Written Brief--April, 1998
by Karen Selick
I was very wary of the changes to the child support provisions of the Divorce Act from the time I first heard that they were in the works. In large part, my concern stemmed from the simultaneous change to the Income Tax Act, which repealed the deductibility of support for payers.
As far back as 1993, when the Thibaudeau case first made the news, I was writing newspaper and magazine articles opposing this change. It seemed clear that a great many children of separated families would be made worse off, not better off. I even proposed what I thought would be a superior alternative: a system under which the spouses could elect the tax treatment that was preferable for their specific circumstances, on a case-by-case basis. If they couldnít agree, I suggested, they could ask a judge to make the decision, specifying not only the amount of support but also whether his order was to be deductible or not.
But it was all to no avail. The individuals who favoured that tax change were, in my opinion, wearing blinkers, and the politicians who wanted this change because they knew it would enhance tax revenue were--again, in my opinion--simply using those lobbyists as political pawns.
Unfortunately, it is probably too late to go back and reverse this mistake--at least, by itself. Now that we have guidelines and tables, giving people an election of one tax system or the other would mean that we would have to have two sets of guidelines and two sets of tables. Since one of my criticisms of the guidelines is that they are already too complicated, this would make things even worse. However, I would support repealing the guidelines and the tax changes as a package. I think they have not been a positive development, on the whole.
My objections to the guidelines fall into two categories:
philosophical and practical.
You would probably prefer that I talk about the guidelines
in isolation, without dragging other issues into the discussion, but in
my view, this is impossible. Itís like talking about whether itís
better to execute people by electrocution or lethal injection, without
worrying about whether the people who are going to be executed have committed
1. Custody and Support Inseparable
I think itís impossible to separate the issues of support and custody. The guidelines are unfair, in part, because the law on child custody is unfair. To be blunt, men are not given a fair chance to get custody of their children. In Belleville, Ontario, where I practice law, there are at least three judges on our circuit, in Ontario Court (General Division), whom I have heard with my own ears proclaim their bias in favour of giving custody to mothers. This is no secret among lawyers in my community. We all talk about it amongst ourselves, but no-one is willing to come forward and point the finger publicly at the specific judges involved. Iím not willing to name them myself. I still have to appear in front of them, and I worry about how discussing this in front of the Senate might affect my own relationship with these judges, or the results that I can obtain for future clients.
In one way, itís better for judges to proclaim their prejudices aloud than it is for them to harbour these prejudices in secret. At least this allows us lawyers to do a little discreet juggling with the timing of our motions and trials, so that we can try to find someone who wonít be biased.
But thatís not enough. We lawyers are not supposed to judge-shop, and we shouldnít need to. We need judges who are unbiased. And if we canít rely upon finding any, just because itís human nature to form opinions, then we need the statute to provide guidance on how an unbiased regime of child custody would work.
I think the default position in the Divorce Act should be that parents should be permitted to have equal time with their children following separation, unless there is some very, very good reason why they shouldnít--for example, if one parent is physically or sexually abusive, or alcoholic, or drug-addicted. In other words, there should be a rebuttable presumption in favour of joint custody, with equal time for both parents.
For that default position, where each party is directly
contributing to the support of the children by caring for them half the
time, I think the support rule follows automatically: nobody should
pay any child support per se to anybody else, even if their incomes are
unequal. (This is not to say that one spouse may not have to pay
money to the other, but such payments should not be characterized as child
support. They should be determined according to ordinary principles
of contract law: determine what agreement the spouses originally
made, determine who breached it, and determine what damages would compensate
the innocent party. This is a wide departure from the current law
of spousal support, and I would be happy to expand on my views on this
subject, but doing so would digress too far from the main subject of this
2. Denying Children Luxuries in Order to Equalize Households
It is often said that one of the goals of the child support guidelines is to ensure that children donít suffer in their standard of living after divorce. But of course, in most families, that goal is obviously unachievable. When you suddenly have two sets of shelter costs instead of only one, it is clear that some luxuries will have to be foregone. So itís simply a fraud for us to carry on with this as our guiding principle.
