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Activist Supreme Court Justices — Part III, Child Support and Alimony

"The main disadvantage of not allowing reductions of support in cases of joint custody and extended visitation is that support-paying parents may feel that they are not financially compensated for their increased child-related costs, and this could become a disincentive to joint custody."

Child Support: Public Discussion Paper
federal/provincial/territorial Family Law Committee, 1990
canada.justice.gc.ca/en/ps/sup/pub/childsup.html

"if judges cannot be neutral, they can be impartial"

Madam Chief Justice of Canada Beverley McLachlin

This a document in four parts.  

  1. Part I — Judges with an agenda
       General evidence of all-pervasive, feminist anti-male bias in Canada's jurisprudence
  2. Part II — Family Violence
       Evidence of all-pervasive, feminist anti-male bias in Canada's jurisprudence in relation to family violence.  Part 2 deals not only with anti-male bias but also identifies evidence of a very strong bias towards denial of the culpability of women in cases of family violence against men and children.  Part 2 is contained on this page.
  3. Part III — Child Support and Alimony
       In this part of her critique of Madam Justice Beverley McLachlin's (Chief Justice of Canada) speech at the Family Law Dinner of the Ontario Bar Association Eeva Sodhi reveals the systematic design and implementation of a system for the planned destruction of the family, a system designed to put non-custodial parents (predominantly fathers) into poverty, to keep custodial parents (predominantly mothers) under- or unemployed, and to prevent any chance at reconciliation, joint custody or reasonable involvement of fathers in the upbringing of their children.
  4. Part IV — Best Interest of the Children and Conclusions
       In this, the last part of her four-part critique, Eeva Sodhi identifies the obscenity of a feminist jurisprudence that acts, ostensibly in the best interest of the children, contrary to the children's best interest by deliberately destroying the bond between child and father.  The conclusions of her critique contain findings that will without any doubt surprise many and shatter a considerable number of myths.

"Not content with the other daily atrocities performed in the family courts, the Department of Justice has re-enacted the medieval inquisition."

— Eeva Sodhi 


Part III, Child Support and Alimony.

General.

Madam Chief Justice of Canada effused excitement when, in her speech to the Canadian Bar Association (CBA) on the 24th January, 2002, she extolled the virtues of her "pro-active" and innovative ideology. She had a receptive audience as many of the most draconian sections in the "Child Support Guidelines" were based on the recommendations made by the CBA.

According to the Canadian Association of Provincial Court Judges (CAPJ) Madam Justice McLachlin said in one of her papers that "if judges cannot be neutral, they can be impartial"

The Oxford Dictionary of Current English definition of "neutral" is:

  • 1 a. not helping or supporting either of two opposing sides; impartial [my emphasis]

Madam Chief Justice of Canada not only innovates the law but she gives innovative meaning to the English language also.

Cynthia L. Ewing, Senior Policy Analyst, Children's Rights Council (CRC), asks in her testimony before the U.S. House of Representatives Committee on Ways and Means, Subcommittee on Human Resources (February 6, 1995): "Are our social policies DISCOURAGING parental responsibility rather than ENCOURAGING it?" Her conclusion is that they are.

In Thibaudeau v. Canada Madam Justice McLachlin and Madam Justice L'Heureux-Dubé expressed the opinion that the inclusion of the child support received by the custodial mother in her taxable income is a form of discrimination against custodial mothers as an analogous group. They chose to ignore that the support received by Ms. Thibaudeau was sufficient to cover her self-reported child related costs and the tax paid on the support. They also chose to ignore that Ms. Thibaudeau, just like other mothers, is eligible for the child tax credit which is given under the "female presumption" rule. That can exceed $2,500 per child per year.

While arguing that the support received should not be included in the receiving parent’s taxable income because it is for the child, not for the parent, both madams justice also support Madam Justice Abella’s interpretation of the guidelines, namely that "the needs being addressed are those of the child's household, not only the economies of an individual child". [In Francis v. Baker, March 10, 1998, O.J. No. 924, (Ont. C.A.)] Thus they concur that the support is for the parent and her household. One is left with two questions: a) In the opinion of Madam Chief Justice of Canada, is the support for the children or is it for the household where the children reside? b) Should the support recipient not be accountable to quantify how much is spent on the payer’s children, and how much is spent on those who by law cannot be seen to be his dependants, in order to establish on what amount the support payer is to be taxed, and on what amount are the superfluous beneficiaries to be taxed?

In Francis v. Baker Iacobucci, J acknowledged that in theory the determination of child support, whether under the Divorce Act (section 26.1 (2)) or provincial and territorial legislation, is based upon the principle that both parents have an equal responsibility toward their children and should contribute in accordance with their own means to the needs of the children.

He accepts that in practise that, however, means that

"child support undeniably involves some form of wealth transfer to the children and will often produce an indirect benefit to the custodial parent. However, even though the Guidelines have their own stated objectives, they have not displaced the Divorce Act, which clearly dictates that maintenance of the children, rather than household equalization or spousal support, is the objective of child support payments."

Kelly, J.A. in Paras v. Paras (1971, 1 O.R. 130, 9 R.F.L.328, 14 D.L.R. (3d) 546 Ont. C.A.) makes a reference to physical custody in recognizing that costs for the children may be incurred in both households, not just in the household that has legal custody. Yet he also went on further to say:

"Generally speaking, such a formula would tend to preserve a higher standard of living in the home in which the children are supported at the expense of some lessening of the standard of living of the other parent, thus creating indirectly a benefit to the parent who continues to support the children"

Strange that he would refer to the recipient parent as the "parent who continues to support the children" and to the supporting parent as the "other" parent. Clearly the parent who pays support is the "supporting parent".

