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Wednesday, April 16, 2008

Grant Brown: "An unconstitutional entitlement"

The laws mandating how much separated parents must pay to support their children are intrusive and much more arduous than what is required for parents in intact relationships. The responsibility to pay falls almost exclusively on fathers. In Edmonton, 97% of registered payors of child support are men, a typical figure nationwide. In "An unconstitutional entitlement,"  Grant Brown wonders how this child support system squares with the Section 15 Charter guarantee that every individual has the right to equal protection and benefit of the law without discrimination based on sex An excerpt:

"Parents in an intact relationship have a legal duty to provide only the necessities of life to their children – and not a stitch more. Child welfare authorities will not intervene absent evidence of abuse or fairly serious neglect of children whose parents cohabit. But as soon as parents separate, the child support regime takes over without even the slightest evidence that the children are not receiving the necessities of life. Immediately upon separation, a father’s obligation to provide for his children goes from providing (half of) the necessities of life to providing what the mathematically average child of a Canadian family with his income might get by way of material benefits."

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Posted by westernstandard on April 16, 2008 in Canadian Politics | Permalink

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Comments

First, the good news:

(1) "Immediately upon separation, a father’s obligation to provide for his children goes from providing (half of) the necessities of life to providing what the mathematically average child of a Canadian family with his income might get by way of material benefits." This is a good point. While I am sure you would agree that any decent father would WANT to provide his children with more than the minimal necessities and would do so if he could, if the legal requirement for parents in intact families is to met by only providing the minimum then in separated families the law should impose the same burden and no more.

Now the bad news:

(2) You worry that "child support too often drives out affection and respect as the currency for post-separation family relations.... Mothers are able to buy the affection of their children with their father’s money, while teaching them that their dad is a 'deadbeat' because he says he can’t afford to give more, or can’t afford to lavish presents on the children when they are with him." But given what you argue (and I agree with) noted above, fathers who are required to pay LESS will only be more open to the potential for maternal affection manipulation. In other words, the worry of how mothers can use money issues to drive a wedge between the father and children is not lessened by a more fair child support system, thus this problem, to the extent that it is one, is not an argument against the current system. If anything, it is an argument FOR it.

(3) You note that "97% of registered payors of child support are men, which is typical". But the crucial question here is: how many of those cases are ones where the man has a higher salary than the woman? If the answer is "all of them" or something very close to that then the fact that men are so often the payer of support is no evidence that it is not being done in a fair manner. One would expect that under any fair system of child support (whatever it might look like) that when support is being paid the parent with the greater income would be the one paying it. So if that is what is happening - despite the 97% figure you give - then there is no bias here.

(4) You hint at the idea that child support might actually be "disguised spousal support", but give no reason to think that this is the case. If the money that fathers are required to pay is, as you say, "the mathematically average child of a Canadian family with his income might get by way of material benefits" then I don't see a reason to think that it is a disguised anything. Talk of "disguised spousal support" seems, then, to be just a rhetorical device.

Posted by: Fact Check | 2008-04-16 4:46:02 PM


One could look at this issue from many different vantage points. Fact Check makes an excellent argument.

However, one ought to look at the impact on low income earners as well. If one sits in courts in Ontario and observe the family law cases clogging up the judicial system, one sees cases where truck drivers have lost their drivers licences for failure to pay support (or the flawed Harris government computers [including Flaherty, Baird, Clement now mucking up Ottawa] did not properly record the received payments, leading to false summary convictions for failure to pay with summary loss of drivers licence) and thus lost their means of earning a living, leading to a complete loss of ability to pay support. Men on EI are being asked to pay support which they don't have. Ditto for men on welfare. Sure they can go to court to have orders varied, but these men have other priorities, like surving potential homelessness, dealing with job loss, debt collectors, foreclosure and the like.

Guess who ends up paying for these kids? Yeah, I am sure the compassionate CONservatives spare a thought for those mothers and children surviving on the "generosity" of Harris's welfare in Ontario!