The present system, of making one parent pay support to the other, tries to even out the differences between the standard of living in each household. The effect of this is to deprive children of the experience of the highest possible standard of living available to them. They canít have luxuries at Dadís house because Dad is forced to pay for some of the basics at Momís house.
To give a concrete example, suppose Mom on her own can
afford only a 2-bedroom apartment, but with child support could afford
a 3-bedroom apartment. Suppose Dad could afford to give the kids
skiing lessons so long as heís not paying child support, but canít afford
it if he has to pay support. In todayís world, the support would
be paid and the kids would each have their own bedroom when they stay with
mom, but theyíd never learn to ski. Under my proposal, the kids would
have to share a bedroom when they stay with mom, but theyíd get skiing
lessons when theyíre with dad. Who is to say that the first solution
is more advantageous to the kids than the second?
3. Promoting Conflict by Artificial Definition of Standard of Living
The other goal of the guidelines, so we are told, is to reduce litigation and conflict between the former spouses. I donít think they achieve that. Perhaps the guideline amounts havenít changed much from the awards that were being made in the larger cities like Toronto or Ottawa before the guidelines came in. But I can tell you that in the smaller towns like Belleville, they are much steeper than they were before. The effect is to make the payers very, very resentful of their former spouses.
The most frequent complaint I hear from the payers of child support is that the recipient (usually the wife) isnít really spending the money on the children--sheís spending it on herself. In my opinion, this is quite an accurate perception. The amount of support being paid does not cover just the marginal costs of having the children as extra persons in the household. It covers a fairly big chunk of the basic expenses, and mom gets to enjoy the benefit of that money too.
So rather than reducing conflict, these larger support amounts tend to foster resentment among the payers. They donít see their standard of living as being significantly better than their ex-wives. Quality of life is measured not only in money income but on several other scales as well. One is the amount of leisure in your life. If youíre working long hours in order to earn a high income, you will not necessarily have a better or happier lifestyle than someone who works shorter hours and earns less. Or if your high-income job is also a high-stress job, you may be much less satisfied with your lifestyle than someone who earns less but isnít subject to chronic anxiety and fatigue.
Generally speaking, higher-paid jobs come with one or
both of those elements attached: longer work hours or more stress.
So the parent who has the higher paying job generally has traded off some
leisure or peace of mind in order to earn the extra money. Now he
has to hand over a big chunk of that extra money to the former spouse--the
one who already has shorter work hours or less stressful work. What
does he get in return? Nothing. She canít give him some of
her excess leisure, or some of her lower stress levels. She ends
up getting both the intangible benefits of extra leisure and lower stress,
and the tangible benefit of extra money (i.e., his money). He ends
up with less leisure, higher stress, and no reward for it because heís
been forced to give the extra money to her.
4. Children of Divorce Can Gain Advantage Over Children of Intact Families
Thereís another problem with the guideline philosophy which holds that children living apart from their parent should enjoy a standard of living commensurate with the absent parentís income. This rule overrides the parentís own judgement about what is appropriate to spend on a child.
The recent case of Francis v. Baker provides an excellent example of this. In this case, the father was ordered to pay child support in excess of $10,000 per month for two children. Thereís no question that Mr. Baker could afford this without significantly harming his own standard of living. However, the question that occurs to me is: if the children had actually been living with him, would he really have been spending $10,000 per month on them, or would he have felt that such lavish spending would "spoil" them?
There are many people in upper income brackets who have not always been wealthy. They have started from modest backgrounds and worked their way up. In addition to being hard-working, these people are often frugal in their spending habits. This is especially so if they are small business owners. They know that there is always the possibility of financial reverses, and that they must save something for a rainy day.