The CBA submission to the FLC read:

"Support awards should seek to maintain the standard of living of the family, rather than artificially treating the children as a unit separate from the custodial parent"

The above arguments are long on rhetoric but short on logic and justice. The only just and fair way to apply the law is joint physical custody where each parent is responsible for the maintenance of the children, according to his or her means as per the Divorce Act, while the children reside in their respective households. Any economic shortcomings in one household would be compensated in the other if there is a disparity in available resources. The transfer of funds from the household of one parent to that of the other condemns the payer parent to bonded labour as the courts interpret the law to mean that the needs of the non-reciprocating household have priority to the needs of the wage earner's own needs. Thus, the payer parent loses all control of his life as the judges take the liberty of deciding what his income should be and how many hours he should work, not only to support his family and himself but to also support those who have abducted his children and reside with them. The results often are that he in turn is voluntarily supported by others, such as his parents or spouse, failing which he may find that the only way out is to end his life as he himself is left without the basic necessities, such as food, shelter, and clothing. That in itself is a violation of the Universal Declaration of Human Rights, though pro-active in the opinion of Madam Chief Justice of Canada and the sisterhood. The ramifications of the unjust support orders are far reaching, impoverishing several individuals in order to allow one individual, who is given the choice to decide whether she wants to be a fully functional member of the society or whether she wants to lead a parasitic existence, to show that she is in command.

In the rare case where sole custody has been determined to be the preferred option, there is no reasonable excuse why the monies should not be spent directly on the children, with the custodial parent being fully accountable. Clearly any child support order over and above the needs of the children not only violates the rights of the payer parent but also provides the support receiving parent and her household an unjust enrichment.

The current judicial interpretation of the law is a strong inducement to seek sole custody especially as the support-receiving parent is not accountable to how the monies are spent. If the judges applied the law as it was intended, there would be fewer sole custody orders, fewer litigations and less child poverty as the financial resources of both parents would benefit the children rather than enhance the standard in the custodial household while discouraging the custodial parent’s self sufficiency. Thus, rather than reduce acrimony and "bad blood" between the parents, the courts are openly fomenting it.

It is interesting that Madam Justice Abella is careful to use the word "household" instead of "family" without considering the Charter. But, then, of course, she was faced with the problem of how to include the mother’s new partner and his or her children as beneficiaries since they cannot be seen to be part of the children’s family without acknowledging that they are contributing to the payer’s children, as members of the same household, in various ways.

This approach creates a unique situation where the non-custodial parent has to support not only his children but also any individual who resides in the same household as his children but wants to make the pretense of an arms-length relationship with them. No other identifiable group of the population can be ordered not only to provide financial support to perfect strangers but also to pay taxes on the aid that it provides.

What is a Family?

Statistics Canada defines a household:

"The concept of Household applies to a person or group of persons who occupy the same dwelling and do not have a usual place of residence elsewhere in Canada or abroad. The dwelling may be either a collective dwelling or a private dwelling. The household may consist of a family group such as a census family, of two or more families sharing a dwelling, of a group of unrelated persons or of a person living alone."

Its description of a family is twofold:

  1. Census Family consists of "a now-married couple, a common-law couple or a lone-parent with a child or youth who is under the age of 25 and who does not have his or her own spouse or child living in the household."
  2. "Economic Family is defined as a group of two or more persons who live in the same dwelling and are related to each other by blood, marriage, common-law or adoption. By definition, all persons who are members of a census family are also members of an economic family"

The Vanier Institute of the Family expands the term "family" to include all mutually dependent and loving relationships:

"Any combination of two or more persons bound together over time by ties of mutual consent, birth, and/or adoption or placement and who, together assume responsibilities for various combinations of some of the following: - physical maintenance and care of group members - addition of new members through procreation or adoption - socialization of children - production, consumption and distribution of goods and services - affective nurturance – love".

None of the above definitions include the non-custodial parent, usually the father, as he is not part of the household. Thus, he cannot be said to have a "first" and a "second" family. He can have a former family consisting of individuals who no longer live with him and a family with those who share his residence and are in a mutually loving and nurturing relationship with him.

The custodial parent’s, usually the mother’s, live-in partner can be seen to be in a mutually supportive relationship with the children if he/she assumes some responsibilities towards them, be it only paying part of the utilities or driving them to see the grandparents. Interestingly, no matter what his/her contribution, it is only acknowledged if his/her relationship with the custodial parent ends. Then he/she, too, will become a support payer, though until that time, as per the judges, he/she qualified for support from the children’s non-custodial parent. If we go by Madam Chief Justice of Canada’s perception, our family law is innovative though it is hard to see it as pro-active. In my humble opinion, it is highly destructive. I would argue that it also violates most of the articles of the Universal Declaration of Human Rights to which Canada is a signatory.

The higher the father’s income, the greater the benefit to the mother’s household. Recently many custodial mothers have received support awards far surpassing any rational expectations, some as high as $40,000 a month tax free, alongside a hefty lumpsum payment, (for example Alana Kainz in Ottawa who, after a short relationship, asked for $300,000 a month plus 15 million cash, in addition to the 1.5 million and a house worth $600,000+ that she had already received). At times one feels that judges are competing with each other to see who succeeds in making the most repulsive order.

Public Consultation on Child Support Guidelines Project.

The federal/provincial/territorial Ministers responsible for Justice announced the creation of the Child Support Guidelines Project in June 1990. The federal/provincial/territorial Family Law Committee (FLC) was given the mandate to study the various options. The Committee issued two discussion papers, one on the issues of substance (1990) and the other on economic implications (1991). The Committee asked for public input on the ideas expressed in both papers. Needless to say that the tenor in the papers was highly biased in favour of the custodial parents, mainly mothers, and openly dismissive of the rights of the non-custodial parents, mainly fathers.