As for fathers paying the bills while the mothers badmouth them to the kids, there is a need for both parents to have access to the children, even if it has to be supervised contact in prison cells, supervised by cops. But how many CONservatives would support that?

Looking at a tiny spec of a complex problem makes solutions seem easy and facile. If only it were that simple!.... oh, LOL!

Posted by: ROGER | 2008-04-16 5:07:56 PM


The abuse of fathers in the divorce industry is beyond doubt. It is a travesty, but "no fault" divorce and feminist courts have gone a long way to neuter the fathers who are unfortunate enough to get caught in the web.

Posted by: Markalta | 2008-04-16 6:57:48 PM


Feminist courts? Can't say I have seen any feminist judges yet. Must be an Alberta phenom. LOL!

Posted by: ROGER | 2008-04-16 7:26:03 PM


Add to all of this the circumstances of the split in the first place. Several cases that I know of involved women who were not abused and at least on the surface had no reason to end their marriages. Yet they did end them and succeeded in making their ex-husbands live a life of profound misery.

I have also, in my years of dealing with teens seen children use their positions in the middle of a divorce to manipulate the heck out of both parents.

This doesn't even begin to discuss the hell that grandparents of divorce go through.

The Alberta courses on "Children of Divorce" and the divorce arbitration panels are a far better alternative. If only more people would use them.

Posted by: DML | 2008-04-16 8:11:44 PM


Fact Check,

Thanks for giving me some credit, at least, this time. But let me try to convince you that my arguments are stronger than you give them credit for.

(1) Every individual has his or her own preference for work versus leisure. Every individual has his or her own preference for current versus future consumption (saving for early retirement, etc.). Every individual has his or her own preference for high-cost versus low-cost activities. Every individual is more or less competent at managing money. Etc. For separated fathers, all of his preferences in these and other respects are ignored and over-ridden by law. To a large extent -- to an extent that would never be tolerated by or imposed upon intact families -- the legal system decides how much he is expected to earn and for how long; what proportion of his income is devoted to current consumption; and what activities that consumption is spent on; etc. A separated father who tries to exercise any influence over these central decisions in his life is automatically accused of being "controling" or engaging in "financial abuse" or "shortchanging his kids." That's the kind of totalitarian mean-spiritedness that entitlements typically lead to.

(2) Your first critique makes no sense. The point about entitlements is that the recipient has to do nothing to earn them; they get them whether they show affection or respect for the father or not. Except in the best (i.e. least conflictual) of cases, normal parental discipline and responsibility training becomes impossible for separated fathers, who have to give over their income to the mother / child regardless of how badly they behave in general (not doing homework, smoking, hanging out with the wrong crowd) or toward the father in particular (refusing to do anything the father wants to do on access periods, skipping access periods unless dad spends even more money on them, etc.). There's no give-and-take in the father-mother or father-child relationships anymore; the mother and child learn that the father is only there to give, and give some more. When you take almost all of a father's leverage over his child out of his control (his income, and even the amount of time he gets to spend with the child), you can't expect him to be much of a father in the truest sense. That's partly why children of broken homes suffer from worse outcomes on a broad range of sociological indicators.

When the mother / child is in a constant battle with the father over getting more money out of him for as long as possible, it destroys any prospect for the development of a proper sense of gratitude, affection, respect. This point is one particular application of the conservative and liberatarian view about the corrosive effects of entitlements generally. (I object to the child support regime mainly on these moral grounds.)

(3) You are mistaken in inferring that I adduced the fact that 97% of child support payors are fathers as evidence that there is bias in the *application* of the child-support laws. (But this fact, when combined with other easily ascertainable facts about family incomes -- such as that in 25% of households the woman earns more than the man in Canada today -- does tend to support the conclusion that there is systemic bias in the application of the law, too.)