Many of these parents, if they were raising their children
in their own homes, would choose to spend less on the children than they
will be forced to pay under the guidelines. Many of these parents
would see some merit in denying their children everything they desire.
Many would believe it would build their childrenís character to have to
earn their luxuries.
5. Why Are Only Children Entitled to Justice, Not Adults?
Every lawyer who practises family law knows that whenever a difficult question comes up in a case, the sure-fire answer is always "Do whatever is in the best interests of the children."
In my opinion, this is a sanctimonious cop-out. In our society, children have been put on a pedestal. No-one dare say anything that sounds the least bit "anti-child". These pro-child attitudes can and do form the excuse for inflicting all sorts of injustices on others who donít happen to be children.
It is wrong for the justice system to say, "We will do whatever is to the advantage of children," without considering whether it is doing justice or injustice to the other individuals before the court. Itís a very near-sighted way of treating children.
Children donít remain children forever. We are all children for about one quarter of our lives; then we are suddenly tossed out into the world where, as adults, our rights count for nothing when measured up against the claims of some child. This does not make sense.
In the long run, children are better served by implementing a system which does not make their material well-being supercede all other notions of justice toward their parents. It is important that they know they will grow up into a world that will treat them fairly. They are not oblivious of the wrongs done to the adults around them. Boys can see that when they become men, the deck will be stacked against them in issues of custody and support. Girls can see that when they become women, the dice will be loaded in their favour. We should not be surprised if children grow up with a cynical view of the justice system.
In connection with this point, I would like to draw a
parallel to the law on spousal support. I believe that the decision
made a decade ago to sever the connection between support and spousal misconduct
was a very bad decision. I believe marriage should be looked upon
as a contract, in which both spouses have agreed to assume certain obligations
in return for specific benefits. If one spouse breaches the contract,
he or she should be punished, not rewarded. Instead, our no-fault
laws on spousal support allow spouses to commit adultery, to commit violence,
or to become alcohol or drug addicts, all without forfeiting their
right to support. What does this teach our children? Surely
they should have the benefit of learning by example that these undesirable
behaviours will bring about negative consequences. Please see my
article "Spousal SupportóTime to Consider Misconduct" which I have attached
to this paper.
6. Governing by Regulation
My next philosophical objection to the guidelines relates to the process by which they are developed, amended and implemented. It is unprecedented in Canadian law, I submit, for policies of this magnitude and complexity to be implemented by regulation rather than by statute which would be subject to full, public debate in the Houses of Parliament. This is equivalent to saying that the Income Tax Act should be simplified to read, "All residents of Canada will pay tax in an amount to be determined by the regulations."
This legislation means that millions of peopleís lives will be governed by unelected bureaucrats. This committee is not an effective means of preventing abuse. Like the bureaucrats, you senators are not elected. You will face no negative consequences if you sanction badly drafted regulations or oppressive regulations.
For more on this point, please see my article "Flavour
of the Month: Easy-Bake Regulations" which I have attached.
7. Oppressive Enforcement Mechanisms
I have grave concerns over the enforcement mechanisms in the law, particularly the provision that allows the denial of passports. There will certainly be cases where people have genuine disputes over genuine issuesófor example, whether or not a child over 18 is diligently pursuing his or her education and remains a "child of the marriage". Substantial arrears may accumulate while this issue comes to trial, and the payer may wrongfully be denied the ability to vacation or to earn a living abroad.
I can hardly believe that we have come to the point in Canada where we might effectively deny a person the right to leave the country. This smacks of totalitarianism. It brings to mind East Berlin before the Wall came down.
Child support is a private, civil debtónothing more.
I donít understand why it should be treated differently, for enforcement
purposes, from other civil debts. If I, as a lawyer, go bankrupt
and donít pay my staff their wages, their children will suffer. If
I donít pay the mechanic who works on my car, his children will suffer.
Should I be denied a passport for these other civil debts? Why should
there be any difference?
