The recent case from the Provincial Court of British Columbia, S.M.R. v. E.L.M., dealt with the issue of whether an addiction to drugs and alcohol is a choice or a disability and whether or not the substance abuse addiction has an impact on ongoing and retroactive child support. In this case the father did not defend or appear at the child support hearing and as a result the court imputed an income to him. Since the original child support order was granted the father rarely worked as he was addicted to drugs and alcohol. The reality was that his imputed income was astronomically higher than his actual earned income. Eventually, two years after the original child support order, the father applied to vary the order. The Provincial Court of British Columbia found that the circumstances of the delay did not create a scenario where the father should be precluded from varying the original child support order. The court found that he was suffering from a serious addiction and homelessness issue which impeded his ability to earn income and attend court proceedings. The court did not find the mother’s argument that the father made a choice to spend his money on drugs and alcohol rather than his son persuasive. Instead it was found that the father’s lack of participation was understandable in light of the addiction.
Across Canada the issue of imputing income to a parent/payor who has an addictions issue has been a controversial one. There have been decisions from Ontario such as Hutchinson v. Gretinger, where the court has rejected substance abuse as a justifiable excuse in the absence of compelling evidence. In Hutchinson, Justice Quinn held that “…even if one were to accept that the respondent is a drug addict, his addiction is not a defence to a support claim. When one first consumes illicit drugs, one must be taken to know that addiction can result: addiction is a reasonably foreseeable consequence.” The view of Justice Quinn was not followed by Justice Ball in Kalanuk v. Michelson, where the Saskatchewan judge found that a father’s alcohol and drug addiction was an illness rather than an individual choice. In Lindsay v. Jeffery, Justice Stanley Scherr of the Ontario Court of Justice put the issue of addiction and support as follows:
“The ravages of drug and alcohol addiction are observed weekly by this court in custody/access and child protection cases. Many parents who love their children very much are motivated to play an important role in their children’s lives have their roles in their lives profoundly reduced or even eliminated because they have a substance addiction over which they have little control. This court views substance addiction as a health issue. With proper evidence, this court is willing to consider that substance addiction is a reasonable health need of a parent that can justify underemployment or unemployment…”
The case law appears to be developing towards the views of Justice Scherr, with society, and the courts, recognizing that an addiction issue is often a health issue. In the end, it will be analyzed on a case-by-case basis with the requisite evidence having to be produced to substantiate the addiction and its effect on the ability of the party to earn an income.