National Post

Tuesday, December 24, 2002

Child support laws a 'tax' on fathers, lawsuit says

Violates rights

Francine Dubé
National Post

Child support guidelines bear no relationship to the cost of raising children and should be struck down, according to a lawsuit filed against the federal government yesterday by an Alberta law firm.

"Current child support laws and regulations are deliberately or negligently skewed to maximize child support payments. This is in contrast to a genuine calculation and sharing of the costs of raising children," the lawsuit says. "The guidelines have resulted in a massive transfer of wealth; a transfer unrelated to the purpose of child support. Child support payments have become a new tax -- a tax on being a father and divorced."

The suit was filed in Federal Court in Montreal yesterday by Chipeur Advocates. Earlier this month, the firm launched a constitutional challenge of Canada's divorce laws, claiming they are biased in such a way that mothers are 10 times more likely than fathers to be awarded custody.

The new suit argues that the Divorce Act and the Child Support Guidelines infringe on the constitutional rights of men, who in the vast majority of cases become the parent paying child support.

The lawsuit further alleges that the legislation discriminates against divorced parents by dictating to them how much money they should spend on their children.

The lawsuit points out that federal child support guidelines are based on parental income and not the needs of the child; do not properly assess the income, expenses, assets and liabilities of both parents to determine their relative ability to pay; do not require that budgets outlining the costs of children be supported by evidence; and do not include a ceiling on child support.

"This ignores the reality that there is a limit on the amount of money that can be reasonably expended on raising children," the lawsuit says.

Roger Gallaway, Liberal MP for Sarnia-Lambton and chairman of a House-Senate committee that studied custody and access in 1998, agrees the guidelines need to be changed. They have impoverished a class of men in Canada -- divorced dads, he said.

"The degree of suffering that is going on in this country, of non-custodial parents, is a disgrace."

The guidelines have also led to "absurd" judgments that force parents to finance post-secondary education for children who are well into their 20s, while married parents are free to choose whether or not to finance such studies, Mr. Gallaway said. "The guidelines are crap."

The firm has launched the suit on behalf of two people: a divorced father, and a woman who is married to a divorced father whose child support payments affect the quality of his new family's life.

"There is absolutely no accountability under the Divorce Act. There must be accountability," said Gerald Chipeur, the lawyer who filed the suit.

The lawsuit argues that while the law requires parents only to provide the essentials to their children, courts further order divorced parents to pay what most would regard as discretionary costs -- such as post-secondary education -- thereby dictating to divorced parents how to raise their children.

Even where payments are fair, paying parents have no input into how the payments will be spent.

"Eliminating the paying parent's decision-making role can devalue that parent in the eyes of the children.... The guidelines cause an involuntary transfer of familial authority from the paying parent to the state [and through the state to the recipient parent]."

The guidelines require judges to award support based on a fixed percentage of the paying parent's income, not on the children's needs. In cases involving non-custodial parents with incomes of more than $150,000, the law permits courts to deviate from the formula only if the high-income parent proves the award is inappropriate.

fdube@nationalpost.com

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