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
Ontario's Family Responsibility Office has many problems
Quote from Ontario Government Ombudsman -"an equal opportunity error-prone program,."'
Support recipients not getting their money.
Men who've been meeting their court-ordered obligations have trouble getting the FRO to stop taking payments when it's supposed to. Read More ..
March 25, 2000
Divorced fathers get a bad rap for not supporting their children. The truth is, many can't. And, tragically, some are driven to desperate measures, including suicide.
In his suicide note, Jim, the father of four children, protests that "not all fathers are deadbeats." Jim hanged himself because he couldn't see any alternative. Even now, his children are unaware of the circumstances of their father's death. Meeno Meijer, National Post George Roulier is fighting to regain money wrongfully taken from his wages by the Ontario child-support collection agency. Chris Bolin, National Post Alan Heinz, a Toronto firefighter, has gone bankrupt fighting for the return of his daughter, 3, from Germany. No one will help him, but German authorities are trying to collect child support from him.
Whenever fathers and divorce are discussed, one image dominates: the 'deadbeat dad,' the schmuck who'd rather drive a sports car than support his kids. Because I write about family matters, I'm regularly inundated with phone calls, faxes, letters and e-mail from divorced men. It's not news that divorced individuals have little good to say about their ex-spouses. What I'm interested in is whether the system assists people during this difficult time in their lives, or compounds their misery. From the aircraft engineer in British Columbia, to the postal worker on the prairies, to the fire fighter in Toronto, divorced fathers' stories are of a piece: Though society stereotypes these men relentlessly, most divorced dads pay their child support. Among those who don't, a small percentage wilfully refuse to (the villains you always hear about).
What you haven't been told is that the other men in arrears are too impoverished to pay, have been ordered to pay unreasonable amounts, have been paying for unreasonable lengths of time, or are the victims of bureaucratic foul-ups. Read More ..
Edmonton and Calgary Sun
Feb 5, 2005
EDMONTON -- An Edmonton judge has decided a divorced dad has to make child support payments, even though the child isn't his. Justin Sumner had an on-again-off-again relationship with the woman he eventually married, Dawn Sumner.
She already had a child from a previous relationship with a man named Rob Duncan, and as she and Justin broke up and reunited, Dawn was sexually involved with both men.
When she found she was pregnant, she called Justin, who recognized there was a possibility that Duncan was the father, but later concluded he was the dad. Read More ..
Andrew T. Renouf committed suicide on or about October 17, 1995 because he had 100% of his wages taken by the Family Responsibility Office, a child support collection agency of the Government of Ontario, Canada.
He asked for assistance for food and shelter from the welfare office and was refused because he had a job, even though all of his wages were taken by the Family Responsibility Office.
Andy was a loving father that hadn't seen his daughter in 4 years.
A memorial service was held in October, 1998, for Andy in front of the Family Responsibility Office at 1201 Wilson Avenue, West Tower, Toronto, Ontario, Canada. This is in the Ministry of Transportation grounds in the Keele St. & Hwy 401 area. All members of the Ontario Legislature were invited by personal letter faxed to their offices. Not one turned up. The Director of the Family Responsibility Office and his entire staff were invited to the brief service. The Director refused and wouldn't let the staff attend the service although it was scheduled for lunch time. There was a peaceful demonstration by followed by a very touching service by The Reverend Alan Stewart. The text of the service will soon be able to be read below.
The service made the TV evening news.
It was Andy's last wish that his story be told to all. YOU CAN READ HIS SUICIDE NOTE
Auditor General of Ontario
80% of Telephone calls don't get answered
Payers and recipients do not have direct access to their assigned enforcement services officer
"There is only limited access to enforcement staff because many calls to the Office do not get through or are terminated before they can be answered."
"The Office is reviewing and working on only about 20% to 25% of its total cases in any given year."
"At the end of our audit in April 2010, there were approximately 91,000 bring-forward notes outstanding, each of which is supposed to trigger specific action on a case within one month. The status of almost one-third of the outstanding bring-forward notes was "open," indicating either that the notes had been read but not acted upon, or that they had not been read at all, meaning that the underlying nature and urgency of the issues that led to these notes in the first place was not known. In addition, many of the notes were between one and two years old."
"For ongoing cases, the Office took almost four months from the time the case went into arrears before taking its first enforcement action. For newly registered cases that went straight into arrears, the delay was seven months from the time the court order was issued."
The Ottawa Citizen
January 14, 2012
TORONTO - Ontario's controversial Family Responsibility Office has been overbilling 1,700 parents, mostly fathers, for as long as 13 years, the province admitted Friday.
The 1,700 parents were overbilled by an average $75 each month, after the agency wrongly applied a cost of living adjustment that was eliminated in 1997.
Those who were overpaid will not be forced to give the money back.
Instead, taxpayers will foot the $5.3 million bill for the agency's mistake.
"This error's been found and it's being corrected," said Liberal cabinet minister John Milloy. "We're going to be reaching out to those individuals (who were overbilled) and talking to them about their situation, formally alerting them."
The Family Responsibility Office, or FRO, is responsible for ensuring court-ordered child support payments are made. Read More .. than 97 per cent of all payers overseen by the office are male.
Milloy said the agency discovered the problem at some point in 2011. No one will be fired for the mistakes, he added.
"I see this as something very serious," he said in an interview. "I'm not trying to minimize it, but â€¦ there's been lots of action taken to reform FRO, to update computer systems, to update customer relations and it's on a much firmer footing."
The billing mistake is only the latest controversy to engulf FRO. Read More ..
"Canada's national newspaper for professional women"
On June 9, 2005 the McGuinty government announced the passage of Bill 155, legislation that promised to increase enforcement, improve fairness and enhance efficiency at the Family Responsibility Office (FRO).
However, the legislation did not address the problem of accountability and, as things now stand, the FRO is a threat to every Canadian affected by a government regulated support and custody arrangement system. Think of George Orwell's 1984 and you'll have a good picture of how issues are handled at the FRO.
They have legal power to extort money from Canadians, but are not responsible or accountable for their actions.
Last year an FRO staff member decided not to wait for a court date to review the financial status of an out-of-work truck driver and took it upon themselves to suspend his license because he was, understandably, behind on his payments, having lost his job earlier in the year. Although he was looking for work, the FRO cut off the only way he knew of to earn a living. His suicide note explained how he'd lost all hope. Is this what we want FRO to be doing? Read More ..