Globe and Mail

Supreme Court backs mother in epic child-support battle

Millionaire lawyer is ordered to pay $10,034 a month

KIRK MAKIN
Justice Reporter
The Globe and Mail
Friday, September 17, 1999

The Supreme Court of Canada ended a drawn-out, poisonous and very public legal battle between a multimillionaire and his ex-wife yesterday when it ordered Toronto lawyer Thomas Baker to pay $10,034 a month in child support.

In upholding a lower court's award to Mr. Baker's former spouse Monica Francis, the court said the globetrotting businessman, whose worth has been estimated at $78-million, failed to convince them that the award was unsuitably high for a man of his fabulous means.

"Parliament did not choose to impose a cap or upper limit on child-support payments, and the appellant has advanced no reason why this court should do so," Mr. Justice Michel Bastarache wrote in a unanimous judgment.

"In my opinion, child support undeniably involves some form of wealth transfer to the children, and will often produce an indirect benefit to the custodial parent."

The decision, representing the court's first interpretation of 1997 federal child-support guidelines, ends a gripping spectacle that came to resemble a Peyton Place episode, set against the backdrop of a deadly serious legal issue capable of affecting any upper-income family.

"It is a real validation of my fight," an elated Ms. Francis said in an interview yesterday.

"I can only hope nobody else has to go through what I went through emotionally over the past decade. Now, I just want my kids and I to live happily ever after for the rest of our lives."
The dispute began in 1985, when Mr. Baker walked out on his young wife after announcing their marriage was on the rocks. The distraught woman was left with their two babies -- one 20 months old and the other just five days old.

A series of business deals quickly transformed Mr. Baker into a very wealthy man. Meanwhile, Ms. Francis got by on unemployment cheques. Within three months, she was forced to return to her teaching job.

Over the years, Mr. Baker treated his daughters -- Lauren, 15, and Lesley, 14 -- to numerous exotic vacations, sumptuous dinners and generous gifts. But he has staunchly resisted supplying anything from which Ms. Francis might benefit.

Yesterday, Ms. Francis spoke sadly of the approximate $1-million the battle as cost the couple.

"This case had everything to do with money, yet nothing to do with money," she said. "It was a drop in the bucket to him."

The court-ordered payments are scheduled to end when Lesley and Lauren reach the age of 18. However, Ms. Francis's lawyer Nicole Tellier said she cannot rule out the possibility of another legal battle over whether the payments should continue if the children are still in school.

Mr. Baker refused requests for an interview yesterday. However, his lawyer Stephen Grant agreed that in an ideal world, it would not cost enormous sums of money to settle this sort of dispute.

"Unfortunately, we had a disagreement over whether Mr. Baker was really transferring wealth to her by paying spousal support under the guise of child-support payments," Mr. Grant said.

But Ms. Tellier said that a quite different principle was at stake. She said wealthy non-custodial parents should not be able to lavish material goods on their children only to send them back to relative deprivation in the home of the poorer custodial parent.

"This decision says that just because you are rich, it doesn't mean you can carve out an exemption from the child-support guidelines," Ms. Tellier said.

The guidelines were created by the federal government in 1997, with the aim of bringing consistency to child-support orders. The case provided the court with its first opportunity to interpret those guidelines.

The award to Ms. Francis was based on a category affecting those with incomes over $150,000. In a brief, dryly written endorsement of the guidelines, Judge Bastarache said they must be interpreted with a sense of fairness and flexibility.

"Focusing solely on the size of the child support payment disregards one of the factors relevant to the appropriateness inquiry -- the needs of the children," he wrote.

"If children do have actual needs equal to or greater than the applicable guidelines amount, I see no reason to disallow this payment simply because it involves a large amount of money."

Judge Bastarache also said the Ontario Court of Appeal was wrong to rule that judges have the discretion to go above the guidelines but not below them.

But Mr. Grant said this was a Pyrrhic victory for his client.

"The court agreed with us that it was perfectly open to the trial judge to have said the amount of the award was excessive. But they refused to apply it to our case. I have to live with that. They are the court."

However, Ms. Tellier said that any litigant hoping to reduce an award will have to produce "clear and compelling" evidence that the amount in the guidelines is too high.

"That is a fairly high standard," she said. "I hope this will make a more level playing field in future for [custodial] spouses, because it is the wealthy who litigate."

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