No, my point was that the legal system discriminates against separated parents relative to parents in intact relationships; and more specifically, it discriminates against separated fathers who are the ones disproportionately affected (97%). I don't NEED to make the latter point to challenge the Federal Child Support Guidelines as a violation of s. 15 of the Charter; but SCC jurisprudence indicates that a challenge is stronger if the discrimination can be shown to have a "disproportionate impact" on members of an "enumerated ground" in s. 15 (in this case, sex). So the 97% figure is more than adequate all by itself to establish the legal point I was actually arguing.

(4) Actually, it's no secret that a significant proportion of child support is really disguised spousal support. About half of it is meant to cover the "fixed costs" of raising children, things like homes and cars. So when dad pays for Junior's accommodations and transportation, he is inevitably paying to up-grade mom's accommodations and vehicles, too. I believe SCC Justice Bastarache even admits that a significant part of most child support awards amounts to "disguised spousal support" (in the Contini decision?). It's certainly not an original idea with me.

If I may conclude with a general comment: I find it curious that Fact Check almost NEVER makes a post that actually corrects a FACT in someone's argument, or documents a FACT that refutes the argument. Almost always, his posts challenge the sufficiency of the premises of the argument, or a logical inference. This leads me to suspect that FC is merely a philosopher who knows little of substance on the subjects he comments on, but thinks his logic is superior to everyone else's. (A more accurate moniker would be "Logic Chopper.")

Consequently, there are two recurring problems in his posts: either (i) he doesn't grasp the author's actual argument or conclusion to begin with, and so his critiques fall on straw men; or else (ii) he doesn't realize how commonplace the facts are that plug the "insufficiencies" in the premises of the arguments he attacks, so his critiques have the character of "hobgobblins of small minds" to anyone with a modicum of empirical knowledge on the subject in question.

Posted by: Grant Brown | 2008-04-17 1:38:39 AM


"(1) Every individual has his or her own preference for work versus leisure. Every individual has his or her own preference for current versus future consumption (saving for early retirement, etc.). Every individual has his or her own preference for high-cost versus low-cost activities. Every individual is more or less competent at managing money. Etc. For separated fathers, all of his preferences in these and other respects are ignored and over-ridden by law"


Would it not also be the case that the primary custodial parent's spending preferences are largely determined by the needs of the child(ren)? I am sure many mothers with primary (residential) custody would prefer to follow their inclinations around work vs leisure, savings, high vs low cost activities, etc, as well. However their preferences are over-ridden by the needs of their children - not something enshrined in law but in fact a much more pressing and incontrovertible reality. After all, if a child needs a new pair of shoes, going to court to fight it really isn't going to make any difference, unlike the endless battles around child support.


Or are are you in reality trying to say that all mothers are greedy spendthrifts stealing their ex-husbands' money, without a thought to the needs of their children? It seems to me that you are getting dangerously close to claiming fathers should have no responsiblity towards their children, financial or otherwise, and that the rights of the child should be superseded by the right of the non-custodial parent/father to do essentially whatever he wants.

Posted by: M.W. | 2008-04-17 7:29:39 AM


==Modest proposal on abortion divorce and custody of children.==


Whereas,
Canadian radical feminists write:
"As opposed to "formal" equality, "substantive" equality recognizes the effect on women of their own biology and accumulated social disadvantage, acknowledging that laws and policies can affect them differently than they do men -- and then correcting that imbalance."
see: http://www.canada.com/components/print.aspx?id=42b64359-4031-4398-a1a5-f93006e6a4fe


Therefore,
We (Canadian men) should take them at their word and demand "substantive" equality for men on issues of human reproduction.


Considering current catastrophic birth rate in Canada, standing at unsustainable 1.5 child per woman of childbearing age, federal legislation restricting abortions is inevitable anyway.


So while we are at it we might as well try to solve all other issues that are discouraging Canadians from having children.


Due to biology of human species only women are capable bearing children. Under current lack of applicable laws, women


- are free to decide to have an abortion or carry pregnancy to term,


- and they can and do use pregnancy as a leverage and ultimate weapon in their quest of total domination of Canadian men.


