No material change in circumstance for incarcerated father

In the case of CP v AP, 2024 ABKB 334, Justice Moore rejected a request by a father to change child and spousal support made on the basis that the payor father was in prison. Interestingly, the Justice’s decision was based on the fact that there was no significant change in circumstances. Justice Moore found that even if there were changes, the father’s income could be estimated to be the same as it was before being incarcerated. On this basis, there was no need to modify the support as outlined in the separation agreement from 2014.

The father received a 5 1/2-year prison sentence after admitting guilt to committing sexual offences against his step-daughter. Before being imprisoned, he earned an annual salary of over $600,000 and possessed investments valued at a minimum of $300,000. Additionally, he had other assets and received bonus payments totalling nearly $1 million in that particular year. However, approximately $200,000 of the investment funds had vanished, suggesting to the Justice that the father possessed concealed bank accounts, and his poor financial disclosure hindered the tracking or evaluation of other assets.

Judge Moore determined that the father's imprisonment under these conditions did not qualify as a significant alteration, stating:

”I can easily accept that the Father has not worked since his incarceration and his earnings have certainly decreased. I cannot, however, conclude that the reduction of his income was not one of choice, which is a factor referred to in Colucci.  The conduct which resulted in his incarceration, and corresponding unemployment and loss of income, was voluntarily undertaken by him.  The commission of an offence by the payor against a child should not relieve the payor of their obligations regarding other recipients.”

Despite being enough to reject the father's application, Moore J also determined that even if there was a significant shift, the father's income before being imprisoned should be attributed to him based on the Peters v Atchooey framework.

“Based on the facts before this Court, I find that the Father was intentionally under-employed and unemployed as he was imprisoned due to his reckless criminal conduct. This is not the same as blaming a spouse for their conduct. Additionally, the Father has not provided full financial disclosure. He has transferred hundreds of thousands of dollars out of various accounts and is unable to account for that missing money. I find that the Father is deliberately hiding his financial resources.”

Judge Moore relied on previous rulings from Ontario courts that upheld the belief that a person who engages in criminal activities and is subsequently imprisoned is responsible for their own actions and should not be able to use their own wrongdoing as an excuse to evade financial commitments.

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