National Post

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Monday, March 27, 2000

'This is madness'
Divorced fathers who pay their child support find themselves trapped in a bureaucratic nightmare
Donna Laframboise
National Post

Stan Gal's daughter, Vanessa, is 23 years old and works as a sales specialist at IBM Canada. Nevertheless, the Ontario government garnishees $322 for child support for her from his paycheque each month.

Gal, who is employed by the Regional Municipality of York, just north of Toronto, has been told the deductions will continue until his former wife, Halina Ogonek, acknowledges that their daughter is no longer attending university, or until he secures a court order to this effect.

Like many other divorced parents across the country, Gal, whose wife was awarded sole custody, has discovered that the child-support bureaucracy is a nightmare. There are no checks and balances to guard against such unwarranted payments, nor does it take into account the changes that occur in the lives of the people who pay this support.

If they find themselves unemployed, are forced into lower-paying or part-time jobs, are injured or on strike, they are told that in order to have their child-support obligations adjusted they must hire a lawyer to get a court order. Even in cases in which their child comes to live with them or is taken into foster care by child-protection authorities, it's the same story: Get a court order.

The 11 years since the separation have been financially difficult for Gal. Now, after supporting his daughter for a full five years past voting age, he is having difficulty proving she's no longer a full-time student.

In July, 1997, Gal and Ogonek signed an agreement in the presence of a court official that, after being typed up and endorsed by a judge, became a court order. It compels Ogonek to provide Gal with "written consent" so he can access "medical and educational information" regarding his children.

Six weeks later, Victor Slater, Ogonek's lawyer, informed Gal in writing: "In regard to medical releases and educational releases, none will be provided regarding Vanessa Lynn Gal. In regards [to the two boys, now age 13 and 17] please make your requests on a case by case basis and requests will be submitted to our client."

From 1995 on, Gal received a series of letters from Vanessa's high school telling him that since his daughter had reached the age of 18, the school was no longer allowed to forward her marks without her consent. "Vanessa has indicated to us that she does not wish us to release the information you have requested," the school told him.

When Vanessa, who still cashes her father's Christmas cheques, enrolled at McMaster University in late 1996, she continued to deny her father information. In July, 1998, in order to qualify for his workplace prescription drug plan, she provided him with a document confirming she'd been registered as a student in 1997-98. Although his insurance company requires a new letter confirming enrolment every academic year, no more letters have been forthcoming.

Gal's pain at the loss of his relationship with the child who used to ask him if she was the apple of his eye, and to whom he would respond "right to the core," is beyond measure. "I don't know a 23-year-old daughter," he says. "I know a 13-year-old daughter. There are a lot of things we've missed all these years."

But today, he is focused on one question: Is his daughter a full-time student or not? It's a question Vanessa Gal refuses to answer. When the National Post left her a voice-mail message at her IBM number, her mother returned the call. "You're harassing her at her workplace, and I don't want you to call her anymore," she said.

Gal is not opposed to paying child support. "I don't have a problem meeting my financial obligations toward my children. But there comes a point when you start feeling abused, and that's what I'm feeling right now."

With his two younger children also likely headed for post-secondary education, Gal fears he will be compelled to apply to the courts repeatedly in order to sort out matters that should be straightforward.

"This is madness," says Liberal senator Anne Cools. "Every single act that requires legal expertise is extravagantly expensive. Changing circumstances can necessitate going back again and again, a process that's beyond the financial reach of most people." It is also an enormous drain on court time.

In two separate private-members' bills, Cools and Liberal MP Roger Gallaway (Sarnia-Lambton) have taken aim at the situation in which Gal finds himself.

They say divorced parents should not be forced to pay support for children past the age of majority merely because these children remain in school. "Parents who are still married to one another have no legal obligation to finance post-secondary education," says Cools. "But divorced parents are being compelled by the courts to do so. It is a terrible discrimination on the basis of marital status."

Back in 1997, when amendments to the Divorce Act were passed, the House of Commons submitted a bill to the Senate that said an individual who had reached the age of majority could still qualify for child support due to illness, disability, "pursuit of reasonable education," or "other cause."

The Senate refused to pass the bill until the pursuit of education phrase was removed, but that hasn't stopped judges from routinely deciding higher education is an "other cause."

"The courts are doing it through the back door," says Cools. "Did Parliament ever intend the words 'or other cause' to include university education? The answer is no."

