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The National Post

Court to dads: pay up

Alberta case may lead to flood of retroactive obligations

Cristin Schmitz, National Post and Global TV, CanWest News Service, Tuesday, February 08, 2005

OTTAWA - Children of divorced parents should no longer bear the burden of judges' leniency towards people who pay child support, Alberta's highest court has said in a landmark judgment that paves the way for thousands of retroactive support awards.

The Alberta Court of Appeal's unanimous ruling holds, in essence, that when the income of a person paying child support (usually a father) goes up, his obligation to pay higher support for his offspring normally kicks in at that time -- not weeks, months or years later when he either discloses his higher income to the custodial parent (usually a mother) or she finds out about it and demands more soild support or applies to court for an increase.

The decision means many support payers could owe substantial amounts retroactively, said Ottawa lawyer Julien Payne, one of Canada's leading authorities on divorce. "The decision is of critical importance -- there is a lot of money at stake. It opens the door much wider than it was before this judgment to retroactive support awards."

The court's message, Mr. Payne said, is that "if you have children, you should pay up."

He noted other appeal courts, including those in Ontario and British Columbia, have been moving slowly in the same direction, but the Alberta judgment is the clearest and most extensive pronouncement on the thorny issue of retroactive support.

Although the decision has no legal force outside Alberta, it is expected to stand as a precedent-setting judgment and have wide influence across the country, potentially affecting many thousands of support cases.

Mr. Payne, who wrote a book last year on federal child support guidelines, predicted retroactive awards are likely to become "more routine than rare" if other courts follow Alberta's lead. He added that inconsistent appellate decisions across the country make it possible the issue will find its way to the Supreme Court of Canada.

For decades, many Canadian courts have been extremely reluctant to order "retroactive support" -- support for the span of time that precedes a custodial parent's formal request for child support, either during settlement discussions between the parents or an application to a divorce court.

The Alberta court's 52-page decision rejects the notion that such awards must only be granted in "extraordinary circumstances."

The appeal court stressed that when federal child-support guidelines came into force on May 1, 1997, Parliament "radically altered" the law. The child-support guidelines require people to pay varying amounts of child support set out in a table, based on their incomes and the number of children they are supporting.

"The guidelines' emphasis is on children, creating a child-centred, not payer-centred, approach: They are designed to put children first," Justice Marina Paperny wrote for the court in the dispute between father D.B.S. and mother S.R.G. over retroactive support. There is a publication ban on the pair's identities.

"It is inconsistent with the guidelines, their underlying rationale, and the equality rights of children [under the UN Convention on the Rights of the Child] to require that there be exceptional circumstances before awarding retroactive support for the period pre-dating the filing of a court application or claim for support," Judge Paperny held.

She said the courts have been unduly solicitous toward those paying child support, compared with other types of debtors, for fear of crippling the breadwinner with debt or unduly rewarding the custodial parent with a large lump sum.

"Payers of child support have historically been treated with unusual leniency by the law -- and children have paid the price," Judge Paperny wrote. "In the post-guidelines regime, where it is clear that each parent is obligated to pay his or her fair share and the support of the children is to be considered primary, there is, in any event, no legitimate public policy supporting leniency for a non-paying parent."

Calling the issue of retroactive support "a thorny one" for litigants and their legal advisors that has led to inconsistent decisions across the country, the appeal court said it is important to clarify the principles and current state of the law. "The history of retroactive child support orders since proclamation of the Divorce Act reveals a patchwork quilt of disparate and sometimes random support awards" that has led to uncertainty and a "concomitant rash of litigation," Judge Paperny wrote.

She said the idea that it would be unfair to burden a child-support payer with a sudden, unanticipated obligation for more soild support overlooks the fact that the custodial parent has "assumed the balance of the child-support obligation to his or her financial detriment.

"Denying the retroactive order, while beneficial to the payer, in essence, penalizes the payee and the child and denies the validity of the payee's contribution," the judge wrote. The appeal court allowed the appeal of the mother, S.R.G., sending the case back to a lower court to determine what retroactive support is owed by her estranged husband. He paid her no child support during the three years the pair shared custody of their three children, even though in 2000 he had an income of $75,000 and she had no income.

Because the mother was unaware she was legally entitled to child support, she failed to apply to court until several years after her husband's legal obligation arose. He argued he shouldn't have to pay support retroactively and a lower court agreed.

National Post 2005