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Income loss due to crime no reason to cut child support: judge

|Written By Yamri Taddese

When it comes to paying child support, courts won’t sympathize with parents who are the authors of their own financial demise through criminal activity, a family court judge recently ruled this month.

In Rogers v. Rogers, Superior Court Justice Alex Pazaratz found an Ontario father who lost his well-paying job due to criminal convictions couldn’t use his reduced income as an excuse to stop paying child support.

The father, Scott Rogers, “is intentionally under-employed. His intentional behaviour caused him to lose employment and limit his opportunities to find replacement employment,” wrote Pazaratz.

Rogers drove without a licence for 10 years and was convicted of driving while suspended 12 times, according to the ruling. He kept driving after each conviction until “it all caught up with him” in February 2011, wrote Pazaratz. The court sent him to jail for eight months, the judge noted.

Rogers’ employer refused to take him back after he got out of jail, forcing him to take up another job that pays far less than his previous income of $74,500. Rogers also accumulated convictions for uttering threats and harassing his ex-wife.

According to the judge, the father “made conscious decisions to do things — illegal things — with the full knowledge that his reckless and anti-social behaviour would make him unavailable (let alone, unacceptable) for employment. The net result is the same as if he’d handed in his resignation.”

The father of two had gone to court with an application to stop paying child support once his income plummeted to an expected $33,000 in 2013. But Pazaratz said his children and ex-wife shouldn’t have to pay for his bad decisions.

“I find the applicant is solely responsible for the financial difficulties he now submits as the basis for significantly reducing his support obligations. His unemployment (and eventual underemployment) did not arise through mix-up, honest mistake, bad luck, or even isolated error in judgment,” wrote Pazaratz.

“The applicant knowingly and intentionally made very bad decisions. He broke the law — over and over again. His choices have resulted in unquestionably painful consequences. But why should the respondent and her children share any portion of that pain? Why should a support recipient suffer from a payor’s misconduct?”

The Ontario Court of Justice decided similarly in Costello v. Costello. In that case, a father sought reduced support for his two children after losing his job following run-ins with the law.

Toronto family lawyer Bill Rogers calls the decision a “really good reminder” for both family lawyers and litigants of how the courts treat parents who lose their jobs through their own actions. “It’s basically like quitting your job,” he says.

According to Pazaratz, the definition of intentional doesn’t require establishing that the father lost his job just so he could stop paying child support. “There is no requirement of bad faith or need to find a specific intent to evade child support. Rather, as the objectives of the child support guidelines state, parents have a joint and ongoing obligation to support their children. Imputing income is one method which courts can use to give effect to this obligation.”

He added: “The expectations placed on the applicant were not terribly onerous: Obey the law. Support your children. It would be counter to public policy to allow the applicant to deliberately breach the first obligation and then use his own misconduct to avoid the second.”

The applicant may have to cover the child support through pension money, wrote Pazaratz, who noted he could also draw from the funds he’ll receive from the sale of the matrimonial home.

Applications to reduce support are common in family law, says lawyer Erin Crawford of Epstein Cole LLP. But, she notes, parents generally seek reductions due to their inability to work for reasons other than crime. “The criminal aspect of this case is what makes it interesting,” she says, adding the judge “set out the test of intention pretty well.”

Pazaratz clarified that the premise of intentional demise doesn’t apply when, “through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.” In his view, the specific circumstances of the applicant made his actions akin to quitting his job.

“In some cases, it is difficult to determine if a payor is a victim of unfortunate financial circumstances or whether he or she is the author of their misfortune,” wrote Pazaratz.

“But in the applicant’s case, there is no uncertainty as to cause and effect. He may not have quit his job. But he created and controlled the circumstances under which his job was terminated.”

The court’s reaction could have been different had the applicant’s legal troubles been crimes of passion, says Crawford.

“This is a very specific case. It’s not like anybody who engaged in criminal activity is going to have the same results. I think this guy engaged in a pattern of conduct.”

Rogers of Rogers Family Law agrees. “In this case, it was just so bad what he did. And it didn’t help that he was also pleading guilty to harassment and uttering threats.”

Neither of the two litigants, who represented themselves, complied with the separation agreement, noted Pazaratz, who also denounced the applicant’s ex-wife, Linda Rogers, for not sharing information about expenses and income.

“This was a difficult case involving extremely bitter self-represented parties, neither of whom did everything they were supposed to do,” wrote Pazaratz.

  • dhubin
    This is just another way in which divorced or never-married fathers are treated differently than married fathers. If a married father, through his intentional illegal actions, faced a radically reduced income, no court would mandate that he has to support his wife and children at the same level he did before the loss of income. His bad behavior would result in an economic loss to his wife and children and there would be no state action to prevent this. Divorced and never-married fathers have, it appears. legal obligations to their children and to their children's mothers that no married father has.

    The enforcement of these legal obligations is, furthermore, counterproductive. You cannot get blood from a stone. Fathers ordered to pay more in child support than they can afford will fall into arrears and either fall into the underground economy and out of their children's lives, or wind up back in jail for failure to pay child support.
  • Moxi Sahi
    very educative ,helpful and informative for Family Law Practitioners
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