"There is an incomprehensible, illogical element to this law," adds Gallaway. "A 30-year-old can be declared a 'child' for the purposes of a post-secondary support order while a 14-year-old can be an adult for the purposes of criminal law."

One hundred and fifty kilometres north of Gal's home, another municipal employee in a smaller city recounts a similar chain of events. Concerned about protecting the privacy of his minor step-children, "Robert" requested that neither his community nor his name be revealed.

When Robert's first wife left him in 1987, he continued to raise his son and daughter in the matrimonial home. After finishing high school, his son attended community college between 1990 and 1993. Robert contributed half the education costs (tuition and living expenses), so his son wouldn't have to take out student loans.

In 1994, after dating a woman for several years, Robert remarried. Opposed to his second marriage, his 17-year-old daughter left home and moved in with a cousin. Two years later, shortly before beginning university, she moved in with her biological mother -- who then sued Robert for child support to fund their daughter's education.

"I'm not saying my daughter didn't deserve some money," says Robert. "She certainly did. We told her to come talk to us and we'd work something out. I had to phone and phone to get her to meet with me. And then, her words were: 'I don't have to talk to you. My mother and her lawyer say the judge will make you pay.' "

After a 10-minute hearing in January, 1997, Judge Thomas Wood ruled on the spot that Robert should contribute $1,000 a month to his daughter's education -- with no time limit attached. Although federal child support guidelines indicated that a parent who earned Robert's $47,000-a-year income should pay $600 per month in support for one child, the judge provided no justification for selecting an amount significantly higher.

In a heartbeat, Robert's take-home pay was cut in half. He appealed, and eight months later, the decision was upheld by a three-judge appeal court panel. That ruling, too, fails to provide explanations. It merely says: "This court orders that the Appeal is dismissed."

According to Robert, both his initial lawyer and his appeal counsel were so aghast at these decisions they forgave him a total of about $10,000 in legal fees between them.

In the past three years, Robert (whose payments ended only this past January), has paid $38,000 toward his adult daughter's post-secondary education. There was no corresponding court order compelling her biological mother to make any contribution. Nor did the courts inform this young woman that she herself had a responsibility to raise a portion of the funds.

As in Stan Gal's case, Robert's daughter refused to provide him with information about what courses she was taking or what marks she received. "It is not natural to expect someone to pay for a university education for offspring who won't even talk to them," says Cools. "It's simply not done."

Moreover, she says, this is playing both sides of the fence. "A person cannot move from being a child one moment to being an adult the next." Yet the senator can cite case law in which the same judge who says a divorced father should pay for an adult son's education declares, in the next breath, that the father has no right to have input into what school is attended since the son is an adult and entitled to make his own decisions.

In 1998, Robert's second wife made an oral presentation to a federal committee investigating divorce-related matters. She pointed out that while this surely had not been the intent of legislators, the child support she was receiving from her own former husband for her two minor children was, in effect, subsidizing the education of Robert's adult daughter.

"We could not possibly live on his income after that support order was made," she told the National Post. Still in debt, the couple now have no savings, are worried their ability to assist their remaining two children with post-secondary costs will be limited, and are anticipating their retirement years with consternation.

"It really bothers me when I read the 'deadbeat dad' headlines," says Robert's wife. "Because I think: 'You have no idea.' People have no idea. They don't believe it can be this bad. Even my brother-in-law, my sister's husband, said: 'You're not telling me everything, this can't happen in Canada.' And I said, 'It does happen in Canada, and I'm ashamed that it does.' "

But the "deadbeat dad" headlines get attention, even when they fly in the face of the facts. Postal worker Niall Campbell, an NDP candidate in the 1995 Manitoba provincial election, withdrew his candidacy following a Winnipeg Sun story with the banner headline "NDP deadbeat dad wants to be MLA."

In truth, Campbell was not a deadbeat. He was fully paid up on the support he owed his former wife for their younger child. But seven months earlier, the couple's 17-year-old son had left his mother's home in Regina and gone to live with his father in Winnipeg.

Campbell, who was waiting for a court date so the legal paperwork could catch up to his family's new circumstances, was guilty of nothing more than failing to continue sending $350 in monthly child support to his former wife for a child who was no longer residing with her.

