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Four fathers' child-support case will go to top court

Ruling on retroactive payment could affect hundreds of thousands of divided families

The Globe and Mail, By DAWN WALTON, Friday, August 19, 2005 Page A4

CALGARY -- The Supreme Court of Canada agreed yesterday to hear the appeal of four Alberta fathers, some of whom were ordered to pay massive amounts of retroactive child support, in a case that has implications for hundreds of thousands of divorced and separated families across the country.

"The overall message to Canadians is go on and sort out your ongoing child-support issues, but if you have a big retroactive claim you better put it on your backburner until the Supreme Court of Canada makes a decision," said Deidre Smith, whose Toronto-based law firm MacDonald & Partners is representing the Alberta men.

The fathers are appealing an Alberta Court of Appeal decision in January that required parents with child-support payments based on old court orders and separation agreements to pay thousands more retroactive support to better reflect their higher incomes.

For one of the divorced fathers, that meant paying a lump sum of $100,000 or half of his current annual income because the court looked back eight years at his take-home pay. Another father was ordered to pay an additional $10,000 even though his annual income has hovered around $21,000 over the years and he incurs great expense to visit his children who live far from him with their mother.

"These are not deadbeat dads," Ms. Smith said. "None of these guys couldn't be found, didn't make payments, had to be chased after. The common thread amongst all of them is they all paid the support they were supposed to be paying pursuant to agreement or order."

The Alberta cases sent chills across the country -- mostly to men, who tend to be payers of child support and who feared their former spouses, the custodial parents, would take them to court to demand huge increases in retroactive child support.

The debate centres around child-support guidelines introduced by Ottawa in 1997, which were supposed to devise a formula to calculate payments based on tax returns and create a notification system to custodial parents. Those rules have never been implemented because the provinces and territories did not sign on.

Generally, estranged couples have been heading to court for payment orders or have come to an agreement with their lawyers.

Under the child-support guidelines, the custodial parent could ask in writing about changes in income and then ask to vary child support, but the payer is not forced to advise of income changes or automatically raise the amount of support.

However, the Alberta court found that payers should provide financial disclosure and increase support when their income rises -- even if the custodial parent doesn't demand it.

The court also looked back numerous years to vary payment schemes, thereby shirking the general rule of thumb that claims date to when the application is made or can be retroactively increased but generally only by one year, Ms. Smith explained.

While some judges have ruled with the Alberta cases or at least agreed with some portions of the ruling, appeal courts in Ontario and Saskatchewan have taken a different view.

"I would have been surprised if the court had not granted leave," said Nicholas Bala, a family law professor at Queen's University in Kingston, Ont., "It's an important issue in terms of the number of people affected. It's important in terms of the interests of children. And it's important because we now have conflicting appeal court decisions."

While the ruling ultimately could affect tens if not hundreds of thousands of people, Prof. Bala said, most people don't bother varying their child-support agreements because they don't want to relive the emotional stress or sink any more money into legal costs.

"Most people, no matter what the Supreme Court says, will live with what they have," Prof. Bala said.

The Supreme Court will likely not hear the case until early next year and a decision might not come until nine months after that.

And even if the men now headed to Canada's highest court win, they don't expect that they'll get back the money they have been paying as ordered by the Alberta appeal court.

Meanwhile, there are publication bans on the names in two of the cases, but none of the men are keen to talk to the press about their personal plights -- one of whom says his relationship with his children has been destroyed through all the legal wrangling. Instead, according to their lawyer, they are hoping the Supreme Court finally settles this area of the law to the benefit of all families.

"One of the fellows said to me he doesn't want any other father to go through what he's gone through," Ms. Smith said.