Court challenge may force re-write of inequitable Federal Child Support laws

You would think that Roland Auer, 66, has it made: a successful university professor who lives with his wife Victoria and their 12-year-old son Vladimir in a small condo in Saskatoon. Victoria is a trained dentist in her home country, but cannot practice due to professional restrictions in Canada. In addition to supporting Victoria and Vladimir, Roland helps to support Victoria's son from her first marriage, as well as Victoria's elderly parents in Ukraine, following her father being diagnosed and treated for prostate cancer.

Despite earning an above-average income, Roland has had great difficulty in making ends meet, due to the high levels of child support payments he has had to pay to his ex-wife Aysel.

Aysel earns $340,000 per year with her successful medical practice. She lives in a 3,711 square foot, six-bedroom, three-bathroom home in a nice neighborhood in Edmonton, and owns several vehicles. Aysel is married to a lawyer. She travels to Russia and Azerbaijan with her son Nikolaus to visit family on a yearly basis. Nikolaus, now 15, attends a private school in Edmonton, and has been cared for by a nanny throughout his childhood.

Not long after Nikolaus was born in 2005, Aysel left with Nikolaus and never returned. Aysel and Roland were formally divorced three years later.

Aysel does not need Roland's money. She has lots. But, over the years, Roland was pushed into debt to the tune of over $500,000 and was continually forced to access a line of credit secured against his home, to cover his general living expenses and child support obligations.

Roland is challenging the Federal Child Support Guidelines in court because they ignore the realities of new families, new spouses, and changes in financial realities. While called "Guidelines" they are, in fact, the law. The law is applied rigidly by courts in all provinces except Quebec, which developed and now uses a different policy.

At a court hearing in Edmonton December 2-4, Roland's lawyers will argue that the Federal Child Support Guidelines are illegal because they don't comply with the Divorce Act. Canada's Divorce Act requires a child support order to "recognize that the spouses have a joint financial obligation to maintain the child" and "apportion that obligation between the spouses according to their relative abilities to contribute."

The Guidelines depart from these Divorce Act requirements by ignoring the income and financial circumstances of the ex-spouse who receives the child support payments, and by considering only the annual income of the ex-spouse who must pay.

Nipissing University economics professor Chris Sarlo, in a Report submitted to the Court, notes that the Guidelines have no connection to economic studies on the average spending on children; they do not legitimately assess the costs of children; they do not properly account for the means and relative abilities of parents to pay.

The paying ex-spouse must endure the yearly cost and humiliation of disclosing her or his financial information to the custodial parent, while the custodial parent is not required to do likewise. To add insult to injury, there is no mechanism to ensure that child support payments are actually being used for the benefit of the children.

Quebec has developed its own child support system, which uses the income of both parents to determine child support amounts, and the share that each is expected to pay. Quebec adjusts child support amounts when the paying ex-spouse has the children at least 20 percent of the time, to account for her or his child-related costs. Additionally, the Quebec Guidelines attempt to accommodate new relationships and second families. Unlike the federal government, Quebec recognizes that as a parent's income rises, a smaller and smaller percentage of that income is actually needed to pay for the needs of children.

Contrary to what the Divorce Act intends, the Guidelines result in an unjustified money transfer from non-custodial parents to custodial parents, which has little if anything to do with the actual needs of the children.

Roland's ultimate goal is to have the federal government re-write the Guidelines such that they respect and follow the Divorce Act, so that child support obligations are based on the "relative abilities to contribute" of the two parents. After many years of successfully being able to avoid defending the Guidelines on their merits, the federal government must now answer for its policies in court.

Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms. More information about this court challenge is available at Support the Challenge.