The 'Kid' Is Not Alright: Dave Foley in Dire Straits

Foley, who rose to fame in the Canadian comedy troupe 'Kids in the Hall,' met Southey, a freelance journalist, in 1983 and wed her eight years later. They divorced in 1997 after six years of marriage. His second marriage to actress Crissy Guerrero ended in 2008. They have a daughter together.

At a Nov. 15 default hearing in Toronto, a judge from the Ontario Court of Justice – using information including Foley's most recent tax return and credit card bills -- upheld the existing child support agreement that says Foley must pay his ex-wife and their two sons child support of $10,700, which has been indexed for inflation. (Southey waived her right to spousal support when they divorced.)

He also has to pay an additional $5,000 a month toward the $589,082 in arrears that he has racked up since August 2003. (Southey's lawyer, Jacqueline Mills, says the arrears figure is actually higher because it does not include costs like paying off the mortgage of the home they shared, to which he had also agreed.)

The Ontario judge said that Foley would go to jail for 10 days for each payment he missed. Foley brought a check for $20,000 to court on Nov. 15 for back child support, and would have gone to jail if he failed to do so.

Since the Nov. 15 hearing, Foley still has not paid Southey for December, January or February, says Mills.

Foley told Maron on the podcast that the November ruling has left him in dire financial straits. "I'm happy to give away half my money, that would be great," he said on the podcast. "But I'm literally obligated to give away 400 percent of my income, or otherwise go to jail.

"The judge even said, if I was paralyzed from the neck down, I would still be responsible for having to earn a million dollars a year. (None of the judgments PopEater obtained show that a judge said this.)

"I don't think I would take to jail well," he said.

Foley's manager and former lawyer did not return calls and emails for comment. But Foley's business and entertainment lawyer and longtime friend, David Himelfarb, who accompanied him to court in November (but didn't represent him because he doesn't practice matrimonial law), tells PopEater, "He's between a rock and a hard place now. Is he in default? Yes. Has he paid the $10,700 he owes every time? No, he hasn't. He made a deal that he can't uphold. His earnings are down, and he has no assets. He was paying her until he couldn't anymore. He did reduce the amount unilaterally, because he didn't have enough money to pay her the entire amount."

He says that Foley borrowed the $20,000 he brought to court in November from his brother and has to pay it back ASAP.

Foley lost a critical motion to vary the child support agreement in 2007, long after he had stopped working on the hit NBC sitcom, 'NewsRadio,' which ended in 1999. The judge at that time refused to modify it. He had planned to seek a second variance later on, but did not go through with it, says Himelfarb.

"He said, 'I can't afford it,'" Himelfarb says. "His income has steadily declined over the years since he did 'NewsRadio.' After 'NewsRadio,' sitcoms took a nosedive. With the advent of reality TV, sitcoms are fewer and fewer. He has taken any job that has come along, just to pay the bills."

IMDB.com shows that since the end of that hit show, he worked every year in movies and on TV shows including 'A Bug's Life,' 'Will and Grace,' 'Becker' and 'Scrubs.'

On Feb. 23, Variety reported that Foley has landed a role in the CBS pilot 'How to Be A Gentleman.' Says Himelfarb: "God willing it is successful. But it's not a sure thing."

Failure To Pay

Southey's lawyer told PopEater via e-mail that "Mr. Foley agreed, voluntarily, with legal advice, to pay $10,700 a month to support his children. He obviously agreed at that time that their expenses were in that range and that was their lifestyle. He agreed that this was what was required to maintain them in the lifestyle they were accustomed to.

"On the strength of that promise, Ms. Southey, with a grade 9 education, agreed to forego spousal support despite the fact that her income was totally uncertain and likely minimal. Mr. Foley acknowledged this his income could increase and he would not be required to pay more child support. He acknowledged that he was aware that his income could decrease and he would still have to pay the same amount. This was the deal that he voluntarily struck. His wife relied on his agreement to her detriment."

Despite the court-ordered agreement, "He stopped paying the agreed upon child support years ago when his income was still very high and when he still had the financial resources to comply with the agreement," says Mills. "He chose not to do so. The current order deals with the arrears that accumulated when his income was high but he did not pay what he agreed to pay."

Southey declined to comment for this story. But according to Southey's Factum -- a summary of the facts and her legal arguments she filed in 2007 when Foley tried to modify his payments – while Southey was struggling to raise their two children as a single mother with a modest income, Foley "was living a rather lavish lifestyle in LA in a house with a gardener and a pool. Ms. Southey and the children never had such a lifestyle and Ms. Southey has been plagued with requests for payments that Mr. Foley chose not to make."

To support her two children, Southey "has had to borrow and beg to make ends meet," the document states. "She lives in a modest house in a safe, but not rich or lavish part of Toronto, in the house that the family lived in together."

The Factum says that Southey is a mother who "is trying to raise these children in very difficult circumstances. Mr. Foley is centered in LA and sees the children only sporadically. Tabatha is the parent who needs to be there every day for the children."

As for the $10,700 a month in child support she is supposed to receive, the document says, "She merely wanted her children taken care of in a manner that was consistent with Mr. Foley's income and the needs of the two children."

Foley had agreed to pay child support as well as the children's educational and medical expenses, the document says. "It was not long after the agreement was signed that Mr. Foley stopped paying the amounts agreed upon. He defaulted on school fees, medical expenses and unilaterally reduced the amount of child support. He did bring an application to reduce the support, but based on the agreement and his income post-separation, the judge determined that the support was appropriate and ordered him to pay it. If the agreement was not in place, Mr. Foley would have been ordered to pay approximately the same amount in spousal and child support.

"The amount Mr. Foley is now required to pay relate to a period when he was earning a high income, but he unilaterally decided not to pay. No judge has ordered him to pay more than his income for any year. He has been ordered to pay support for years in the past when he was earning a high income and chose not to pay. The amount he is now required to pay is the result of him not paying in prior years."

Foley had agreed to pay off the outstanding mortgage on the home they shared when he left, but never did so, leaving Southey to pay the mortgage, the document states. "She still cannot refinance the home or use her equity in it to assist in the costs of raising the children," it says. "Mr. Foley's obligation with respect to the mortgage was really minimal and he could have easily met his obligation in his years of high earnings, but he chose not to do it.

"Mr. Foley has only been ordered to comply with his obligations to his children. Nothing more, nothing less."

The Show Must Go On

Earlier this year, Foley returned to his roots in stand-up comedy, performing a new stand-up routine at the Upright Citizens Brigade Theatre in LA.

Foley remains distraught about all the money he owes. On Dec. 4, he tweeted about the November court order, thanking his followers for their "kind words" then saying, "Family court in Ontario ruled I have to pay 1st wife 3X my monthly income or go to jail because I used to be rich."

"It's a stressful prospect," he tweeted minutes later. "If I can figure out how to get rich again I'm sure I'll be funny again. Oh, but I make a living being funny. Damn."

He added later, "An earlier judge ruled that my 'Ability to pay is not relevant to my obligation to pay.' That's an actual quote. From the judge, not Kafka."

"[Foley] feels terrible" about the situation," says Himelfarb. "As he has said, he has bad days, and he has days that are better. He wishes this would all go away. My advice to him was to go back to court and fix it, but he doesn't have the money. The only way to fix it is to go back to court."

On Valentine's Day, the man who has made millions laugh tweeted, "Happy Being Reminded of How Miserably Alone You Are Day."

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