National Post

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Friday, September 17, 1999

Ruling will affect case of Ontario man ordered to pay $17,000 per month
Elena Cherney
National Post

(Stephen) Grant

Lawyers agreed yesterday that the Supreme Court's ruling in the child support case of Thomas Baker and Monica Francis could affect how divorces among Canada's wealthier couples are handled by the courts.

"It sets an absolute precedent," said Stephen Grant, the lawyer for Mr. Baker. "It allows judges certain discretion in setting child support."

In particular, the Supreme Court opened the door for trial judges in cases where the paying parent earns more than $150,000 to decide that payments should be reduced below the level indicated by federal guidelines.

The guidelines' formula sets child support at a specific amount for the first $150,000 of the paying parent's income, plus a percentage of the balance of the earnings.

But sometimes the slice of income claimed by the support payment -- even though it's only .67% for one child and 1.04% for two children -- is clearly more than could be spent on any child.

The Supreme Court ruling is certain to affect at least one case now pending before the Ontario Court of Appeals. Jeffrey Tauber, a Toronto businessman who earns $2.5-million per year, was originally ordered to pay $17,000 per month to his former wife, Michelle, for the support of Samuel, who was 19 months old when the payment schedule was set.

The trial judge used the federal guidelines to calculate Samuel's share of his father's income, but indicated that he would have liked to award a lesser payment, said Gerald Sadvari, Mr. Tauber's lawyer.

But Judge John Jennings could not decrease the payment because of the Ontario Court of Appeals ruling in Baker v. Francis. Last year, Justice Rosalie Abella ruled that courts have the power to increase payments above the amount indicated by federal guidelines, but do not have the power to decrease it.

The Supreme Court's ruling yesterday, however, will enable the Ontario Court of Appeal to decrease Mr. Tauber's payments.

It was a precedent that Justice John Laskin of the Ontario Court of Appeals appeared to anticipate last spring, when he granted Mr. Tauber a stay on his $17,000 monthly payments.

Justice Laskin wrote that "Mr. Tauber's appeal turns mainly on the correctness of this court's decision in Francis v. Baker," and noted that the Supreme Court's decision to hear the case -- a rare foray for the top court into family law -- "shows that there is at least a serious question about the correctness of Francis v. Baker ... Other trial courts have disagreed with this court's reasoning in Francis v. Baker."

Justice Laskin decided to reduce Mr. Tauber's monthly payments to Mrs. Tauber to $11,000, with another $6,000 going directly into "an interest-bearing trust account" for Samuel.

In his decision to stay Mr. Tauber's payments, Justice Laskin noted that based on Mrs. Tauber's own budget, once he removed "expenses solely for her own benefit such as clothing, $11,000 seems to me to be a generous figure."

The budget submitted by Mrs. Tauber, who lists her occupation as "self-employed photo stylist," said she spent $3,070 on expenses related to Sam. The nanny was the biggest expense, at $1,700 monthly. Another $300 monthly went to clothes to outfit the toddler. He ingested $20 worth of vitamins every month, took part in $100 worth of "children's activities," and was the recipient of $750 worth of babysitting hours. His mother also spent $200 monthly on baby gear.

With the remaining $13,930 of the monthly allowance, Mrs. Tauber bought herself $1,200 worth of clothes, spent $800 on restaurant meals, $4,120 on rent, $360 on a therapist, $125 on alcohol and tobacco, $150 on life insurance premiums, $500 on grooming and $85 on a cellphone.

The $1,250 she spent on groceries, she noted in an appendix to her budget, included meals for Sam and his nanny, and her $730 in monthly toiletry bills included $300 in diapers and supplies for the baby.

Mrs. Tauber also budgeted herself $4,000 annually for entertainment, $7,000 for recreation, $15,000 for vacations and $3,000 for gifts.

While the Abella ruling made it impossible for any judge to decrease Mr. Tauber's payments below $17,000, yesterday's Supreme Court ruling changes his situation, said Mr. Sadvari. "It ensures the success of our appeal," he said.

"The trial judge said that except for the reasoning in Baker v. Francis, he would have ordered a substantially lower sum."

Mr. Sadvari, who has been holding the $6,000 in monthly trust money for Samuel, said he would have handed Mrs. Tauber the money had the court ruled differently.

Now, he will hold on to it until the case is settled.

Mr. Tauber and his wife were married for only 18 months and their son was nine months old when they separated. He is now 25 months old.

Copyright Southam Inc.