The current situation

- is skewing workings of Canadian economy thru
unjustifiable transfer of wealth (division of property, spousal support, child support, legal cost of divorce litigation),


- and discourages men from getting married and investing their time end efforts in setting up family and raising children.


Then, in order to level playing field, men should demand that they automatically be granted sole custody of all children that were sired by them (based on DNA paternity testing).


Such demand by Canadian men should ease radical feminists' apprehensions about introduction of restrictions on abortions in Canada.


Unwanted pregnancy and childbirth would no longer be whole life altering event, but an inconvenience soon to be concealed and forgotten by all people involved.


In this way women would be relived from having to bear "full responsibility" for their poor choices of sexual partners, and be free to seek better partners in the future.


It seems to me that nine months of pregnancy and childbirth is not that harsh punishment for a night of fun, at least not as harsh as 20 plus years of having to pay child support for a kid they never see as is the norm today for Canadian men.


Since under current practice women rarely if ever are forced to pay any child support, when on rare occasion men are awarded sole custody of their children, the whole issue of child support could be easily scrapped eliminating government involvement, and costs of government bureaucracy.


Men would become much more responsible for their sexual behaviour, as they would be running risk of a cute little baby dropped at their doorsteps nine months after a night of fun.


Old hags who had their asses scraped so many times that they are no longer able to get pregnant would have many cute babies with uncertain parentage to choose from and adopt, without spending a fortune on buying children stolen for them by CAS from poor single mothers that are trying to find for themselves reason for their own existence.


All nonsense of deadbeat dads would disappear overnight: we would be able to scrap Family Responsibility Office and Family Courts.


Birthrate would raise dramatically easing demand on increase of immigration as only means to sustain Canadian economy.


Canadian Children’s Aid Societies would revert from baby snatchers feeding adoption racket, back to protectors of abused and vulnerable children.


Divorce rates would plummet as women who truly love their kids would sacrifice their "freedom" and a "right" to find new and better partner for company of their own kids.


In case of divorce children would automatically stay with fathers forcing them to find another woman to take care of children abandoned by their biological mother.


That in turn would lead men to have second crop of children with their new partners. Such arrangement would motivate to work and provide for their families.


Women would have to resort to charm instead of blackmail in order to stay in relationships.


Gender wars would come to imitate end.


Medical costs associated with performing abortions, infertility treatments and mental health treatments would also drop dramatically.


What is there that radical feminists would not like about such proposal ???

Posted by: Modest proposal on abortion divorce and custody of children | 2008-04-17 9:38:21 AM


M.W, overstates, and gets huffily into gender to justify himself He doesn't even consider the real facts.

My own experience leads me to the conclusion that Family Court is an instrument of sexist economic exploitation, pure and simple. It sees no other role for fathers than their economic one.

The first step in the process is to determine the 'quantum' (the amount) of support necessary to support the child as if his/her life hadn't changed materially at all by his/her parents being divorced. It is an exhaustive list, constructed so nobody would forget anything, down to toothpaste. The quantum includes things that will be used at older stages of life, for example.

The biggest item in the 'quantum' is usually shelter. Let's assume a case, just to illustrate how they put their thumb on the scales. Real life may vary tremendously from this example, you understand. But it illustrates the bias.

Let's assume the breakup involves selling a house, and distributing the equity. Where will the new family live? An apartment. Let's say there's a boy and a girl, as in my case. They would require a three bedroom apartment. The rent -- just to illustrate -- $1200.

In normal 'cost accounting' the children's share would be the cost of the extra two bedrooms. This is used all through commercial law. So, if the 3 bedroom is $1200, and the 1 bedroom is $900? By that calculation, $300 is added to the 'quantum'.

But the sly dogs down at Family Court do it by dividing the rent in three, so that two-thirds of all shelter costs are "children's expenses". In this case, $800 goes into calculating the quantum! For $400, your ex would have room in a rooming house!

