Legal fight looms over huge support payments

Canadian Press, March 28, 2005

TORONTO -- A Toronto legal team wants the Supreme Court of Canada to hear an appeal on behalf of four Alberta fathers ordered to make immediate child-support payments retroactive to 1997. Family lawyer Gary Joseph says if the case is not heard, families across the country may find themselves owing thousands of dollars in retroactive support.

Joseph filed the appeal application to challenge a recent Alberta decision requiring the fathers to pay large sums of support - more than half of one man's annual earnings in one case - based on changes in their incomes over the years.

Each of the fathers were paying child support according to prior court orders and separation agreements, Joseph said. "They weren't deadbeat dads. They were meeting their support obligations."

He said the problem has surfaced because federal child-support payment guidelines announced in 1997 have not been fully implemented.

When the guidelines were introduced, Ottawa included a process by which the government could calculate child-support payments based on tax returns and notify parents of required adjustments in pay.

But provinces had to sign on, which hasn't happened, thereby opening a Pandora's box of legal and financial problems down the road, Joseph said.

As it stands, separated and divorced parents receive a court order telling them how much they owe, or work out an agreement with their lawyers.

But as child-access arrangements change, parents remarry, have more children and incomes fluctuate, the original support arrangement often no longer accurately reflects each parent's situation, Joseph said.

"This has potential to create tremendous conflict, potential to rip apart new families," Joseph said, adding that provincial courts have been inconsistent in how they have approached the issue.

Joseph's legal team says virtually anyone who is paying child support under a court order or separation agreement made within the last two decades may face large amounts of back claims.

One of the divorced fathers Joseph is representing has been ordered to pay $100,000 in back child support, more than half the client's current annual income. Another father, whose annual income has never exceeded $23,000, has been instructed to pay $10,000 in retroactive support.

Joseph said an Ontario Court of Appeal decision in a similar case ruled that it was unfair to create large orders for back support from people who have lived up to their agreements and acted in good faith.

Stacy Robb, president of Dads Canada, said the cases of the Alberta fathers highlight a glaring problem that has long been neglected. "How is it in the child's best interest to bankrupt either parent?"