Court ruling means divorced dads could face hefty child-support payments

The National Post ( one of Canada's 2 national newspapers), Janice Tibbetts, CanWest News Service, Monday, July 31, 2006

OTTAWA - The Supreme Court of Canada sent a warning to divorced parents on Monday that they better come clean when their income goes up or they could be forced to pay retroactive child support unless they can convince a judge that they had a good reason for non-disclosure.

The unanimous decision will mean a huge change for the way the child support business is conducted in Canada, predicted lawyer Deidre Smith, who represented four Alberta fathers challenging court orders to pay retroactive support.

Its going to change substantially how payors view their responsibilities, Smith said.

You dont wait until youre asked.

Smith said she will advise all her clients to own up annually, so that they wont be hit with retroactive bills.

She also called on the federal government to rewrite the 1997 federal child support guidelines, to make it easier for paying parents - usually fathers - to keep up to date automatically instead of having to go to court.

The current guidelines, which fix payments to a grid based on the paying parents income, only require income disclosure when requested by the recipient parent, and then courts can order an adjustment based on the information.

Until now, orders to make retroactive payments have been the exception rather than the rule.

The Supreme Court stopped short of ordering a duty to disclose salary changes automatically, but the judges signalled that paying parents should do so as a matter of course because children of divorce have a right to a share of an income hike.

Parents have an obligation to support their children in a manner commensurate with their income and this obligation and the childrens right to support exists independently of any statute or court order, wrote Justice Michel Bastarache.

While child support orders should provide payor parents with the benefit of predictability, and a degree of certainty in managing their affairs, such an order does not absolve the payor parent - or the recipient parent - of the responsibility of continually ensuring that the children are receiving an appropriate amount of support.

The ruling sets out guidelines on when retroactive payments may be ordered, taking into account such factors as the degree of hardship for the paying parent.

Smith predicted the ruling could affect hundreds of thousands of families.

The ruling is a victory for two Alberta fathers, identified in court documents as D.B.S. and T.A.R.

Two other fathers - Daryl Henry and Kenneth Hiemstra, were ordered to pay $129,000 between them.

Henry was hit with the biggest retroactive bill of $107,000. The Calgary father paid modest child support relative to his income, which reached a high of almost $200,000 in 2000, according to his ex-wifes written court submission.

Meanwhile, she said she struggled financially for a decade - at one point she had her phone cut off for not paying her bill - before she finally decided to pursue her ex-husband for more support.

In awarding her a lump sum of $100,000, the courts said she delayed taking action earlier because she couldnt afford the legal fees and her ex-husband threatened to make a court battle expensive and try to get custody of the children.

At the time, he was paying less than half of the child support guidelines amount of $2,425, based on his income in 2000. Their separation occurred before the guidelines took effect.

The Alberta Court of Appeal ruled in favour of all four mothers in February 2005, concluding that children of divorce should no longer shoulder the burden of judges traditionally leniency toward people who pay child support.

CanWest News Service 2006