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Friday, September 17, 1999

The ties that bind -- fiscally and forever
The high court's view of marriage and parenthood as lifelong contracts may make people reluctant to commit
Charlie Gillis
National Post

Rene Johnston, National Post
According to the Supreme Court of Canada, children should enjoy the fruits of a parent's labour, even if that parent doesn't have custody. Thomas Baker, who lives in this palatial mansion on Toronto's tony Bridle Path, must continue to pay child support in the amount of $10,034 per month.

A Supreme Court of Canada decision upholding a Toronto millionaire's monthly $10,034 child support payments will further strengthen the notion that marriage and parenthood are serious commitments, experts said yesterday.

But the Baker v. Francis decision may also give pause to Canadians who are considering embarking down either road, observers noted, as the court increasingly attaches long-term financial values to human relationships.

"People will continue to get out of bad marriages," said Carole Curtis, a family lawyer in Toronto who has followed the case closely. "The more interesting question will be whether 20 years from now, people are still getting married at all.

"Marriages and relationships are full of joint decisions, so you wonder, will they want to make these joint decisions in ways that have legal consequences?"

Yesterday's decision was not an unequivocal victory for custodial parents: While the court ruled in favour of Monica Francis, saying her wealthy husband had shown no clear reason why his payments should be lowered, it also ruled that child support payments for parents earning more than $150,000 annually can, in fact, be decreased if the trial judge deems it appropriate.

"Courts must have the discretion to remedy situations where [amounts awarded under child support guidelines] are so in excess of the children's reasonable needs that they no longer qualify as child support," wrote Justice Michel Bastarache.

But the court reaffirmed the idea that support should be tied to the paying spouse's income, noting, "the appellant himself leads a lavish lifestyle and spares no expense on the children when they are with him."

Much was made during the original trial of the contrast between Mr. Baker's and Ms. Francis' standards of living. Court documents and media reports detailed how the pair's two teenage girls would leave their mother's modest home in Toronto's run-down Jane-Finch area to visit their father's palatial, 12,000-square-foot house on the Bridle Path.

European vacations, fine dining and luxury box seats at baseball games were part of Mr. Baker's normal comforts as the president of Seven-Up Canada Inc. -- comforts largely obtained after he divorced Ms. Francis in 1987.

He earned $945,538 per year and his net worth was estimated at $78-million when he appealed his support judgment.

It is the fourth ruling in 10 months to affirm a paying spouse's obligations to his children and ex-spouse long after the sun has set on the marriage.

In February, the top court ordered a Winnipeg businessman, whose income doubled 10 years after his divorce, to double support payments to his son and increase his spousal payments to his former wife.

Walter Hickey, who now earns $200,000 a year, must pay $1,500 a month to support his 18-year-old son.

That decision came just over a month before the controversial Bracklow v. Bracklow ruling, in which the court decided that a British Columbia man's obligation to his former wife could be extended because she was unable to support herself.

Sharon Bracklow suffered emotional and physical problems after her marriage broke down, and was asking for additional support from her husband.

The Supreme Court referred it back to the trial judge to set the amount.

And last November, the high court ruled that a Manitoba step-father must continue to support his stepdaughter after he had ended his six-year common-law relationship with the girl's mother.

Andrea Litvack, a professor of social work at the University of Toronto, said the court appears to be sending a strong message that marriage and parenthood amount to binding "contracts," which are to be entered only with close consideration of the consequences.

"It's going to be a lot harder to get official sanction when you attempt to get out of these obligations," she said.

"There is going to be no support for you in the justice system because their interest is focused on the child. The message is that, once you make a commitment, you're going to be held accountable."

Critics who believe child support laws are being used to simply enrich custodial parents were relieved yesterday by the Supreme Court's ruling that, in cases where the paying spouse's income is above $150,000, the trial judge may actually reduce the amount typically awarded under the guidelines.

Previously in the Baker case, the Ontario Court of Appeal had ruled judges could only raise, not lower, amounts awarded under federal child support guidelines -- a finding one expert described as "absurd."

"If you can increase child support, it's another way of getting money from the husband," said Leonard Pollock, a family lawyer and professor at the University of Alberta law faculty.

"You don't want to rely on him, but you want to extract as much as you can. So the way you do it is through child support.

"What that does, of course, is cause alienation and fights between the parents. I've got one now where the father is alienating his kids [from their mother] so they'll go stay with him. That way he won't have to pay child support. It's quite obvious."

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