The FLC proposed that the guidelines be established on eight principles. Principle no 7 ["while each child of a parent has an equal right to support, in multiple family situations the interests of all children should be considered"] is confusing. Would it not automatically follow that the interests of all children are considered if each child has the right to support?

Principle no. 8 ["the development of any new approach to the determination of child support should minimize collateral effects (e.g. disincentive to remarriage, joint or extended custody arrangements and voluntary unemployment or underemployment) to the extent compatible with the obligation to pay child support"] begs the question: Why should joint custody or extended custody arrangements be minimized rather than encouraged? Why is it OK to have a disincentive to the remarriage of the non-custodial parent [see below], while encouraging the remarriage of the custodial parent, as shown later? The discussion paper makes no secret that it not only condones, but actively encourages, the underemployment or unemployment of the custodial parent, usually the mother.

The readers were asked: "In your view, are the above objectives and principles of child support appropriate?"

Rather than allowing the public to respond in a free and unbiased manner, the Committee proceeded to offer a limited choice of answers and elaborated, in a blatantly leading manner, on the various options. The same approach was employed during the public hearings into the Child Custody and Access issues in 2001.

The1990 Discussion Paper comments that reducing the amount of support paid to the other parent in a physical shared custody or extended visitation situation might encourage the payer parent to ask for this form of custody only to have a reduction in the payments. That is an indirect admission that sole custody creates an unjust burden to the non-custodial parent, and an unwarranted advantage to the parent who secures sole custody, while shared physical custody would stop the unjustifiable transfer of funds from one household to the other.

The Discussion Paper moves from one muddled thought to the next. The FLC further comments that

"Allowing reductions of support orders where extra time is spent with a child could also create a disincentive for custodial parents to accept extended visitations, since additional visitation time would be perceived as requiring reductions of child support. Furthermore, increases in visitation may not reduce custodial parents' expenses toward children sufficiently to justify reducing the amount of child support. It also appears that in cases of joint custody and extended visitations, the overall costs of children increase substantially.

For example fixed costs could be the rent or mortgage, utilities, auto-related expenses, clothing, medical, or dental expenses. Therefore, granting reductions without taking into consideration the extra costs of joint custody and extended visitations may not be in the best interests of the child.

The main disadvantage of not allowing reductions of support in cases of joint custody and extended visitation is that support-paying parents may feel that they are not financially compensated for their increased child-related costs, and this could become a disincentive to joint custody."

The "guidelines" are based on the premise that the custodial parent has the children in her care at all times. No allowance is made for time that the non-custodial parent spends with the children unless it exceeds the magic 40% mark.

The fixed costs are equal to both parents no matter what type of custody order is in place. Housing, which is the biggest single expenditure, is a basic cost that would be incurred even without the children. If the custodial parent has been given the exclusive possession of the former matrimonial home her expenses may be greatly reduced, depending on the amount of the mortgage, who is ordered to pay for it, or the lack of a mortgage. The non-custodial parent is seldom in a position to secure the ownership of a new home and thus has to rent.

Both parents have the same need for additional bedrooms for the children, especially if they are of the opposite sex, no matter how many or how few nights the children spend with either parent. A non-custodial parent cannot have overnight visitation with his children unless he can provide suitable accommodation. If the custodial parent has moved to a different locality, the only way that access can be exercised is that the children stay for a few consecutive days (and nights), usually a week or two, with their non-custodial parent. Thus, the need for sports equipment, toys, books, clothing, etc. are similar in both households, especially as a well known tactic of sending the children without a change in clothing and in ill fitting shoes is common, no matter how much support is received.

One of the parents, usually the mother, is seen to be the custodial parent even if the children attend a residential school, and thus she is eligible for support, as the judges credit the time at school to the mother, though the payer parent is usually responsible for the fees:

In Meloche v. Kales (1997, Ont. Gen. Div.) the child attended a residential school and the time at school was ruled to count as the mother's time. The Court ruled that even if the child spent about the same time with each parent it didn't mean that the custody was shared by the parents.

One of the curious issues raised by the FLC was how to "compensate" for the time that the custodial parents spend while caring for their children even if they are not gainfully employed. As if that was not ridiculous enough, they pondered how to "compensate" for the loss of the 20-27 hours of weekly help in childcare that they received from the other parent during the co-habitation. Thus they suggest that the payer parent, usually the father, not only pay a salary to the custodial parent in addition to straight support, but also pay her for the time that he is allegedly not "helping" her. The FLC put on their blinkers and refused to admit that the time that the non-custodial parent cares for the children amounts to more than 20-27 hours per week even if he has the children every second weekend and one night per week. The possibility that a fair compensation would be joint custody, rather than increased transfer of funds from one household to the other, never once entered their mind. To them, the non-custodial parent is a mere cash-cow to be milked dry.

Comments on the "Summary of Consultations"

In the "Summary of Consultations" (1993) that followed the "Discussion Paper" Murielle Brazeau exhorts the readers that

"The Canadian Advisory Council on the Status of Women's submission is particularly impressive ... Also, the Canadian Bar Association has submitted a radical approach to the determination of child support which must be considered by this Committee. It is suggested that besides reading all submissions, the members may want to pay specific attention to those two submissions."

Ms. Brazeau’s summary focuses on the perception that anything seen to protect fathers’ rights to a certain, even minimum, standard of living is objectionable, whereas no advantage that can be given to mothers and their households is enough. This concept of "justice" has been duly adopted by the family courts under the stewardship of the Supreme Court of Canada. Madam Chief Justice of Canada sees this violation of the payer parents' human rights to be "pro-active".

