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(Canada) Child Support: An unconstitutional entitlement

The laws mandating how much separated parents must pay to support their children are intrusive and much more arduous that what is required for parents in intact relationships.

Western Standard (Canada)
16 April 2008

An unconstitutional entitlement
By Grant Brown

The laws mandating how much separated parents must pay to support their children are intrusive and much more arduous that what is required for parents in intact relationships. The responsibility to pay falls almost exclusively on fathers. In Edmonton, 97% of registered payors of child support are men, a typical figure nationwide. How does this child support system square with the Section 15 Charter guarantee that every individual has the right to equal protection and benefit of the law without discrimination based on sex?

When parents separate, a legal presumption arises that they must provide a proper standard of living for their children in the form of child support. If the separated parents are married, child-support obligation arises from section 15.1 of the Divorce Act (Canada). If the separated parents are not married, the obligation arises from provincial legislation that mimics the Federal Child Support Guidelines.

The level of child support depends on a host of variables, such as the custodial regime, the division of the matrimonial property, extraordinary expenses related to exercising access to the children, the tax treatment of the parents' incomes, whether or not there is another potential child support payor, etc. But the presumptive amount of child support comes from tables that are derived by calculating, on the basis of Statistics Canada surveys, what the average intact family spends on their children for food, clothing, shelter, transportation, and other "normal" expenses. Extra expenses for medical and dental treatments or insurance, extra-curricular activities, post-secondary education, and so on are added on top of the table amounts, in proportion to the parents' incomes.

Determining a parent's entitlement to child support is an extremely intrusive process. The payor is required to produce and may be cross-examined on income tax records, financial statements showing self-employed earnings, bank and credit-card statements, and much, much more for at least as long as the child is in school. If a judge is not satisfied that a parent has completely disclosed his or her income, income may be imputed on the basis of little more than an allegation.

Once a court has made an order, or the parents have entered into an agreement, either parent may register the order or agreement with a maintenance enforcement agency. These agencies have wide-ranging powers to collect child support, including garnisheeing wages, putting liens on the payor's property, intercepting income-tax refunds and GST rebates, and suspending drivers' licenses and passports. Interest and penalties are charged on "late" payments, even if the fault was with the agency for taking too long to process a cheque.

Payors who fall into arrears, often through no fault of their own, become debtors who can be jailed. (These unfortunates are typically unrepresented, because they can afford neither child support nor a lawyer to fight the existing support order.)

A lot of very high-priced labour goes into making sure child support is paid: lawyers, accountants, judges, maintenance enforcement agents - even employers and government agencies that have to deal with garnishees and property registrations. Does all of this effort and expense do much good?

The answer to that question might seem obvious: just look at how much money is transferred each year for the support of children - even net of the high costs of determining and enforcing the obligation. But that is a false measure for all kinds of reasons.

First, how much money would be transferred anyway, in the absence of a child-support regime?

Second, to what extent do recipients of child support reduce their work commitments because child support payments allow them to do so?

Third, how much of the child support received is actually spent on the children, as opposed to being disguised spousal support?

In my experience as a family-law lawyer, I also see the incalculable corrosive effects this entitlement has on father-child relations. (I might as well drop the pretence of gender neutral language at this point. In Edmonton, 97% of registered payors of child support are men, which is typical.) Following Gresham's Law, child support too often drives out affection and respect as the currency for post-separation family relations.

While most stay-at-home mothers are grateful for the hard work their partners perform which allows them the opportunity to look after their children, a sense of (inflated) entitlement replaces gratitude for child-support recipients. Mothers are able to buy the affection of their children with their father's money, while teaching them that their dad is a "deadbeat" because he says he can't afford to give more, or can't afford to lavish presents on the children when they are with him. Mothers get to choose all of the activities the children participate in, while handing fathers the bill for it.

Fathers, already pushed to the margins of parental authority by biased custody orders, are unable to teach their children responsibility and the normal give-and-take of living because they have nothing to negotiate with. "Get real, Dad. You can't ground me, and you can't even cut off my allowance! You are going to pay for my hockey and my college education whether or not I work as hard as you like in school, stay away from the bad crowd, or have anything to do with you. Mom will see to it." I have encountered adult children who lie bald-faced to the courts and maintenance enforcement agency about going to school, not living common-law, and not having a job, just in order to keep child support flowing to their mothers for as long as possible.

It is rare for a father to not want to see his children well provided for. But most fathers at least want to be appreciated as the provider, and to be able to impose reasonable conditions on the continued receipt of their provisions.

Our legal system turns a blind eye to the fact that this intrusive, draconian, and corrosive child-support regime is discriminatory, contrary to s. 15 of the Charter of Rights and Freedoms. To see this, simply compare how the law treats parents in intact relationships to how it treats separated parents.

Parents in an intact relationship have a legal duty to provide only the necessities of life to their children - and not a stitch more. Child welfare authorities will not intervene absent evidence of abuse or fairly serious neglect of children whose parents cohabit. But as soon as parents separate, the child support regime takes over without even the slightest evidence that the children are not receiving the necessities of life. Immediately upon separation, a father's obligation to provide for his children goes from providing (half of) the necessities of life to providing what the mathematically average child of a Canadian family with his income might get by way of material benefits.

Not only does the child-support regime discriminate against separated parents relative to parents in intact relationships, this discrimination has a hugely disproportionate negative effect on men - 'sex' being an enumerated ground in s. 15. The only genuine legal question is whether the discrimination implied by the child-support legislation can be justified by s. 1 of the Charter - i.e. whether it can be shown to be "demonstrably justified in a free and democratic society."

The well-entrenched Oakes test sets out what the government must show to justify legislation that contravenes a Charter right:

1. The legislation must pursue a pressing and substantial objective; and

2. The means prescribed by the legislation must be proportional to its ends. More particularly:

a) The means must be rationally connected to the objective;

b) There must be minimal impairment of rights; and

c) There must be proportionality between the infringement and the objective of the legislation.

I leave it as an exercise for the reader to determine whether or not the Oakes test is met by the child-support regime. One word of caution: make sure your analysis is consistent. If you are able to find an objective in the current child support regime that is "pressing and substantial," then the means employed by the legislation must be proportional to meeting that objective.

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Dr. Grant Brown earned his Ph.D. in philosophy from Oxford University.

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