December 11, 2020 by Robert Franklin, JD, Member, National Board of Directors
In the past, I’ve written a fair amount about child support guidelines and laws in Canada. Here, here and here are previous posts of mine and they include valuable links to articles by Christy Blatchford and another NPO post by Lucien Khodeir who’s certainly one of the most knowledgeable experts in the world on Canadian child support law.
In those posts, I (and others) made a few basic points. First, Canada’s child support guidelines are based on no economic data. That’s right, none. And that’s not my opinion, but that of the Fraser Institute that studied the guidelines in detail. Second, they’re based on assumptions of fact that are rarely true.
According to the report, the Formula assumes that the child-support recipient (Recipient)
- earns whatever income the child-support payer (Payer) earns,
- spends all her time and the Payer spends no time with the child,
- incurs all child-related expenses and the Payer incurs no child-related expenses,
- spends a prescribed percentage of her income in child-related expenses, and
- resides only with the child and the Payer resides alone.
Third, those assumptions tend strongly to result in a net transfer of wealth from payers to recipients. That is, when the actual cost of raising the child is subtracted from the child support payments, the recipient ends up with positive net earnings.
Fourth, because about 90% of Canadian child support recipients are mothers, the result of the guidelines is a net transfer of wealth from fathers to mothers. Fifth, that was the plan all along. Researchers Douglas Allen and Paul Millar found the same thing. Radical feminist advocates used the flawed research of Lenore Weizman to claim that divorce impoverished women and the Canadian government responded with the guidelines that are mandatory on judges deciding child support issues.
Sixth, the guidelines are so draconian that fathers can be driven to bankruptcy and suicide by them. The imputation of income often results in fathers being ordered to pay more in child support than they earn. They then fall behind and interest and fees increase the amount owed. That can result in the astonishing situation in which a father can pay everything he’s been ordered to pay in child support and still fall further behind.
Seventh, second wives are often saddled with paying to support children they obviously took no part in conceiving. Second wives, not wanting their husbands to go to prison, often try to make up the difference between what their husbands owe and what they earn.
Finally, prior to the establishment of the guidelines, Canadians said they were satisfied with the existing law and how much they were paying or receiving in child support. A survey of fathers and mothers conducted in 1990 found broad satisfaction with how the system worked, and how much they paid and how much they received. The guidelines “fixed” what wasn’t broken.
Against that backdrop, we now learn that the guidelines may violate Canadian federal law. There is currently pending in the provincial court for Alberta a lawsuit challenging the child support guidelines. It does so on the legal theory that the guidelines violate Section 26.1(2) of the Divorce Act.
Section 26.1(2) of the Act requires the Guidelines to allocate the financial responsibility for the children based on each parent’s relative ability to contribute to the obligation. However, the Guidelines do not do this. Instead, they are skewed very much in favour of the custodial parent.
That quotation is from a bulletin issued by the plaintiffs in the case. The point that the guidelines are skewed in favor of recipient parents is, of course, very much what I and many others have said for years.
Now, what’s most interesting about the bulletin is that the Canadian Department of Justice has used every weapon in its arsenal to try to avoid a court’s ruling on the issue. Indeed, legal challenges to the guidelines date to some 20 years ago when our friend Lucien Khodeir attempted to litigate the matter pro se. Since then, the DOJ has used procedural techniques to thwart resolution of the matter, which leads us “to an overwhelming question:” If the Canadian government were confident that the guidelines accord with the requirements of Canadian law, why don’t they simply put aside their procedural quibbles and let the matter be decided on its merits? It’s as if they aren’t confident of the outcome.
It’s also as if the government is content with the very thing that makes the guidelines so noxious – the transfer of wealth from fathers to mothers. Why else the 20-year delay? The government knows as well as anyone the impacts of the guidelines, so why would they pursue the delaying tactics they’ve used except to continue those very impacts?
The Alberta court held a hearing on December 2-4 of this year. With any luck, there’ll be a decision soon.