Most of the submissions by the various women’s organizations, some directly and some indirectly linked to the Canadian Advisory Council on the Status of Women, and by the CBA and its provincial affiliates, have now been accepted by the judiciary even if they are not directly written into the guidelines.

Karen Selick, a Belleville, Ontario, lawyer does not consider this to be the correct approach. She wrote in her brief "Presentation to the Senate Committee on Child Support Guidelines" (April 1998) that the effort to equalize the standard of living in both households denies the children the opportunity to enjoy some luxuries that would be available in either one or the other household.

She also wrote that the most frequent complaint that she received was that the receiving parent did not spend the money on the children. This possible as the receiving parent is not accountable how she spends the support, whereas the payer parent has to disclose all his earnings whenever the receiving parent asks for it. This, again, is a unique requirement that only the non-custodial parents have to meet.

Ms. Brazeau’s attention is further caught by the following submission:

"for the promotion of responsible parenting, the support award should be included in the parent's self-support reserve to protect the first family when a support determination is being made for the second family. Otherwise, the number of children born to a women [sic] after the separation should be included in her personal reserve since it reduces her ability to provide for children of previous marriages and higher support awards should be granted to them " [see item no. 8 of the principles for the guidelines]

Seems more than strange. According to the advocates, a man is irresponsible if he wishes to establish a new family, as is his guaranteed human right, so that he, also, could have someone to share his life with. On the other hand, he is expected to provide not only his former wife, who has his children, but also her household, with sufficient support, at the expense of his own needs, so that she can remarry and carry on procreating at will. The lawmakers and interpreters see nothing irresponsible or illogical about that. Looking through the pro-active gender lens, the woman is only exercising her freedom of choice to have as many or as few children as she wishes. One could argue that as she already enjoys the company of her existing children, it is irresponsible to have more, especially if she is not able or willing to provide even for those who already are with her.

The advocacy groups, and the CBA, further declare that the "first families" (when it becomes too difficult to establish the link between the various co-habitants, the term used is "the custodial household" as per Justice Abella) have priority over "second families". Note the repeated use of the "first"’ and "second" families, rather than "former families" and "families", as if the qualification "first" would lend more legitimacy to the claim of support.

In Camirand v. Beaulne (1998, Ont. Gen. Div.) Madam Justice Aitken found that the combined income of the father and his new wife was, after the support payments, less than half than that of his former wife and her new female partner, who also had a child. The father and his new wife had a child. The court noted that he was suffering economic hardship, but refused to reduce the amount of support. The learned judge used the advocacy recommendation, as found in the "Summary", and concluded that the choices that he and his new wife made were within his control and he could not refer to them as the grounds of his hardship in order to reduce the support to the children of his first family.

In Nagy v. Tittemore (1997, Sask. Q.B.) the court agreed that the man’s standard of living was lower than his former wife's but held that it would be bad policy to undermine the tables just because the payer had a second family and obligations to it.

In Walkenden v. Zemlak (1997, Sask.) the court held that second families are no longer uncommon and that undue hardship is not automatically created because the standard of living of the payer parent becomes lower than that of the other parent as result of a legal duty to another child in that new family.
   However, when the payer parent is the mother, courts make a different ruling: In Martin v. Gerard (1997, O.J. No. 2517) the judge allowed the payer mother with less than ˝ of the income of the father (recipient) to pay no child support instead of the guideline table amount of $379.00 per month.

In Darbyson v. Darbyson (1998, Ont. Gen. Div.) the court held the divorce judgement directly or indirectly benefited the children at the payer mother's expense and also found a disparity in the incomes of the two households and concluded that using the guidelines table would be inequitable.

The next is an interesting case as the former wife receives spousal support from the custodial father whom she is obliged to pay child support.

In Petrocco v. Von Michalofski (1998, O.J. No. 200) the well known feminist judge mused that,

"Further, having regard to the mother's historical role as primary care giver and the need of the children to have her re-instated as an important parental figure, and to the fact that the children in this family have a lifestyle of luxury in the custodial parent's home, the expenses required for a realistic exercise of access will be unusually high. It is clear that the mother's access should be expanded considerably so that the children will spend more time with her. In this case, the access parent's role and the importance may be detrimentally affected by an inability to offer the children a reasonable level of activity and comforts relative to that enjoyed in their primary residence. Payment of support at the guideline level will interfere with the ability of the mother to provide such activities and comforts." The child support was reduced from the table amount of $516.00 to $150.00 per month.

The case law proves that judges order the transfer of funds from the father to the mother even if it interferes with his ability to provide the children with the same comforts that they enjoy in the mother’s household, not because of the mother’s contribution but because of the support that the father pays to the mother. At times it prevents the non-custodial father from having access to his children as he is not able to provide acceptable accommodation.

The women’s advocates, backed by the CBA, have created two classes of women and children, those who are deserving and those who are not. The undeserving ones share their lives, for better or for worse, with the man whom they love and whose income is used to support those who no longer live with him and whom he might not even see.

There was no indication that the Committee recognized that often the income of the current wives of the disenfranchised men is ordered to supplement the "support" given to the former wife, who may already be in a new mutually supportive relationship and who has chosen to stay away from gainful employment. The tenuous justification for this that "the new spouses have accepted to live with whatever is left over after the support is paid to the "first family".

Who Benefits from Divorce?

The answer is simple: the partner who files for it. As most divorces and separations are initiated by women, we can safely assume that they also are the ones who expect the gain.

