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July 18, 2000

'Double dipping' child support to be appealed
Landmark ruling opposed: Judge ordered both biological father and stepdad to pay
Jake Rupert
National Post

OTTAWA - A Toronto lawyer is planning to appeal a judge's landmark ruling that ordered a biological father to pay full child support despite the fact the boy's stepfather already does.

Family lawyer Thomas Basteda said he will appeal Justice Donald Taliano's June decision by Thursday, adding that his client, Michael Zaver, has had nothing to do with his 15-year-old son's life at the request of the boy's mother, Debra Wright.

After hearing the case in February, Judge Taliano agreed with Ms. Wright's lawyer, Keith Simpson, that in certain cases, provincial guidelines on child support call for both biological fathers and stepfathers estranged from their children to pay the full amount.

In his ruling, Judge Taliano agreed with Mr. Simpson's argument that Section 5 of the guidelines states a judge can order child-support payments to be split between stepfathers and biological fathers if -- and only if -- the stepfather asks the court to do so.

Justice Taliano agreed that the wording of the section did not allow for the reverse: biological fathers using the section to force stepfathers to shoulder some of the load.

"With respect to the issue of double dipping, I can see no authority in the Act to order anything other than [full support] for the child," the judge wrote.

"If that means the mother is able to provide her son with a standard of living that is slightly better than their basic needs require, so be it."

In the case in question, Ms. Wright and Mr. Zaver had a three-year relationship. They split up shortly after the boy was born, and agreed at the time that Mr. Laver would make a one-time lump-sum child-support payment of $4,000.

In the early 1990s, Ms. Wright married Douglas Wright.

The couple lived in Simcoe, Ont., and Mr. Wright became a father figure to the boy, although he did not adopt him. The couple also have a daughter together.

Just more than a year ago, the couple split up. Without contesting, Mr. Wright agreed to pay $879 per month in child support for the two children, based on his salary.

At the time they were splitting up, Mr. Wright's lawyer suggested that Ms. Wright should also be seeking support from Mr. Zaver, who was living in Toronto.

During the hearing in front of Judge Taliano, Mr. Basteda argued that under Section 5 of the Ontario Family Law Act, Mr. Zaver did not have to pay support because Mr. Wright was paying the full amount.

He also argued that the previous agreement was binding.

The judge ruled against both these claims, and ordered Mr. Zaver to immediately begin paying the full amount under the guidelines.

Based on his $60,000 annual salary and nearly $500,000 in assets, that amounted to $509 per month.

"Although it is unfortunate that the biological father has been foreclosed from the child's life until now, the child should not be made to bear the consequences of a decision made by his parents that was not in his best interest," Judge Taliano wrote.

However, Mr. Zaver can now apply to have contact with his son. Neither party would comment.

Mr. Simpson said he welcomes the appeal and is looking forward to arguing his client's case again.

"The decision is consistent with the intent of the guidelines," he said.

"It's not a lot of money, and my client needs it. Why shouldn't the young man benefit from having two successful fathers?"

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