This means that the quantum is 'fattened' by $600. In this case, but the skillful women who catches the drift can do better.

Now, what happens with the quantum?

The quantum is supposedly split in the ratio of the difference in the married parent's earning power. In the normal case, family income is produced in a 2:1 ratio, dad to mom. (The statistically normal family makes about $60,000, and the wife confibutes about $20,000 of that.) So the extra $600 a month means $400 extra for Dad.

It illustrates the principle.-- because two thirds of the quantum is what becomes the settlement, barring other considerations. In fact, it is imposing fatherhood on a man by taking all room for discretion away from the father.

What the court also overlooks is that women have a very deeply held conviction that father should bear ALL the financial costs of children. In real life, the newly liberated mother 'forgets' that she's supposed to add $600 to the kids support a month. She 'charges' her presence as 'labour' in a moral calculation that I don't care to poke with a stick, let alone examine.

So it means father's contribution becomes the whole quantum the kids are brought up on. The idea that the mother is supposed to contribute is lost. She forgets, convinced that her mere presence is her contribution. The money mixes, and passes into one account. Dad is always to blame for any shortage. "If you want ot play hockey, call your father!"

And meanwhile, their father, earning $40,000, is netting out -- after having child support deducted like a tax -- less than $2000 a month. That means a $600 a month rent, and giving up the car if he's to respond when the phone rings.

The result? Our kids are being raised by women who, in enough cases are cycling men through their lives, and fathers who can't respond to their needs.

Meanwhile, she makes $20,000, sheltered from taxation by the children's prenence, and gets another $12,000 or so from the ex. She's got $32,000 and he's got $18,000. He can't be a father -- truth be known.

Which is, after all, the point of family court. They use fraud to fatten up settlements, knowingly. Many of their practiioners are proud feminists, liberating women. At least, in their own minds.

The gap between the practice of the courts, and the logic of the legislation is huge. They say they're protecting their kids, but they don't understand the first thing about what fathers really do, in real families ... they reduce fatherhood to a monthly cash payment. And 'protecting the kids' is code langauge for getting the money to the newly liberated woman. They don';t give a shit about the kids.

Posted by: Bugs | 2008-04-17 9:40:40 AM


My modest proposal is much more progressive than what feminist movement sprang from:


http://en.wikipedia.org/wiki/Coverture


Coverture
From Wikipedia, the free encyclopedia


Coverture is the legal concept that a woman's legal rights were merged with those of her husband, part of the common law of England and the United States throughout most of the 1800s. The idea was described in William Blackstone's Commentaries on the Laws of England in the late 1700s.


Under traditional English common law an adult unmarried woman was a considered to have the legal status of feme sole, while a married woman had the status of feme covert. These are English spellings of medieval Anglo-Norman phrases (the modern standard French spellings would be femme seule "single woman" and femme couverte, literally "covered woman"). A feme sole had the right to own property and make contracts in her own name. A feme covert was not recognized as having legal rights and obligations distinct from those of her husband in most respects. Instead, through marriage a woman's existence was incorporated into that of her husband, so that she had very few recognized individual rights of her own. As it has been pithily expressed, husband and wife were one person as far as the law was concerned, and that person was the husband. A married woman could not own property, sign legal documents or enter into a contract, obtain an education against her husband's wishes, or keep a salary for herself. If a wife was permitted to work, under the laws of coverture she was required to relinquish her wages to her husband. In certain cases, a woman did not have individual legal liability for her misdeeds, since it was legally assumed that she was acting under the orders of her husband, and generally a husband and wife were not allowed to testify either for or against each other. Judges and lawyers referred to the overall principle as "coverture". The United States Supreme Court upheld the idea of coverture in the case of Bradwell v. Illinois, 1873. Even before that time, though, many states had begun reforming marriage laws to eliminate or reduce the effects of coverture.