We have reached the absurd stage where a man, who has been cast aside, may be able to survive only if his new partner is receiving support from her former partner. Karen Selick says:

"I tried to explain how dismal life had become for some of my male clients. They had lost their wives, sometimes to adultery. They had lost custody of their children, who usually went with their wives. In some cases, they rarely got to see their children, due to geographical distance or spousal hostility. Then adding insult to injury, they were required to make monthly payments to the person who had done this to them. They worked all week, but after the government and their "ex" each took a generous slice, what was left to make life worthwhile for them?

These days, I regularly find myself suggesting to distressed male clients that the only way I can see out of their financial dilemma would be to hitch up with a woman who has the same number of kids as they do and an ex-husband in the same income bracket. That way, the outflow and inflow would balance. But stay aloof from her kids, I warn: if you split up and have to pay support for them, too, you might as well lie down and die."

It is hard to fathom how the FLC concludes that the custodial parent is always at a disadvantage. It is still harder to comprehend that the learned judges don’t smell the rat.

Melanie Cummings of the Children’s Rights Council (CRC) illustrates in a chart (using NY income numbers) how child support impoverishes the payer. In her example a father, earning $55,000 per year who pays child support for 2 children, ends up with a disposable income of only $14,000. The support receiving mother, earning $26,000 per year, ends up having a disposable income of over $44,000.

It gets even more absurd when Ms. Brazeau continues:

"One person fears that by requiring individuals to contribute to the needs of a new spouse's children, we would impose an unfair burden on all step-parents (unless they choose to adopt the children) and that it would ultimately affect custodial parents' chances of remarrying."

This in accordance to principle no. 8 in the recommendations for the guidelines. As the FLC found this comment worthy of repeating, one might assume that, in their opinion, the payer parent should pay sufficient support to his former partner so that she will be an attractive catch on the matrimonial market, even if that means that he is not able to establish a new family for himself.

The CBA recommends that:

  1. support awards should seek to maintain the standard of living of the [custodial] family [or household as per Madam Justice Abella and her coterie], rather than artificially treating the children as a unit separate from the custodial parent
  2. that non-custodial parents be submitted to a complete financial disclosure but that the financial means and needs of the custodial parent should not be considered in determining child support unless the custodial parent is asking for more than the "ceiling rate"
  3. a first family first approach [gives an example as to how it could work in the income equalization model, and suggests that this approach could also be applied in their preferred Unit Shares Model] [CBA Ontario]
  4. that the second family benefit from the remaining income could also serve to establish the support award if there was a breakup of this second family [CBA Ontario]
  5. that any guideline must address the issue of joint custody and time spent with the children but that in a unit shares model should present no problem because the income in each family would be identical such cases would be irrelevant

A blueprint for slavery? See the Universal Declaration of Human Rights below. Various women’s groups further submit that women and men have different minimum needs, that child and spousal support are interrelated with custody.

Imputing Income.

Some submissions favour the possibility of income attribution [imputed income] as described in the Discussion Paper:

"a presumptive guideline could provide direction to the Court to maximize income so that a maximum order would be made … it [should] be coupled with a highly inquisitory system which would not automatically assume the integrity of the people."

Not content with the other daily atrocities performed in the family courts, the Department of Justice has re-enacted the medieval inquisition.

In Hanson v. Hanson (1999, BCSC E006672) Madame Justice Martinson stated the following: … "In order to meet this legal obligation, a [non-custodial] parent MUST earn what the parent is capable of earning"...There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor ... A parent's limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment. Persistence in unremunerative employment may entitle the court to impute income. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. …" There were two children who were 20 years and 18 years old. Mr. Hanson had lost his job and was on stress leave. Not only was he ordered to pay child support for two adult children but spousal support as well though his wife was earning an income. Madam Justice Martinson imputed the husband’s income upwards but left the door open to the wife to claim a reduction in her income if she gets rid of her tenants. This judgement has now become one of the mantras in the family courts.

In James v. James (1998, O.J. 130) The judge accepted the argument that the payer father should have income imputed to him as he declined to work the extra overtime that his employer offered and would no longer work more than 55 hours a week.

Courts now have a habit of imputing an income even to a disabled man.

In Dumont v. Dumont (2001 BCSC 1300) the judge admitted that Mr. Dumont had "a diminished ability to earn an income in order to meet both his expenses and his obligation to support the child" went on to say that: He has a paramount obligation to find alternative employment or income in order to meet the expenses of his child, for if he does not, the burden falls fully upon the child's mother and inappropriately so, in my view … the husband had 88 sick days banked. … He cannot expect the child's mother to pick up the full burden or his diminished responsibility when he had that asset on which he may call..." He should pay support because he had 88 sick days banked? How long would those monies last? According to the judges fathers are not only ordered to pick up the full burden of child related expenses but also are ordered to contribute to all individuals who reside in the same household with their children, related or unrelated.

In Hunt v. Smolis-Hunt (2001, 20 RFL (5th) 409 Alta CA) the payer father had for several years engaged in an unsuccessful law practice. Prior to that time he had worked as a civil servant in a non-legal position making $55,000 a year. Justice Johnston imputed an annual income of $55,000, concluding that the father's "personal choice" to continue in the law practice "in the face of repeated unsuccessful years...with no reasonable prospect for future improvement ... is undervaluing his earning capacity." The judge concluded that s. 19(1)(a) should be invoked in situations where the payer "recklessly disregards the needs of his children in the furtherance of his own career aspirations." [for contrast see Wright v. Wright below where the judge ruled that the husband had no right to tell the wife what kind of employment she should have]

The tune changes when the wife’s income ought to be imputed.  In Imrie v. Imrie (2001 BCSC 1443) the father asked that the mother have her income imputed as she was capable of earning. They were separated with the daughter, born in 1985 (16 years old at the time of the trial) living with the mother, and son born in 1990 (11 years old at the time of the trial) living with father. The judge said no because the mother had diabetes and was suffering from stress [see above what a father who suffers from stress is told]. She got both spousal and child support, and the judge divided the assets 60/40 in her favour.

