Globe and Mail

Paying support: How much is fair?

He left his family and then built a fortune.

Should Thomas Baker share? The Supreme Court will decide.

Monday, April 26, 1999
KIRK MAKIN
Justice Reporter, The Globe and Mail

The ritual was always the same. Every few days, a chauffeur arrived to ferry Lauren and Lesley Baker from the custody of their mother to their father -- a distance of less than 20 kilometres, but psychologically another planet.

With their mother, Monica Francis, the girls lived a no-frills existence in Toronto's crime-ridden Jane-Finch neighbourhood. Vacations usually involved excursions to Canada's Wonderland. Dining out meant Swiss Chalet.

With the arrival of the chauffeur one day a week and every other weekend, life -- in the material sense -- blossomed.

First, there were the creature comforts of Thomas Baker's $5-million mansion in the exclusive Bridle Path district. Life chez papa included a private box at Blue Jay games, fine restaurants, European vacations and ski trips to the Baker chalet at Whistler Mountain.

For as long as 15-year-old Lauren and 13-year-old Lesley can remember, their parents have existed as opposite poles in a poisonous, high-stakes dispute -- a dispute that reaches the Supreme Court of Canada tomorrow.

Beyond its gossipy attractions, the case of Baker v Francis has serious legal ramifications.

In appealing a lower-court award of $10,034 in monthly child support, Mr. Baker maintains that the courts have gone too far in trying to lessen the disparity between the lifestyle his offspring enjoy with him and what their mother is able to offer.

The case will be the first test of the support guidelines Parliament passed in 1997 to streamline litigation and ensure that children's standard of living is equivalent to what they would have had if their parents had not split up.

The questions the court is expected to answer include: Should the guidelines be immutable? Should the judiciary risk moving back toward the old days, in which support awards were arbitrary calculations based on need?
Whether the court confines itself to cases involving a wealthy spouse, or opts to enunciate broad principles covering a vast number of support orders, one thing is certain. The Francis-Baker marital battle in many ways personifies what the guidelines, which set out the percentage of a parent's income that should be paid in child support, were designed to end: costly and gruelling litigation.

"No matter what happens, he has won," Ms. Francis maintained in an interview. "After all, how much of my kids' childhood is left now? I'm so tired of this intricate, never-ending justice system -- it has just sucked the life out of me.

"When this [the marital discord] started, my kids were in diapers. This is all they have ever known. Luckily, my kids are very resilient."

Now 48, Ms. Francis was a 23-year-old high-school teacher when she met Mr. Baker, a divorcee six years her elder, at a Toronto bar in 1976. The couple lived together before marrying in 1979. They saved up to buy a modest home, and had their first child in 1983.

A couple of years later, the marriage broke up.

Eight months pregnant, she was distraught. She had just given up her job to spend a few years bringing up her children. Her only income was the unemployment-insurance cheques she would receive for the next few weeks.

Five days later, she gave birth to Lesley.

"I had only $80 in the bank and no job," Ms. Francis recalled. "I remember sitting on the front steps of my house, with a little baby in my arms and another beside me, waiting for my unemployment cheque so I could buy diapers and formula."

Friends described her as a zombie who worried incessantly about providing for the children.

"It was such an emotional hit; like walking in a fog," Ms. Francis said. "You feel such responsibility for these two human beings you have brought into the world."

Weeks later, she found another teaching job and returned to work. By late fall, she had signed a separation agreement giving her custody of the children. She also received a $30,000 share from the sale of their home, most of its modest contents and the couple's $13,000 1984 Pontiac STE.

Mr. Baker agreed to pay $1,250 a child in monthly support. He also purchased clothing for the girls, paid for private schooling and picked up the bill for a private chauffeur to drive them to and from school.

Ms. Francis scraped together a down payment on a $128,000 home in the Jane-Finch area and, at one point, juggled five loans as she raised her children.

"For so many years, I said: 'Things will be better next year, girls,' " Ms. Francis said. "After five years or so, one of them said to me: 'But you say that every year, Mum.' "

At one point, Mr. Baker offered to buy a $500,000 home for the family -- provided that Ms. Francis agreed never to let any of her other relatives live in it and to vacate if both girls stopped residing with her full-time. She refused.

Meanwhile, Mr. Baker vaulted with stunning speed into the ranks of the super-rich. A rising star at the Toronto law firm of Campbell Godfrey Lewtas, he quickly discovered leveraged buyouts as a recipe for wealth.

While acting as a legal adviser to a couple of companies, he and an acquaintance won control of them. They included Agnew Group and Seven-Up Canada, Ltd. In 1987, Mr. Baker became president and chief executive officer of the soft-drink bottling outfit.

In 1988, after her life had stabilized somewhat, Ms. Francis began legal action to have the separation agreement cancelled. She argued that she signed it at an extremely stressful time and that it did not reflect Mr. Baker's true assets.

Nicole Tellier, her lawyer, argues in a brief to the Supreme Court that Mr. Baker has used his wealth to create a stark disparity between the lives the children led in their dual homes.

"The husband lives the lifestyle of the multimillionaire that he is, and he spares no expense for himself," she wrote. "When the children are with him, they enjoy a lavish life. They experience extremely disparate lifestyles while with each of their parents. His artwork alone -- valued at $235,000 -- is worth more than the children's primary residence with their mother."