The system of feme sole and feme covert existed through much of early history in parts of Europe and the European colonies. This situation persisted until the mid-to-late nineteenth century, when married women's property acts started to be passed in many English-speaking legal jurisdictions, setting the stage for further reforms.


Early feminist historian Mary Beard held the view that much of the severity of the doctrine of coverture was actually due to Blackstone and other late systematizers, rather than due to a genuine old common-law tradition.


Cultural references


The phrase "The law is an ass" originates in Charles Dickens' Oliver Twist, when the character Mr. Bumble is informed that "the law supposes that your wife acts under your direction". Mr. Bumble replies "If the law supposes that, the law is a ass — a idiot".


The Blackstone Text


By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage.

Posted by: Modest proposal on abortion divorce and custody of children | 2008-04-17 9:42:12 AM


M.W.:

I'm not "getting dangerously close" to making any such claim as you impute. (Why is it that in the blogosphere, everyone automatically jumps to the least charitable inference possible?)

In my view of what equality entails, the legal presumption at the time of separation should be that dad has the children as close to half the time as practical, and mom has the kids as close to half the time as practical, and both parents work and support themselves and the children financially when the children are with them. Then *both* parents can decide for themselves how to accommodate their preferences for work/leisure, present/future consumption, (etc.) -- within the constraints they have voluntarily assumed by having children.

If the parents find it convenient to negotiate a variation away from this presumption of equal care and equal financial contribution, then so be it -- that will often be appropriate. It just won't involve the kind of legal extortion of dads so common in family courts now.

Posted by: Grant Brown | 2008-04-17 10:45:24 AM


Grant Brown,
weakest part of your vague proposal of equal parenting based on equality principle it that it leaves too many details to be worked out by lawyers and judges.


We need a solution that eliminates litigation and cuts lawyers and judges out of lives of people.


Enforcement of visitation rights is currently unenforceable nightmare so how do you propose enforcement of equal parenting arrangements?


Are we going to have special “equal parenting police” operating moving trucks and driving down the neighbourhood every two weeks to pick up kids?


Are we going to have to provide two sets of accommodations for every child of a divorce?


Are we going to have review by family court every three months to “find out” how these “equal parenting” arrangements works out?


Are we going to create more work for lawyers filling out useless paperwork, more opportunity for radical feminists on the bench to indoctrinate parents and children alike?


Equal parenting is just another pipe dream and unworkable scam devised by lawyers and judges eager to strip families of their assets.


What is elaborated above by "Modest proposal on abortion divorce and custody of children” seems much simpler and more workable option.


Posted by: Maria | 2008-04-17 11:40:35 AM


Please, Maria (or is ot Karol in disguise?), I can't solve every aspect of separation in the course of one column! I realize that it's all interconnected, and that we need systemic changes. Have patience.

Posted by: Grant Brown | 2008-04-17 2:00:04 PM


Yup, maintaining two households is expensive, and divorce sucks when there are kids involved. So choose your spouses wisely, people.

This post (and some of the comments) hints not very subtly at the bitterness many men feel at paying dearly (and to the detriment of their own standard of living) to support a household in which he is no longer acknowledged as the head, and the female is not obliged to perform certain duties.

That bitterness may be understandable, but it's not a constitutional question.

P.S. I agree that it is wrong to take away drivers' licences for non-driving matters.

Posted by: Joan Tintor | 2008-04-17 8:17:42 PM


Grant,
I admire how you managed to get through this whole discussion of custody and child support without once using the phrase "best interests of the child" or, indeed, giving any indication of having turned you mind to it.
It explains so much.

On the other hand, congratulations for recognizing Karol in drag. You're catching on.

