Child support obligations for international families: how much should be paid when the recipient of support lives outside of Canada, in a country with a lower cost of living?
In this blog post we will discuss a recent case which highlights support obligations when the recipient lives outside of Canada in a country with a reduced cost of living.
In Fonseca v. Albornoz, (unpublished) Justice Kachur dealt with a family where child support had been accumulating for over 10 years.
The parties separated in 2008 and shortly thereafter the father consented to the mother moving to Venezuela with the parties’ child. The father remained in Canada working as an engineer up until 2019 when he was laid off. At the time of the court appearance the father was working at the running room and at AHS. The mother worked in Venezuela as a doctor.
In 2011, as a part of recalculating child support the mother was ordered to provide her financial disclosure, which she did not. The father brought an application for contempt which was granted. The father brought a further application for parenting and as a part of the application was successful in obtaining a stay on his child support payments until such time as the mother disclosed her finances and parenting arrangements could be resolved. The mother was also barred from further applications until she has complied with disclosure and made arrangements for the father to have parenting time.
In 2013, a detailed order for parenting was granted.
In 2015, the mother made an application for child support which was adjourned sine die. At the same court appearance, the mother’s lawyer withdrew from the file as he was getting contradictory instructions from the mother.
In 2020, the mother made a new application for retroactive child support, and ongoing child support. As a part of providing her financial disclosure, the mother was claiming an income of $3500 CAD, with very little supporting financial information. The parties attended an EICC where ongoing child support was put in place and were then directed to a further court hearing.
At the hearing the mother was seeking backpay of child support to 2011.
Considering the father’s income over the years, the total amount of child support arrears amounted to $85,584.00.
At the hearing, the father applied for the arrears to be nullified or in the alternative drastically reduced. In support of his case the father argued that the mother’s delay in providing disclosure created the circumstances for the stay, and that this was entirely on her. The father also argued that given the conversion of Canadian dollars to Venezuelan bolivars that the arrears payment to the mother would result in a massive financial windfall.
In addressing the retroactive child support owing, Justice Kachur clarified the difference between extinguishing and staying child support obligations, noting that "a stay means that the payor remains contingently liable for child support.... [the stay] simply paused the father’s child support obligation; it did not extinguish it."
Justice Kachur commented that this was very clearly not a case of a payor seeking to avoid their obligations. Rather, she found that the father had paid support up until the stay order, and the accumulation of arrears was a direct result of the mother’s failure to provide her disclosure--one of the necessary requirements for the stay to be lifted.
Justice Kachur applied the Supreme Court of Canada’s framework set out in in Colucci v. Colucci, 2021 SCC 24 and found that the mother's explanations for the delay were not compelling and there was no evidence that the child experienced hardship during the 10 years of the stay was in place. However, in his materials the father acknowledged that he had the ability to pay the arrears.
In discussing the application of Canadian child support law to situations where recipients live in poorer countries, Justice Kachur noted the following:
- The Federal Child Support guidelines contemplate the calculation of non-residents, but only in situations where the recipient spouse resides in Canada
- In some cases where a recipient and child reside outside of Canada, the issues of jurisdiction, and forum conveniens have been raised- but this wasn’t something that either party brought up in the case before the court
- Alberta had jurisdiction under ss. 4(1) and 5(1) of the Divorce Act because the father is ordinarily resident in the province at the commencement of the proceedings, and both parties accepted attorned to the Alberta jurisdiction
- The conversion rate meant a possible transfer of wealth however the Divorce Act does not give the court discretion to refuse to apply the guidelines. In fact the language of the Federal Child Support Guidelines is mandatory, stating that where the court makes an order for child support it “shall” be in accordance with the guidelines
- Child support is undoubtedly the right of the child, not the right of a parent. The main purpose of child support is to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation.
- However Canadian law (DBS) makes it clear that the purpose of child support is to provide a discernible benefit to the child. Child support is not meant to be a wealth transfer or windfall to a recipient parent
As a creative solution to balancing the payors obligation versus the desirablility to avoid a wealth transfer to the mother, Justice Kachur ordered the arrears to be paid into a trust account for the benefit of the child. Justice Kachur further directed that the funds be used for post-secondary education outside Venezuela should the child so choose, with any unused amount to be released to the child at age 25.