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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 07-31-2006, 10:25 AM
Divorcemanagement Divorcemanagement is offline
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Default Retroactive Child Support Ruling - SCC

As I expected, the SCC ruled against the four fathers in the big retroactive child support case - here is the link to the story:

http://tinyurl.com/ev95z

It was a unanimous ruling which basically says that payors of support have an obligation to report the increase in support at the time of the increase - not once a year as is currently done in most cases. So if you don't report it immediately then it's really "at your peril".

This decision means that there will be a lot more litigation on a more frequent basis for a variety of reasons:

a) Paying for other children
b) Reporting a drop in income - this means that the recipient of support would argue that the payor is purposefully under-employing himself/herself.
c) More undue hardship claims

What needs to be clear is that the fathers in the case before the SCC were not deadbeat parents - they were following their existing agreements and/or court orders. What's perhaps troubling about this decision is that no mechanism exists in the law that provides for the reporting of the income. My sense is that Parliament will have to open the books on child support law to either tighten it up or clarify the rules.

This decision isn't exactly a victory for recipients of support either. Because no mechanism exists that provides justification for asking for disclosure if you suspect that your ex has had an increase in their income, you have to be very careful about opening pandoras magic box if litigation if you choose to pursue action against your former spouse. As well, if you do get disclosure and your ex-spouse has had a decrease in his/her income, are you prepared to accept a lower monthly amount or are you going to impute his/her income. The cost of accessing the courts can be prohibitive so you really have to go with your gut on this one.

I predict that child support will be opened up for legislative change or "fixing" in the fall sitting of the House of Commons.

Last edited by Divorcemanagement; 07-31-2006 at 10:35 AM.
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Old 07-31-2006, 10:37 AM
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You're quick - I was just about to post about this story :-)
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Old 07-31-2006, 10:39 AM
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Here's the official text:

http://scc.lexum.umontreal.ca/en/200...2006scc37.html
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Old 07-31-2006, 10:46 AM
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It's early and I am expecting a flood of calls on this one..

Here's the dilemma for governement - how do you create a mechanism in the various provincial maintenance enforcement programs to monitor income of child support payors - and how do you do it so that it doesn't become another billion dollar boondogle like the firearms registry!
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Old 07-31-2006, 11:02 AM
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The family law system fails again. Talk about the ex having total control, I feel like I ahve no control over my life anymore. My ex's will be laughing all the way to the bank. Maybe I'll move to Panama now
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Old 07-31-2006, 11:08 AM
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There is going to be some degree of chaos in the courts until the government addresses the way in which income is to be reported. If it's through maintenance enforcement, good luck on getting the provinces to agree to the way in which monitoring will be done and who will foot the bill for the program. Most MEP offices are understaffed and underfunded already...
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Old 07-31-2006, 11:31 AM
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Once again we see a symptom of a larger problem and once again the media fuels the fire of a stereotypical payor (i.e. dad). The larger problem, IMO, is the divorce laws, family law and CSG are ill-thought out messes.

One of the intangible human factors in all this is that men are completely afraid of the courts and the system.

Off the top of my head, lets look at some of the unevenness in income disclosure, court orders, CSG, etc.

So, it stands to reason that the payor must increase payment when income goes up (as per the SCC) and for that matter, common sense. Having not read the decision, did they also state that payments automatically go down when income decreases? What about losing your job? Having read several cases and personal experiences, having a decrease in income or losing your job usually equates to NO CHANGE in support. Judges love to impute income and so on.

Interesting too how legal fees for raising support are tax deductable. Lowering support is not.

Lets skip on over to the FRO. On there FAQ page they state:

What is the Family Responsibility Office?
The Family Responsibility Office (FRO) works under the authority of the Family Responsibility and Support Arrears Enforcement Act, 1996. Its role is to help support payments flow from payors (people who make support payments) to recipients (people who receive them).

What does the Family Responsibility Office do?
The Family Responsibility Office (FRO) receives every support order made by a court in Ontario and enforces the amounts owed under the order.
The FRO has the legal authority to collect court-ordered support payments and arrears of support and to take any of the following enforcement actions against those parents who do not meet their support responsibilities:

Okay... so everyone must go back to adjust their court order (since the system has no inherent mechanism to make adjustments). Once again, income up, support up, income down... not so black and white.

Or, lets say you reduce you support due to reduced income. Well, thats a no-no with the FRO. You are now in arrears! No where on the site could I find information regarding reduced income or any form to indicate reduced income.

Also, child support awards (the table amount) are increasingly getting bigger and bigger. Yikes... it is about $500 per child. And it just went up.

I think they need to look at the entire picture here... not just some guys following the court order.
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Old 07-31-2006, 11:51 AM
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Decent Dad:

Everything you are mentioning points to why this decision though on the surface upholds a moral requirement for a payor to report income increases voluntarily, creates a framework for increased litigation on a case by case basis and a policy quagmire for the Government of Canada. The only way to ensure 100% compliance is to have everyone reporting their income to MEP, but there is no agreement with the provinces on how that would work and who would foot the bill. I wouldn't be surprised if the whole issue is re-examined.
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Old 07-31-2006, 11:51 AM
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D.B.S. v. S.R.G. is certainly interesting. Full of double-standards...

Lines like this:

" Finally, she remarked that even if the award might not have helped the children, the potential it had to compensate the mother for her past sacrifices should have been considered."

Wow... does that not scream back-door alimony. So now CS is to compensate the mother. Interesting... Again, uneven implementation.
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Old 07-31-2006, 11:57 AM
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I'm a bit unclear on this ruling. Do I have to tell my ex how much of a raise I get everytime I get one? If so do I adjust the child support payment myself or do I still need to get it done through the courts. There is already a huge backlog, this will only tie the courts up even more.
Furthermore, As was mentioned in earlier posts what happens if my income reduces as a result of me being to stressed out to work, and I have to go on WSIB.
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