Posted by: truewest | 2008-04-17 11:45:45 PM


Joan Timor hints not very subtly that it is right and just for the mother to be the automatic "head of household" after separation, and for the father to continue to pay for her lifestyle even while she ceases to contribute anything to his. No, bitterness isn't a constitutional issue; but equality is.

truewest seems to find universal mystical significance in the mantra "best interests of the child." But I remind him that this discussion was about *child support*, and child support is an entitlement that has nothing to do in law with applying the "best interests of the child" test. Even if it did, the same constitutional problem would arise, namely, "Why is it appropriate to compel parents who are separated to spend their income strictly in the best interests of their children, when the law only requires parents in intact relationships to provide the necessities of life?" You are a totalitarian if you truly believe that parents -- any parents -- should spend their income only in the best interests of the child; and you are a fascist if you think Courts should be enforcing this standard.

I believe I did make a brief comment about custody, where the "best interest of the child" test traditionally applies, somewhere in response to something someone said. But surely truewest can't believe that my passing remark was intended to cover the field? He can't be that foolish, or that eager to pick a fight, can he? Honestly, how many times do I need to say that I can only pick at one thread at a time?....

In my brief remarks on custody I believe I did say that oodles of sociological studies prove the value of keeping fathers highly involved in their children's lives -- that fatherless children score poorly on every sociological indicator... It is evidently a stretch for truewest to comprehend how this fact might figure into an argument for a presumption of shared parenting based on the "best interests of the child." That explains so much.

Posted by: Grant Brown | 2008-04-18 2:34:36 AM


Grant,
I understand that the best interests of the child test applies to custody, not support. But I thought it telling that children were present in your piece only as the subject of fatherly discipline. And that you did not seem alive to the well-established principle that while the custodial parent claims child support, the right to receive child support belongs to the child. Indeed, children over 19 can bring their own actions to recover arrears.
Now, to the problem with your constitutional challenge. First, differential treatment doesn't necessarily amount to discrimination under s.15. The application of the Guidelines arguably doesn't treat separated parents in a way that demeans or devalues them; it merely recognizes that the consensus that presumably exists in an intact family no long exists and that, since battles over child support are frequently long, expensive and bitter, it is the best interest of the child, probably of the parents (and of society in general) that some certainty and predictability be brought to the situation.
If you don't lose there, you lose on s.1. Given the well-documented problems with setting and enforcing child support pre-Guidelines, there isn't a court in the land that would find that the Guidelines are not a justifiable infringement.
So, tell me, are you one of those guys who got a PhD and then a law degree? Or was it the other way around?

Posted by: truewest | 2008-04-18 7:57:22 AM


"Determining a parent’s entitlement to child support is an extremely intrusive process."


As truewest points out, it is the child and not the parent, who is entitled to child support. Don't fall into the all-too-common trap of confusing bitterness towards the ex-spouse with the parent's relationship to the child.


"First, how much money would be transferred anyway, in the absence of a child-support regime?"
Well, as you note the many and large mechanisms devoted to child support collection, I would guess not much. If the funds were voluntarily forthcoming, the need for these collection mechanisms would not be present, and they would disappear. If you have ever sat through court-mandated parenting courses it would become clear to you that most child support payors are more concerned with how to reduce or eliminate payments, than with any other aspect of post-divorce parenting - by far.


"Second, to what extent do recipients of child support reduce their work commitments because child support payments allow them to do so?"

Does it matter? Is there a rule I am not aware of that states child support recipients must maintain a certain amount of work hours in order to be deserving of the money? If anything, I would think that increasing the time available to care for the children would cut down on daycare fees - to which the non-custodial parent is also supposed to contribute.


"Third, how much of the child support received is actually spent on the children, as opposed to being disguised spousal support?"

This seems to be another base assumption that custodial parents really don't care about their children except as a source of revenue.


"Mothers are able to buy the affection of their children with their father’s money, while teaching them that their dad is a “deadbeat” because he says he can’t afford to give more, or can’t afford to lavish presents on the children when they are with him."


I would submit that the opposite experience is just as common - whereby the non-custodial parent lavishes presents on the child that custodial parent cannot afford, in an effort to prove their love and buy the child's affection.


