Globe and Mail

Marriages come and go, but parenthood is forever

Should children's needs be determined by the wealth of their parents?

The Globe and Mail
Friday, September 17, 1999

Bad relationships falter all the time. Reasonable people realize they have made a mistake and come to an amicable parting of their assets and liabilities.

Walking away is not so easy, though, when children are involved. Just because parents hate each other doesn't mean they stop loving the progeny of their poisoned affections. Besides, children have ongoing emotional, social and economic needs that defy neat categories and columns.

So while marriages come and go, parenthood is forever. But what should forever cost? Should support payments be determined by the needs of children or means of the parents? And what happens if the means of one parent diverge dramatically after the custody and support arrangements have supposedly been settled?

That was the issue in the lengthy and acrimonious dispute between Monica Frieda Francis and Thomas Bruce Baker. Ms. Francis and Mr. Baker married in 1979, separated in 1985 when their second child was five days old and have been in litigation ever since. So far their legal dispute has lasted twice as long as their marriage.

Yesterday the Supreme Court of Canada tried to settle their differences by ordering Mr. Baker to pay his former wife $10,034 a month in child support for their daughters who are now 15 and 14. The court's reasoning is straightforward: Mr. Baker is rich and can afford to pay more than the $2,500 a month the couple agreed upon when they divorced.

By all accounts, the girls seem to be normal, healthy teenagers. They do not have obvious emotional or physical disabilities requiring special care and thus added money. Their mother, who has custody, is a high-school teacher who owns her own home and is not dependent on her former husband for spousal support.

The issue in Baker v. Francis is not the actual needs of the children, but the disparity in their parents' post-divorce lifestyles. Mr. Baker, who grew rich after the couple divorced, has voluntarily paid for his daughters to attend private school and has lavished gifts and holidays on them in the years since he left the marital home. His generosity does not extend to his former wife.

In its unanimous judgment, the Supreme Court agreed with the trial judge that "the assessment of children's 'needs' is influenced by the financial position of their parents." The court also agreed with the appeal-court judge that "child support is not merely spousal support in disguise" and that "the economic well-being of children cannot be separated from that of the parent with whom they live because households tend to function as integrated economic and social units."

Ms. Francis has benefitted from the federal child-support guidelines, which came into effect in May, 1997, 10 years after her divorce from Mr. Baker. The guidelines contain elaborate calculations for child support based on whether the non-custodial parent earns more or less than $150,000 a year. Wisely, the Supreme Court has clarified a decision made by the appeal-court ruling that said child-support awards can be increased at the discretion of a judge in such cases, but they can never be reduced. This is patently absurd. What goes up, must also be able to come down.

Basically, parents should have joint financial responsibility for their children, relative to their means at the time of the divorce. In this case, the support arrangement that seemed reasonable became unreasonable only because the non-custodial parent became very rich. If the situation changed, and the custodial parent subsequently won the lottery or inherited a fortune, should the support payments be lowered or nullified?

This point needs to be clarified, if only for the sake of other children of divorce.

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