High court ruling on child support could have wide-ranging impact

OTTAWA (CP) - The country's top court, in a decision that could affect thousands of divorced and separated couples, is preparing to iron out the wrinkles in the federal law governing child support payments. At issue is whether the ex-spouses who foot the bill - the fathers in most cases - have an obligation to report increases in income that could boost their court-ordered payments.

Closely related is a second question: whether they can be hit with hefty retroactive bills if they don't keep their former partners up to date on their financial capabilities.

The legal principles laid down by the Supreme Court of Canada in the judgment set for Monday could range far beyond the immediate cases at hand. There's no easy way of calculating the total dollars at stake across the country, but it could run into the hundreds of millions - if not billions.

"We think that something in the range of 700,000 families could be affected by this decision," says Deidre Smith, the lawyer for four Alberta fathers challenging support awards imposed on them.

"It has the potential to have an enormous financial impact on an enormous number of Canadians."

Carole Curtis, the lawyer for two of the four women receiving support payments, is more guarded.

It's true there are hundreds of thousands of support recipients in Canada, she says. But not all of them will be itching for a fight with their ex-partners, even if the Supreme Court opens the door for them.

"It isn't possible to know how may people will actually go back to court or end up in litigation," says Curtis.

There could, however, be policy repercussions for the federal government, which last revamped the federal Divorce Act in 1997 to establish guidelines for child support.

The aim was to bring some order to a notoriously uneven system in which support orders had varied wildly from case to case. The new regime established a grid system that tied the amount of support to the ability to pay and the number of children.

But enforcement turned out to be a problem, partly because of income fluctuations as people lost old jobs and took new ones in the years following the break-up of their marriages or common-law relationships.

Changing custody arrangements also complicated things as children moved back and forth between mother and father.

In fact, says Smith, it's typically an argument over custody, or some other falling-out between parents or children, that triggers a battle over support money.

"We're talking about separated families, not people who are great at problem-solving," she says. "It's usually when something else is happening that the support issue gets intertwined."

In the four Alberta cases, Smiths points out, the fathers dutifully paid everything they owed under the initial support orders made by the courts when they divorced or separated.

"None of them are deadbeat dads, not a single one."

Curtis retorts that they may have stuck to the original deals, but they never told their ex-partners their incomes had gone up and they could now afford to pay more under the federal guidelines.

"They were paying the wrong amount, and they knew they were paying the wrong amount."

When Parliament adopted the grid system nine years ago, there was talk of setting up a federal-provincial enforcement mechanism that would combine income tax data with custody information and automatically update support payments every year.

The system never came into force, in part because Ottawa and the provinces couldn't agree on how to finance it. Instead, the federal government set up four "pilot projects" across the country that have yet to lead to a national enforcement scheme.

That has effectively left the onus on women who think they're being shortchanged to go to court and demand an increase in support payments.

It's a burden many choose not to bear, says Curtis.

She argues that, unlike men, "women aren't socialized to enjoy the fight. They're socialized to want to end the fight."

In the cases before the Supreme Court, two women succeeded and two failed in their initial efforts to win an increase in monthly payments.

At the Alberta Court of Appeal, however, they all won. The four fathers were ordered to fork over retroactive payments ranging from $10,000 to $100,000.

At the upper end of the spectrum the $100,000 worked out to more than half the current annual income of one man, by far the wealthiest of the four. At the other end, the $10,000 was assessed against a man who has never earned more than $23,000 a year.

The upshot, both sides agree, is that if the orders stand it will likely take years to pay off the amounts in instalments.

© The Canadian Press, 2006