Divorced dads face bigger support bills

Calgary father told higher salary means larger payment

Calgary Herald,  Suzanne Wilton, with files from Cristin Schmitz, for CanWest News Service, Tuesday, February 08, 2005

A Calgary man has been ordered to pay more than $100,000 in back child support in what's being described as a landmark court ruling that could affect fathers across Canada.

The case potentially opens the door to a flood of claims by custodial parents -- usually moms -- seeking retroactive payments, say family lawyers.

"This is big-time law," said Calgary lawyer Lonny Balbi, past chairman of the Canadian Bar Association's National Family Law Section. "It could be a huge numbers issue."

A judgment handed down by the Alberta Court of Appeal last month upheld a lower court's ruling that Daryl Ross Henry should pay retroactive support for his two daughters.

The court ruled that Henry should have increased his payments as his income dramatically rose in the years after his divorce from Celeste Rosanne Henry. He earned $183,906 in 1995 and $231,900 in 2002.

In 1991, the year after the couple split, the father was paying $700 per month despite earning $6,125 per month, or $73,500 a year.

In 1997, federal rules took effect tying the amount of child support directly to income. And though Henry had voluntarily increased his monthly support to $1,186 by 2002, he was still paying less than half of what his obligation would have been according to the formula set out by Ottawa.

"If you make more money -- significantly more -- then there is a duty to contribute," said the mother's lawyer, Daniel Colborne, who rejects the so-called "floodgate" argument.

"If you make more money you should share with the kids -- or don't have them. It's about responsibility."

The case was one of four in Alberta to reach the same conclusion in January.

Three of the judgments were handed down on the same day. The decisions could be used to argue similar cases in other provinces unless there is a definitive ruling on the issue from the Supreme Court of Canada.

Balbi argues the rulings run contrary to national child support guidelines set out by the federal government in 1997, which he said allow for retroactive payments -- but only back to the date when the child support recipient goes to court seeking a review.

In the Henry case, the courts ruled the ex-wife was entitled to back child support to 1997, when the national guidelines took effect, even though she didn't formally request her ex-husband to disclose his income, or take legal action to increase payments until much later.

According to the court ruling, the mother was struggling to provide the basic necessities for her children on an annual income of $38,400.

She claimed when she asked for additional financial help over the years, her ex-husband refused and threatened to fight her in court and seek custody of the girls.

In 1992, the mother's phone was cut off when she couldn't pay the bill. When she sought assistance to pay for treatment for a bedwetting problem with one of the children, he refused.

The father -- who did help pay for braces and offered some other financial assistance -- argued in court that to pay more than $100,000 in back child support would be a hardship, as he's now remarried with twin boys.

The court, however, rejected that argument.

"This is a lot of money," said Court of Queen's Bench Justice Patricia Rowbothom, "approximately half of Mr. Henry's income. And he has a new family to support.

"On the other hand, Ms. Henry already endured the hardship of maintaining a home and providing for (the children)," she said.

Balbi said the ruling means the onus is now on the payee, usually the father, to cough up extra cash every time his income goes up.

"What happens, as his income goes up, he has to voluntarily pay more. Now, he has to monitor his income situation and just pay it.

"The problem is what happens if his income goes down? Does he start paying less?

"It's very bizarre."

Danny Guspie, executive director of the Toronto-based Fathers Resources International, criticized the judgment, saying it's another strike against dads.

"It doesn't get to the heart of the matter, which is why did he avoid (paying more)?" said Guspie.

"He avoided because he perceived an inherent unfairness in the guidelines.

"I guess she won the lottery."