Can Dave Foley return to Canada?

According to a recent article in Yahoo! News, Canadian actor/comedian Dave Foley claims he cannot return to Canada due to an Ontario Family Court Order which orders him to pay child and spousal support well above his current income (400 percent of his income according to Mr. Foley).

COURT ORDERS AND THE FAMILY RESPONSIBILITY OFFICE

Where child and/or spousal support is ordered by an Ontario court, the court Order is automatically filed with the Family Responsibility Office (FRO), a government agency which ensures support payments flow from the support payor to the support recipient. Where a support payor is in arrears, FRO may take one or more measures to enforce the payment of support. These measures can include suspending the payor’s driver’s license or Canadian passport, placing a lien on the payor’s personal property and/or starting a Default Hearing, which may result in up to 180 days of jail time.

If Mr. Foley is in substantial support arrears, he is likely facing FRO enforcement, which may include jail time. This is why he cannot afford to return to Canada.

WHAT ARE DAVE FOLEY’S OPTIONS?

If a support payor is unable to pay the child and/or spousal support amounts that have been ordered or agreed upon by the parties, it is important for the payor to immediately seek a variation of the support provisions based upon there being a material change in circumstances. A material change can be a change in the condition, means, needs or other circumstances of the parents or of children and may be foreseen or unforeseen, foreseeable or unforeseeable. A material change may include:

  • a material change in either party’s financial position,
  • a change causing undue hardship for either party or the children,
  • a change in the number of children entitled to receive support under this Agreement,
  • a change in the child’s special or extraordinary expenses,
  • a change in the child’s residence that affects the amount of child support under the Guidelines,
  • a child turning 18 years of age, or
  • a change in the child’s need for support.

If, for example, the support payor’s income has been reduced due to illness, then he or she may claim that there has been a material change in his or her income which makes paying support at the current levels unfeasible. It’s important to provide all documentation necessary to support a claim of material change (i.e. medical notes and reports which detail the illness, prognosis, treatment and effect on ability to work).

Even where a support payor can demonstrate a reduction in his or her income, a court has the ability to impute income and/or hold the support payor to the current support Order if it appears as though the reduction in income (or the material change in question) is not reasonable. When it comes to paying child and/or spousal support there is an expectation that the support payor will maintain a relatively stable income, with some exceptions. If it appears that the support payor is intentionally unemployed or underemployed, the court will enforce levels of support which may be well beyond the payor’s ability to pay.