I will turn now to what I call "practical objections"
to the guidelines. Here I set aside my philosophical objections and
presume that we will continue, for many years to come, with the present
system, subject perhaps to minor variation. These are "real-world",
as opposed to idealistic, criticisms of the guidelines.
1. More Time-Consuming and Expensive
In all but the most simple cases, the guidelines are causing lawyers to spend more time, rather than less time, calculating and negotiating the appropriate amount of child support.
The elimination of the tax deduction has clearly been disadvantageous to many couples, and I personally have negotiated a few settlements where we have agreed simply to leave an interim order (a pre-May 1997 order) in place to get the benefit of the tax deduction, because both spouses were better off under the old system. However, in arriving at those deals, we have had to spend twice as much time calculating the tax consequences of each scenario.
Although booklets have been issued which are supposed to allow people to calculate their own child support, most people do not have the confidence to do this. Most of my clients donít prepare their own income tax returns, either. Itís not very likely theyíll be able to use the guideline workbooks successfully, especially when to actually put an agreement into place means you have to work co-operatively with the one personóthe estranged spouseówith whom you have demonstrated that you cannot work co-operatively.
If the system wasnít broken, they shouldnít have "fixed" it. In Belleville, Ontario it wasnít brokenóat least, not this part of it (leaving custody aside). We had been using some rules of thumb for calculating child support for several years, and they worked well. They were developed by Mr. Justice Richard Byers, the Hastings County judge. Essentially, his rule was that you looked at the non-custodial parentís gross annual income, took one percent of that, and that would be the amount of support per month, per child. This rule of thumb allowed counsel to settle a lot of cases without going to court, because we had common expectations of what the outcome would be. However, in unusual circumstances, we could always go before a judge and argue our case. Generally, this would happen in the same circumstances that give rise to discretionary applications under the guidelines: that is, when there are child care expenses, or unusual medical expenses, or a child is over 18, or there is an unusually high level of income, or a split custody situation.
Judges attend conferences with other judges from time
to time, and I recall hearing that there were many judges in other parts
of Ontario who had heard about Justice Byersí system and were adopting
it. Something simple was all that was really needed.
2. Captive Market for Software Companies
It was made very apparent to us lawyers when the guidelines were first introduced that we would be expected to use computer programs to do these calculations. The Law Society of Upper Canada actually had the software designers come to its introductory program and do a presentation. The software is expensive, and I resent having to buy a copy for every lawyer in my firm who does family law. I can understand sole practitioners feeling resentful at having to spend $800 or so on software for this purpose. Whatís worse, though, is that in cases where you are faced with an argument over facts, or over the use of discretionary provisions, you will need to print out many different scenarios to place before the court. You may not be able to predict what decision the court will make on factual issues, so to do a really good job, you should have this software loaded onto a notebook computer that you can take right with you into court. Thatís an expense of about $4,000.
Recently, I obtained a copy of the governmentís official
handbook on the guidelines, and again I note that it contains sample calculations,
done using the software of one particular company. There are actually
at least three companies who have produced software to do these calculations,
and I think it is disgraceful that the official literature produced by
the government uses only one of them. This is virtually an endorsement
of a product produced by one company, to the exclusion of competing products
(one of which is, in my opinion, superior).
3. Excessive Complexity
Many lawyers were dismayed by the degree of intricacy
of the guidelines. Personally, I spent the first 7 years of my professional
career practising tax law, so I am used to that arcane language and that
degree of complexity. However, many lawyers who choose to do family
law select that field precisely because they donít want to work in that
type of picky, detailed, highly technical field. Now youíve made
tax lawyers of us all. At the seminars introducing the guidelines,
I heard many lawyers comment that this might be the final straw that would
make them quit practising family law.
