Support payments must keep pace with pay

Canadian Press, by JIM BROWN, July 31, 2006, Found in the Globe and Mail ( Canada's largest national newspaper and various other newspapers across Canada

OTTAWA Divorced or separated parents who do not increase their child support to keep pace with their rising income could face hefty retroactive orders to pay up under a new Supreme Court of Canada judgment.

In a 7-0 decision Monday, the court said that, as a rule, people who do not keep their support payments up to date as their incomes increase are not fulfilling their legal obligations to their children.

The nuanced ruling also left plenty of room, however, for future decisions in the lower courts to vary based on the specific facts of each case.

For example, a parent in most cases the father might face undue hardship in paying a retroactive award in some circumstances.

The issue arose when four Alberta fathers challenged the retroactive awards made against them. The Supreme Court ordered two of them to pay up, while the other two were absolved based on the circumstances of their cases.

The legal principles involved extend far beyond the four cases and could affect thousands of couples.

Deidre Smith, the lawyer for the four fathers, said her advice to future clients will be simple.

Make sure they make financial disclosure whenever their income changes, and at the very bare minimum on an annual basis. ... Don't wait for the court cases to start.

Ms. Smith noted, however, that even with the best of intentions, where both parents agree on the amount to be paid, it can be difficult to sort out the legal steps necessary to stay up to date.

Most provinces have agencies that can deduct payments at source from salaried employees, but it requires a court order to vary the amount, and that can mean legal fees to deal with the paperwork.

I hope that we see some very quick changes by the various provincial and federal regulatory groups ... so as to streamline the process for families who are doing this on consent, Ms. Smith said.

All of us in the judicial system need to make it a little easier for them.

Federal law sets guidelines that tie child support to ability to pay and number of children.

But people often leave old jobs and take new ones as the years go by. Custody arrangements also change as children move back and forth between parents, so support agreements often become outdated.

In practice, the onus has typically fallen on recipient spouses usually the mother to go to court if they think they are owed more money. But they say they cannot do so if their ex-partners have not disclosed their new incomes.

In the two cases where fathers were ordered to pay retroactively by the Supreme Court, one man owes $22,000 to be paid off in $500 monthly instalments. The other faces a bill of $108,000 but has until 2010 to pay.

One of the two fathers who will not have to pay had been facing a claim of $15,000 in retroactive money, but he has never made more than $23,000 and would have faced financial hardship in complying.

In the other case where no retroactive award was ordered, the mother complained that she had never been advised of her ex-partner's increase in income. The court said parents have a responsibility to inquire into matters like this.

In cases where retroactive payments are warranted, the courts set a rough guideline of three years as the farthest back such awards should extend.