But it wasn't just the media, his ex and government officials who insisted Preston should be condemned. Gary Doer, his party leader -- and now the Manitoba premier -- criticized him publicly. "In our system, the court makes a decision and you get the decision changed in court," Doer told the press, pointing out that Preston was also violating the NDP's internal policies.

Hazel McBride, a Toronto psychotherapist, tells a similar story concerning a child with suicidal tendencies whom she counselled for three years during the early 1990s. The child had been kicked out of the house by his mother and was living with his father, who was barely able to make ends meet after his pay was garnisheed for child-support arrears.

"The father was a hard worker," says McBride. "He worked two jobs, starting at six in the morning. He worked construction and he worked right through until 10 at night at another job. With the recession, he'd gotten laid off and that's how he'd dropped behind on his payments."

McBride says she phoned the child support offices on more than one occasion about this case. "I personally talked to the support people about that one. I was furious. And they basically said: 'It doesn't matter where the child is living, the court order is for the mother to have the support.' We had to try to find the child free medication, drug company samples, because the father couldn't afford the medication. And the mother, who was living extremely well because she had remarried and was certainly in no financial difficulty whatsoever, kept the money and would not forward anything."

In Winnipeg in 1998, support enforcement officials continued to garnishee Phillip's (not his real name) workers' compensation benefits and remit money to his former spouse months after his daughter (whose identity is protected by a publication ban) was removed from her mother's home by child protection authorities.

While a simple telephone call from one government office to another should have resolved the matter, Phillip was required to hire a lawyer and wait five months until the support order was terminated by a judge. He has never received a refund.

Ross Bailey, an aircraft maintenance engineer in Abbotsford, B.C., has a similar tale to tell about the unresponsiveness of the child support system to the realities of people's lives.

In late 1998 he wrote a distraught letter to Ujjal Dosanjh who at the time, as the attorney general, was responsible for the B.C. child support collection system.

Bailey explained that his former wife had moved with the couple's two children to New Brunswick five years earlier and that the long-distance phone, travel and accommodation costs he'd incurred trying to maintain contact were crippling.

While his support payments of $800 a month were based on a salary of $36,000 per year, as a result of the stress associated with his family situation, Bailey was laid off from his safety-sensitive job in 1997 and later rehired part-time. Because his gross pay that year was only $22,000, and because he was forced to hire a lawyer in New Brunswick, arrears began accumulating.

"I am still ordered to pay $800 per month, and in order to see my kids this summer I had to take a loan out and leverage my credit cards," his letter reads. "I am spending $1,300 a month more than I am earning ... I am told by [child support officials] that I must pay that child support no matter what my personal circumstances are or they will garnishee my wages when working or all of my UIC payments when laid off. What am I supposed to live on? How am I supposed to see my two children? How would I ever pay arrears of child support when I run out of borrowing power?"

Bailey's plea for help was seconded by John Van Dongen, his MLA (Liberal). Van Dongen told Dosanjh, now the premier of B.C., that he has known Bailey "personally for many years." He is, he wrote, "a sincere, honest and responsible father." The letter says Bailey had been advised by bankruptcy specialists that "a declaration of bankruptcy does not set aside or supersede a [child support order]. In other words, he understands that a family maintenance order overrides anything else including the normal living allowance granted under the law to a bankrupt person."

Van Dongen says Bailey was one of several men in similar circumstances who have contacted his office. "When a non-custodial parent loses their job ... the system takes far too long to respond," he wrote. "In Mr. Bailey's case, the requisite adjustment is taking years due to the manner in which the New Brunswick court and the B.C. court interact."

In his reply to Van Dongen, Dosanjh said court delays were beyond his control. After reiterating that Bailey was still responsible for the full $800 a month and was at risk of having his driver's, pilot's and aviation engineer's licences revoked, he ended his letter with the following: "This government considers child support a serious obligation and we are committed to ensuring that parents receive the assistance they need and that children receive the support they deserve. Thank you for writing."

Bailey has seen his children only twice in the past two years. After three years and thousands of dollars in legal bills, a New Brunswick court recently reduced his support payments to $635 a month.

"I am 48 years old and I have always been able and willing to solve my problems myself," says Bailey. "But I now find myself financially desperate. I just can't afford to pay for lawyers, child support and the thousands a year it costs me to see my kids. I can't survive on air. And there is no one to turn to for help."

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