4. Shifting the Litigation to a New Battlefield
Although the guidelines were supposed to introduce certainty and uniformity into the law, and thereby reduce litigation, there is a good chance that all they will do is to shift the dispute to different grounds. Already I know that the strategies which I discuss with my male clients have changed. The financial stakes are now so high that it may be more worthwhile for them to take a stab at gaining custody of the children. More men are willing to consider that option than formerly. They feel there is no other way for them to have any financial comfort or rewards left for themselves after all their hard work. They are becoming very interested in ensuring that they have the children at least 40 percent of the time, in the hopes of getting into the discretionary portion of the guidelines.
This development, in the abstract, is probably a positive thing. As I said before, I think both parents should have equal time with their children. It is good to see that men are now asking for equal time more often. However, if the goal was to prevent litigation, it has not been achieved.
Furthermore, by making the new guidelines apply to all
currently separated and divorced couples, instead of grandfathering the
couples who were separated before the new rules came into effect, we have
denied all those earlier people the right to adopt this new strategy.
There is very little chance of a non-custodial father successfully changing
an established custody order, but there might have been a chance of obtaining
custody if he had fought for it in the first place.
5. Deficient Standard of Living Test
The standard of living test refers only to income. It doesnít take into account each individualís capital, which can make a big difference to their actual living standards. For example, mother may inherit a big, beautiful mortgage-free house in which to raise the children. Even though her income may be lower than that of her former husband, she may have negligible shelter costs, while he pays an exorbitant rent to live in a downtown Toronto apartment. Her standard of living will be higher, but this wonít be reflected by comparing cash inflows.
6. Add-Ons Are Supposed to Be Net of Tax Relief
Some time within the past month or so, I received a new
booklet from the Justice Department containing tables that allow me to
calculate the amount of tax relief a parent receives for medical expenses
or child care expenses. I had been wondering when they would get
around to doing this. After all, not everybody has made the decision
to buy the computer software to calculate this automatically, and the guidelines
say that these add-on expenses are supposed to be apportioned net of any
tax relief. However, anyone who works in this field is aware that
this is an area where there is massive tax evasion going on. Many
child care providers do not report their incomes and do not give receipts.
The custodial parents understand this system and they donít try to claim
a deduction for their child care expenses. However, will the estranged
spouse be so complacent? His reaction may be: "I donít care whether
or not youíre claiming the deductionóIím entitled to be treated as if you
were." This is just another potential new battlefield.
7. Extraordinary Access Costs
Perhaps the most egregious situation arises where the
custodial parent decides to move the children across the country for reasons
of her own, leaving the paying parent behind. Not only has he lost
regular contact with the children he is paying to support; he will also
have to pay airfare in order to exercise future access. In these
circumstances, the only relief he can request is an "undue hardship" claim,
but this will be denied if he cannot show he has a lower standard of living.
However, it seems grossly unfair that the custodial parent can freely impose
extra costs on the other parent. Sometimes this will be done for
no reason other than to exact revenge. I would suggest that
the parent who decides to move the children away from the other parent
should have to pay the access costs, or at least have them offset against
I donít believe the child support guidelines have solved any of the problems inherent in these unfortunate marital situations. Even worse, I believe that they may have aggravated existing problems, or introduced new problems.
Approximately half of all the people who murder their spouses do so during the course of separation or divorce proceedings. With increasing frequency, we hear news stories about people who kill their spouses, their children and themselves, often in situations where they are recently separated. I believe these guidelines will contribute towards that tragic trend. I think they will push more people to murder and suicide. Other people will be driven to leave the country, or to vanish into the underground economy.
We may never see the statistics to support these predictions
Iím making, because the reasons why people do these things are hard to
capture in a data base, but I know how my clients are reacting to the news
I give them when they ask me what their rights and obligations are.
I worry about them.
I attach three of my columns from Canadian Lawyer magazine, concerning points raised in this brief:
1. Child SupportóThe View from Mars
2. Flavour of the MonthóEasy-Bake Regulations (February, 1997)
3. Spousal SupportóTime to Consider Misconduct (January, 1998)
Oral presentation to Senate