Meeting the Re-education Wants or Needs of the Former Spouse

The man will have support his ex-wife if she wants to upgrade her skills:

In Polson v. Polson (2000 BCSC 1477) the court ruled that a woman, who has a grade 10 education and "some marketable skills" and walks out with $629,500 in cash and $55,000 in RRSP, has "suffered an economic disadvantage in that she has not been able to obtain the benefits of work experience, training and job security during the marriage". No questions asked if she ever had wanted to obtain the dubious "benefits". The judge ruled that she will require spousal support for several years, as well as child support for one adult daughter, with the support level reflecting the husband’s $60,000 annual [imputed] income and the income which she ought to earn from the $450,000 she can anticipate investing from her share … The father was also ordered to shoulder the estimated $12,600 shortfall in the children’s tuition fees. One is left to wonder what disadvantages did Mrs. Polson suffer from the marriage. All the evidence points to the fact that she reaped unprecedented advantages from it, as well as from its breakdown.

In Graham v. Graham, (2001, BCSC 1527) where the husband was severely disabled and had a new family to support on his disability pension the judge ruled:

[79] "Mrs. Graham continues to be in need of spousal support and I am not prepared to fix a time for it to end. She needs to take training for the workforce but her approach to training is casual and unrealistic. She has taken the occasional course at University College of Fraser Valley in past years but has not yet qualified to pass her first year there

[86] I order spousal support of $1,250.00 monthly commencing November 1st, 2001. I fix that amount on the understanding that Mrs. Graham may have schooling costs as a result of enrolling in the College.

To show what a thoroughly decent chap he is he continued:

[87] "I shall not order that the support be retroactive to the date of the Application or the date of the Hearing for two reasons:

  1. The plaintiff did not disclose that she was living in a common-law relationship with Ms. Barlow and had been for years. That information came to Mr. Graham very shortly before the Application was heard. That was relevant evidence and should have been produced, seasonably …
  2. Mrs. Graham did not inform Mr. Graham that Joshua was not taking any schooling after June 1997 and he continued to pay support for him from October 1997 until May 1999, when he need not have."

How very decent of him not to order retroactive support.

When the former husband wants upgrade his skills he will have an imputed income. Even his student loan will be seen to be an income:

In Razavi v. Aavani [1998] B.C.J. No. 1885 (S.C.) the court imputed income to the father in the full amount of his student loan and grant.

In Fahel v. Fahel ( 1997, BCSC D 38400) income was imputed to a father who had voluntarily given up work and gone back to school. Although s. 19(1)(a) provides that reasonable educational needs of the spouse may be a reason not to impute income the Court found that the timing of the return to school was inopportune.

Self-sufficiency.

In Miglin v. Miglin (2001 Ont. C.A.) The judges determined that Mrs. Miglin, though she was well qualified for any job in the hospitality industry, should continue to be supported by her husband, indefinitely. Madam Chief Justice of Canada will hear this case later this year. She is already contemplating it, as she says in reference to this case: "But if we approach them [difficult cases] in an objective and creative way, we can hope to find legal solutions that mirror our society's needs and sense of justice." [The Supreme Court judges expressed their personal views on that in their final decision [1]]

I have no doubt that there will be dozens of pages of creativity after Madam Chief Justice of Canada ends with it, as she has been very forthright in telling us what, in her opinion, are the society’s needs and what is her sense of justice. I have an inkling of what the conclusion will be. See also Adams v. Adams below.

Only yesterday, the 20th of June 2002, the Ontario Appeal Court in Kreklewetz v. Scopel (C35903) ruled that "although a mother knows the identity of the father, the Act contemplates that she may still not acknowledge him as the father. Because acknowledgement involves a volitional act of admitting knowledge of a fact, it is possible for a person to acknowledge something to be true in one context, but to decline to do so in another context." [31]

Thus she may acknowledge him as the father who is responsible for support payments. He pays child support according to the guidelines and visits with the child. "She concluded that he never had loved or respected her, and as a result she did not want to give William his surname."

What has that got to do with the child’s birthright to his paternal as well as to his maternal name and family? The law states that all decisions are to be taken according to the best interests of the child, not according to what the mother’s alleged feelings are.

The Payer is not the Natural Father.

In Hautala v. Hautala, (1997, Ont. Gen. Div.) mother had 3 children during cohabitation with father. Blood test showed one was not his. He had one child in another relationship for whom he was paying $300 per month support. Court held the table amount for 4 children to be $930 and that where a person was not the natural parent it could order such amount as it felt appropriate. Here court ordered $600 per month for his natural children and $30 per month for the 4th child. (Coupled with his other natural child the total support payments to the two mothers by the father came to $930 - the amount the table shows as the obligation for 4 children.) Innovative and pro-active, indeed.

Statistics.

A study done by FACT (Fathers are Capable Too) documents that more than 60 percent of men paying support for one child fall within Statistics Canada's "relatively impoverished" zone. More than 80 percent of men paying support for two or three kids fall within the zone. With four kids, virtually every support payer would be considered relatively impoverished. In all categories the recipient parent fares better than the payer parent.

