Release: Supreme Court of Canada improves child support law, addressing economic insecurity of single mothers and their children

The Supreme Court of Canada released its decision in Colucci v Colucci today, setting out much-needed clarifications in child support law that will make it easier for single mothers to receive the child support that they are owed. The Women’s Legal Education and Action Fund (LEAF) and West Coast LEAF are thrilled that the Court adopted many of the arguments that they set out in their joint intervention in the case.

“The reality is that there are billions of dollars of unpaid child support in Canada, most of which is owed to single mothers and their children,” says Kate Feeney, West Coast LEAF’s Director of Litigation. “Today, the Supreme Court has set out a legal test that recognizes this reality, and takes steps to address it.”

This case concerned a father who, after 16 years of actively evading his child support obligation, owed the mother of his children over $170,000. Despite the father’s delinquency, he successfully asked a court to reassess his income over the entire 16-year period and subsequently reduce his child support arrears. The Court of Appeal for Ontario overturned this decision. The Supreme Court of Canada revisited what legal test courts should apply when deciding whether to retroactively decrease a parent’s child support obligation or cancel arrears.

On these issues, the Supreme Court unanimously adopted West Coast LEAF and LEAF’s proposed legal framework, including the principle that payors must provide full documentation of their income information to support a request for a retroactive change to the child support that they owe. The fact is that only the payor knows when his income has increased or decreased — accordingly, it is his responsibility to provide evidence of that income fluctuation.

“The Supreme Court of Canada has sent a clear message to payors who claim that their income has gone down that they have to notify recipients of this fact promptly and with concrete proof,” says Pam Hrick, Executive Director and General Counsel of LEAF. “We hope that this will significantly help women as they deal with delinquent payments.”

The Supreme Court’s new framework for child support orders is a victory for single mothers and their children. West Coast LEAF and LEAF are grateful to the case committee members that guided their intervention: Natasha Bakht (University of Ottawa); Vicky Law (Rise Women’s Legal Centre); and Deepa Mattoo and Tamar Witelson (Barbra Schlifer Commemorative Clinic). They would like to thank Jennifer Klinck and Joshua Sealy-Harrington (Jursistes Power | Power Law) for their work as pro bono counsel.

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About the Women’s Legal Education and Action Fund (LEAF)

The Women’s Legal Education and Action Fund (LEAF) is a national not-for-profit that works to advance gender equality in Canada through litigation, law reform, and public legal education.

Since 1985, LEAF has intervened in more than 100 cases that have helped shape the Canadian Charter of Rights and Freedoms, responded to violence against women and gender diverse people, pushed back against discrimination in the workplace, allowed access to reproductive freedoms, and provided improved maternity benefits, spousal support, and the right to pay equity.

LEAF understands that women and gender diverse individuals in Canada experience discrimination in different ways, and builds partnerships across communities to inform our understanding of how race, gender identity, sexual orientation, (dis)ability, class, and other intersectional identities underlie legal structures that perpetuate inequality, discrimination, and harm.

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.