Now in his third marriage, Mr. Baker has four other children, two from each relationship.

"The children must not only deal with the difficulties posed by such disparate standards of living with each parent, but they must also contend with the fact that their half-siblings enjoy all the benefits of their father's wealth all the time," Ms. Tellier wrote.

By the time Baker v Francis was finally tried in 1997, the case had traversed what Madam Justice Mary Lou Benotto of the Ontario Court's General Division described as "a litigation maze" of legal motions and delays.

Mr. Baker arrived at the trial with assets totalling $78-million -- including the Bridle Path mansion, a fleet of expensive imported cars, a home in Vancouver and the chalet in B.C.

Ms. Francis, then 46, had a net worth amounting to her $63,000 teaching salary plus pension contributions. Her lawyer at the time, Burke Doran, urged Judge Benotto to consider how such dramatic differences in lifestyle can leave children hurt and confused.

Testifying to a packed courtroom, Ms. Francis said that while her ex-husband's offer of a new home had been tempting, the conditions he attached were intolerable. "It was like I was not their mother, and I am just supposed to be a nanny," she stated. "It is very paternalistic. I am a grown woman, and he is going to control where I live."

Mr. Baker, now 54, did not testify. His lawyer, Stephen Grant, asked Judge Benotto to authorize his client to continue his monthly payments plus other expenses.

Mr. Grant insisted that it would be wrong to force his client to finance a cross-town facsimile of the lifestyle the children enjoyed when under his own roof. He said raising Mr. Baker's payments would be like putting money into Ms. Francis's pocket disguised as child support.

Judge Benotto disagreed. Anticipating the imminent passage of the child- support guidelines, she set monthly payments at the amount the new rules would require for someone in his income bracket -- $10,034 a month.

She also awarded Ms. Francis a lump sum of $500,000 in spousal support, saying the 1985 separation agreement did not preclude such an award.

However, the judge refused to make the support payments retroactive or to cancel the 1985 separation agreement.

She also took some harsh shots at Mr. Baker. "The father's proposal is really to pay the children's school fees, give them money directly, and pay for their clothes and activities when they are with him," she said. "It is unreasonable that he deal directly with an 11- and 13-year-old about their support."

She described Mr. Baker as manipulative, and she said his offer of an upscale home was "paternalistic, malevolent and controlling. Furthermore, his desire to keep money for the children out of the hands of the mother is completely unacceptable."

Judge Benotto described Ms. Francis as a loving mother who, with her children's best interest at heart, had soldiered on after being abandoned. She said Ms. Francis's ambition of becoming a school principal had clearly been short-circuited.

It is time to stop viewing the needs of a child in isolation from the lifestyle he or she would have enjoyed if the parents had remained together, Judge Benotto said. "The higher the level of wealth enjoyed by the parents, the more inappropriate the consideration of basic need becomes."

Mr. Baker appealed the ruling, saying the amount was excessive and that judges are free to revise the guidelines downward in cases where they seem excessive.

The Ontario Court of Appeal upheld Judge Benotto's decision and went even further in interpreting the guidelines. Writing for the majority, Madam Justice Rosalie Abella said judges may actually exceed the recommended payments if they feel it is appropriate, but they cannot undercut them.

Again, Mr. Baker decided to appeal.

Now, on the eve of the Supreme Court hearing, Ms. Francis fears that even if she wins, a major portion of the $500,000 spousal award will have evaporated in a decade's worth of legal fees. (The court, however, could award costs to her.)

Mr. Grant said his client -- who declined to be interviewed -- has suffered from one-sided publicity about utterly irrelevant factors.

"Whatever else can be said, these two people made a separation agreement," he said. "That is what governed their relationship from that point onward. Everything else, in my respectful view, is irrelevant.

"He has been an incredibly generous father to those kids, as well as to his other kids."

Ms. Francis maintains that while the children have had to suffer under her roof, they have been enriched in other ways.

"It's all in how you measure riches," she said. "I think I am far wealthier than Mr. Baker can ever be. I have my kids, a good job and my dignity."

THE GUIDELINES' GOALS

The stated objectives of the Federal Child Support Guidelines:

a. To establish a fair standard of support for children that ensures they continue to benefit from the financial means of both spouses after separation.

b. To reduce conflict and tension between spouses by making the calculation of child support orders more objective.

c. To improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement.

d. To ensure consistent treatment of spouses and children who are in similar circumstances."

Support team
For information on the child support laws, call toll-free, 1-888-373-2222.

DOUBLE TROUBLE

Thomas Baker has other problems these days.

Investors have long questioned a total of $24.4-million that was transferred from two companies he bought into bank accounts in the Cayman Islands.

Criminal charges were laid against him last year, alleging tax fraud, conspiracy and money laundering in connection with corporate takeovers. The charges are still at the preliminary-inquiry stage.

He was ordered in 1997 to pay nearly $600,000 in legal bills submitted by his old firm. In addition, disciplinary proceedings are pending against Mr. Baker at the Law Society of Upper Canada.

They involve whether Mr. Baker was caught in a conflict of interest when he acted as a lawyer for the corporations at the same time as he was arranging to buy them out.

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