Mike Diehl, research & information co-ordinator, Austin Chapter, Texas Fathers for Equal Rights, made a study of 783 divorces which was published in the Texas Bar Association Journal. Results of his study are:

  1. Of the 783 divorces surveyed, only 18.8% of fathers obtaining custody received an award of child support. No non-custodial mother was required to provide any other continuing service to her children analogous to her role function in an intact marriage.
  2. Ninety-six point eight percent (96.8%) of mothers obtaining sole custody received child support. Only one father in five received assistance and help from a former spouse, and over five times as many mothers as fathers received post-divorce help.
  3. The average monetary award to custodial mothers was $170 per child per month, with an average award of $253. This did not include direct cash payments; i.e., medical expenses, insurance, schooling, etc.
  4. The average monetary award to custodial fathers was eleven dollars per child per month, with an overall average of eighteen dollars per month.
  5. Compliance figures: After three years of separation, over 80% of non-custodial fathers were in full compliance with the divorce decree orders. After one year, only 11.7% of noncustodial mothers were paying anything at all.

Spousal support, also known as alimony.

On Sunday, the 14th of April this year (2002) Susannah Herbert wrote in the Telegraph "Get rich girls, get divorced":

The projected growth in "mass affluence" among single women is nothing to do with a national increase in female financial aptitude or a revolution in workplace equality, but everything to do with a national epidemic of failed marriages … So girls, forget all they told us at school about making our own way in the world. It seems that the 21st century has given a twist to the oldest of formulae: where once society applauded women marrying for money, now they are reckoned poor saps unless they divorce for it too."

In her introduction to Bracklow v. Bracklow (1999, 1 S.C.R. 420) McLachlin, J (as she was then) mused over the various ways by which one partner, invariably the husband, could be held responsible for supporting the other after divorce.

It was no easy task, and she dithered this way and that and finally threw the whole thing back to the trial judge. She questions:

"What duty does a healthy spouse owe a sick one when the marriage collapses? It is now well-settled law that spouses must compensate each other for foregone careers and missed opportunities during the marriage upon the breakdown of their union"

To the best of my knowledge no law says that. Judges do. Furthermore, I have not found a single case where the former wife would have been ordered to compensate her former husband, disabled or healthy, for the gains that she made during the marriage. Rather, the more the husband contributed during the co-habitation, the more support he is ordered to pay. Interestingly, the most common handicaps that the former wives seem to be suffering from are stress, depression and "fibromyalgia", just like Mrs. Bracklow. The last affliction is not even recognized by the medical profession. Read the case law to see what happens to men who claim that they suffer from one of the above.

There can be no doubt that a person who is not interested in supporting herself would be somewhat stressed out and depressed if she is ordered to do so instead of demanding that her former partner or the government should support her. Still more unfortunate is that her wants, rather than her needs, may never be satiated no matter how much support is ordered. Hans Christian Andersen described the syndrome in his story about the fisherman’s wife.

The expectation that women would get married, have children, and be supported by their husbands changed many decades ago. No woman under the retirement age in Canada can make a credible claim that marriage has prevented her from pursuing her ambitions, no matter what her chosen field. Madame Chief Justice of Canada is a perfect example of that. As is the Governor General, just mention two. Most of the successful women in the world are, or have been, wives and mothers. Many of the least successful, welfare dependent, women have never been married.

Marriage in Canada is a contract between two consenting adults who have reached a certain stage of maturity and have had ample time to decide what they want to do with their lives. The only ambition that many women, horror of horrors, have is to have children, and maybe get married, in order to avoid employment.

[4] "When the relationship started, Mrs. Bracklow held employment with full health and disability benefits. Shortly after the couple started living together, she left this job to look for a management position. Mr. Bracklow supported this decision."

The excuse that the husband supported the wife’s decision is routinely used to justify the order for spousal support. Yet, any man who would not support his wife’s decision concerning her life choices would become a social outcast. It is totally inconceivable that any husband would have the power either to force his wife to enter the workforce or to stay out of it.

Married and divorced women have the freedom to choose to be gainfully employed or to be supported by their male partners, or even, in a rare case, support their stay-at-home husbands, as long as the decision is theirs, not their husbands'. Men and never married women do not have that choice. One can almost hear the thunder from the dais if a woman told the court that she had to support her family as her husband preferred to stay at home and look after the children. There is not a shadow of doubt in my mind that the husband would be ordered to end his irresponsible lifestyle, get off his backside, earn a living, and let his wife stay at home. If a marriage where the wife was th ebreadwinner ended in divorce, the husband would be ordered pay "compensatory" spousal support to the wife as she had supported him during the marriage. Yet, the man is ordered to "compensate" his wife who chose to stay out of the labour force, no matter how well qualified she was to earn a living. Even if he provided her with nannies and other household help.

There were no foregone careers or missed opportunities in the Bracklow marriage that were due to the marriage or its breakdown. Nor is there any proof that any woman who chooses to stay out of gainful employment considers it to be a sacrifice. Rather, recent public opinion polls, though not scientific, indicate that women regard it a privilege to be able to stay at home and be supported by their husbands or ex-husbands who often work overtime in order to provide some luxuries to their wives. By all logic, the one who enjoyed the privilege of having a choice should compensate the one who made it possible and thus missed his own opportunity to choose what he wants to do and how many hours a day he wants to work. Single men and all women can decide to work for a few months a year and take the rest of the year off. A man who has a family to support cannot do that.

The clause that a partner, invariably the female, who suffered a loss because of the marriage breakdown is eligible for support is illogical. The partner who benefited from the marriage obviously suffers from its breakdown unless the other partner is wealthy enough to continue to support her at the same level that she enjoyed during the marriage. No matter which way we look at it, a man who shares his salary with his wife loses as much as are her expenses. Thus the partner, usually the husband, who supported both of them during the marriage, and thus suffered a loss from the marriage, will also be made to suffer a loss from the marriage breakdown. According to Madam Chief Justice of Canada, this something to celebrate.

