Costello v. Costello – Child support not varied where loss of employment was a result of payor’s criminal acts

This case involves a motion to change support based on the father’s termination from his employment as a result of two DUI convictions.

BACKGROUND

The parties were married in 1995 and separated in 2005. They had two children of the marriage, aged 15 and 17.

Upon separation, the parties entered into a Separation Agreement which provided for child support and spousal support payable by the father.

In 2008, the father was charged with a drinking and driving offence. He subsequently took a medical leave of absence so that his employer would not find out about the outstanding criminal charge.

In 2009, the father was charged with a second drinking and driving offence. As a result of the charge, the parties entered into an Amended Separation Agreement requiring the father to pay support in accordance with the Child Support Guidelines based on his income of $70, 941.00 and suspending his spousal support obligation until further review.

Subsequent to the Amending Agreement, the father was terminated from his employment as a result of his criminal convictions.

In 2011, the father brought a motion to vary his child support obligation retroactive to July 2009 when he lost his employment. He requested an imputed income of $25,500 and to pay child support of $382 per month.

ANALYSIS

At the outset of its analysis, the court set out the relevant legal principles. In particular, the court stated that the prerequisite to any variation of an existing support order is the finding that there has been a change in circumstances since the order was made that would result in a different child support order. As such, the onus rested on the father to prove that his financial circumstances had changed since the Amending Agreement was entered into.

Among several reasons for dismissing the motion, including the father’s underemployment and habitual failure to provide financial disclosure, the court adopted Czutrin J’s reasons in Luckey v. Luckey and held that children should not have to pay the price for a parent’s loss of employment, particularly where the loss is for reasons within that parent’s control.

In particular, Justice Zisman stated: “I find that as the father lost his job because of his criminal behaviour, that occurred not just once but twice, he is the author of his own destiny and he should not be able to rely on his own misconduct as an excuse to avoid his obligations to his children. Even that I accept that the father did not commit these offences to avoid his obligation to pay child support, the court should not condone such conduct”.

In addition, the court took pains to point out that when the father entered into the Amending Agreement, he must have known that there was a serious risk of losing his job as he went to great lengths to cover up his first offence.

While the court in this case towed the jurisprudential line in refusing to vary child support based at least in part on its unwillingness to condone the criminal behaviour of family law litigants, the case and others like it (for example, Myatt v. Myatt) raise important questions with respect to the impact of drug/alcohol addiction on support payors and the resultant content of their support obligation.

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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