s words:

“To leave the current arrears in order to force their repayment via enforcement proceedings, is artificial, ineffective and ignores reality. To eliminate all arrears and permit Mr. Ashley to ignore his obligation to pay child support for some 13 years while he continued to refuse medical treatment for his disease, disregards the rights and needs of his children.”

Justice Kane resolved this ambivalence by ordering that the father’s arrears be conditional, at least in part, on his participation in an alcohol treatment programme.

In the end, Justice Kane ordered that:

  1. All arrears resulting from the 2003 order are rescinded, except for $20,000.00;
  2. Half of this $20,000.00 is suspended until March 1, 2011. If the father does not prove that he has attended an alcohol treatment programme for 12 months by March 1, 2011, then he will be required to pay this $10,000.00 in $200.00 monthly instalments ($100.00 to the mother and $100.00 to the Ministry); and
  3. The other half of this $20,000.00 will be paid in $200.00 monthly instalments ($100.00 to the mother and $100.00 to the Ministry) commencing July 1, 2010.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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