The case law presents indisputable evidence that anti-male bias is the rule rather than the exception when spousal support awards are made.

Though the child support orders now are sufficient to qualify as alimony, also called spousal support, judges often issue a separate order as well.

According to Ms. Brazeau:

One lawyer wrote that both parents should be attributed income if unemployed or underemployed and he gave an example: "In other words, if a mother has been trained as a nurse, full-time nursing income should be attributed to her unless she can produce three recent rejection letters" One can almost hear the "tut-tut"

One need only look at the recent rulings by the Ontario Appeal Court to see that the courts do not accept that presumption:

In Adams v. Adams the court ruled that Mrs. Adams, who is a qualified nurse, should not be asked to seek gainful employment though her children are in their teens and twenties, but that Dr. Adams should continue to pay her child and spousal support because he had voluntarily supported her during the marriage. What would have happened to him if he had not??

Let’s not forget Mrs. Adams chose not to practise her profession during the marriage. She would have no difficulty in finding employment considering that there is an acute shortage of nurses in Ontario. It is hard to perceive that the expectation that Mrs. Adams returned to her profession is anything but realistic. The trial judge rejected Dr. Adams’ submissions that he had supported his family over and above what was necessary: " … Dr. Adams voluntarily made prepayments on the mortgage and thereby voluntarily accrued a benefit to his wife. … Indeed, Dr. Adams concluded his testimony at the trial on thissue by saying that he agreed with Mrs. Adams’ counsel "that the primary reason was to provide a roof over the heads of my family".

In a just society, Mrs. Adams who filed for the divorce should compensate Dr. Adams for the benefits that he provided her during the marriage.

Looking at the case law one can only conclude that the courts apply two different standards, as suggested by the Department of Justice Canada.

In Quintal v. Quintal (1997,Ont. Gen. Div.) husband lost his job with the RCMP due to some disciplinary problems. The court imputed an income to him of $25,000 because he could probably find work as a security person or something along those lines, but held off the payments for 6 months to give him time to get a job. [see Wright v. Wright below where the court considered that the wife should be able to choose what she wants to do]

In Heung v. Heung (1997 BCCA 0604) the husband owed over $100,000 in arrears and sought to vary and wipe them out because his income had dropped significantly and he felt his wife, a qualified draftsperson who had sizeable personal assets, should be taking steps to support herself. Court held no.

In Wright v. Wright (2000 BCSC 1463), the judge said: "it is not for Alan Wright to dictate a career choice to his former wife. He has a challenging job, and it is reasonable that Dawn Wright should be given an equal crack at more fulfilling work".

In Graham v. Graham (2001 BCSC 1527) The defendant was a labourer in his early years. He was injured in a logging accident in 1971 and returned to labouring but found the work aggravated his 1971 injury. He went to university in 1976, but when their first child was born money was tight and he returned to labouring work. By 1982 he had become disabled by post-traumatic osteoarthritis and reflex sympathy dystrophy (RSD). Despite his health problems he supported his family and made efforts to retrain. In 1994 he was severely injured in a work-related car accident. He suffered head injuries which resulted in a serious visual impairment, chronic nausea and vomiting, amongst others. His total annual income from his two pensions was $66,288.00. His pensions were fixed and he was incapable of working at an occupation. He had a new wife and her handicapped daughter to support. The former wife was living in a same sex relationship and the judge didn’t think that she was interested in finding employment. The evidence did not suggest that she was physically unable to take training or to work. Her doctors did not say that her medical condition [depression] found in 2000, was permanent. The judge increased spousal support on the premise that she will actively pursue a career by enrolling in the College to qualify herself for the workforce.

In Spence v. Michell (1997, Ont. C.A.) parties had never married. Common law wife agreed to move from Quebec to Ontario only if husband promised she would have the security of a home. He purchased a home in her name. They separated and he claimed a constructive or resulting trust. Court of Appeal upheld lower court finding that the home was a gift and that there was never any common intention that it was to be held by her in trust for both of them. Accordingly, the presumption of a resulting trust was rebutted (There can be no doubt that the home was intended to be shared equally by both parties. If she had purchased the home under his name, would it still have been regarded as gift?)

In Knechtel v. Knechtel (1997 BCSC.) the judge said that "in today's world remarriage doesn't necessarily offer long term security". Former husband has to continue paying spousal support though the wife had remarried. Predictably, the new husband as well if the current marriage breaks up as well.

In McKay v. McKay (2000 B.C.S.C .1393) The husband sought to discontinue the payment of spousal support to his former wife who had remarried and had also sold the former matrimonial home ... The application was dismissed, with costs. "The Divorce Act does not mandate rescission of a spousal support order on remarriage; it is a change within the meaning of S.17(4) and the court has a discretion to exercise."

As the above cited case law documents Canadian courts have adopted two separate codes of conduct when dealing with child support and alimony, based on sex and social status. This violates articles 1-12, 16-17, and 24-25 of the Universal Declaration of Human Rights to which Canada is a signatory.

Article 1.

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2.

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3.

Everyone has the right to life, liberty and security of person.

Article 4.

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5.

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6.

Everyone has the right to recognition everywhere as a person before the law.

Article 7.

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8.

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9.

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10.

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11.

(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12.

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 16.

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17.

(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

Article 24.

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25.

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

_____________________
Notes:

  1. The decision was appealed in the Supreme Court; see Miglin v. Miglin, (2003-04-17) SCC

Next: Part IV, Best Interest of the Children and Conclusions


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Posted 2002 01 05
Updates:
2003 04 21 (appended footnote pertaining to final decision of the Supreme Court in the Miglin case)