"Mothers get to choose all of the activities the children participate in, while handing fathers the bill for it."
In cases of joint custody (the majority of post-divorce arrangements), both parents have an equal say in the child's activities. This may not always work out in practice, but I would suggest that if many non-custodial parents put a fraction of the effort into exercising this right, that they do into avoiding child support, everyone might be better off.


"I have encountered adult children who lie bald-faced to the courts and maintenance enforcement agency about going to school, not living common-law, and not having a job, just in order to keep child support flowing to their mothers for as long as possible."
This statement is scarcely credible, and in fact is grossly insulting to all involved. You are really suggesting that children and mothers have some sort of conspiracy going to extort money from their father? That a child would have no independent thought or feelings towards their father other than as a blank cheque?


"Most fathers at least want to be appreciated as the provider, and to be able to impose reasonable conditions on the continued receipt of their provisions."

Please define "reasonable conditions." Or does it mean "you will do what I say?"


Child support payments are, sadly, the most enforceable part of any custody arrangement. It would be better to effectively enforce visitation - and that encompasses custodial parents who try to with-hold it, non-custodial parents who decide to simply walk away from their children, and those who appear in their lives only sporadically. However short of having police provide a pick-up and drop-off service for everyone, this is simply not possible. And it would mean that those who feel hard done-by would have one less excuse as to how they are "victims."

Posted by: M.W. | 2008-04-18 10:05:07 AM


truewest continues to nitpick without thinking through his arguments. What difference does it make if we start with the legal fiction that child support is "the right of the child"? (And make no mistake, it IS a legal fiction. If child support were truly the "right of the child," the child would be able to sue the mother for mis-spending it -- just as the child is able to sue the father for arrears after the child turns 19.)

The point is that children of intact families have no equivalent right. Let me put it this way: every right has a correlative duty, and it is the inequality of the duties imposed on separated fathers relative to other parents that produces the Charter challenge to the regime. Got it?

truewest is on safer ground asserting that the Charter challenge I outline in my column would not succeed in Court. This is the depressing prospect I always advise fathers of who read my argument and are gung-ho to proceed. I tell them that if the SCC can discern in the Federal Child Support Guidelines an objective of equalizing incomes between separated parents (per Bastarache J. in Contini [2005]), they can literally make up *anything* that suits their political goals. The SCC is merely the final arbiter of the law; they demonstrate time and again that they are very weak reasoners and even weaker in comprehending human psychological and social realities. They are merely lawyers; they have no expertise to make the socio-political decisions they arrogate unto themselves.

So when truewest says, "The application of the Guidelines arguably doesn't treat separated parents in a way that demeans or devalues them," he is spouting exactly the kind of nonsense that I would fully expect our Courts to endorse in their zeal to preserve this cherished child-support law.

But what could be more "demeaning" and "devaluing" than to reduce a loving father to the status of an automatic teller machine? OF COURSE this whole child support regime is demeaning and devaluing -- it PRESUMES without any evidence that fathers are deadbeats who need to be compelled to support their children, and in the manner to which the all-knowing legislators and (better-than-fathers) judges feel they are entitled. That's why I pointed out that parents in intact families wouldn't tolerate this level of demeaning intrusion into their child-raising decisions for a second. If you, dear reader, would invite a judge to look over your shoulders and second-guess every spending decision you make on behalf of your children, on the basis of a 5-minute submission in Court, then you are a pathetic excuse for a parent.

It might be safe to say that "the consensus that presumably exists in an intact family no long exists" once the parents separate. But that is nothing to the point. I'd hazard to guess that in roughly half of the intact families in Canada, the "consensus" among the parents is to spend LESS THAN THE AVERAGE of what parents of their income bracket spend on their children. (Imagine that! The horror, the horror!) And the children of these chintzy parents -- roughly half the children in Canada -- have no legal recourse to force their parents to pony up and give them what the divorced Jones's kids next door have. THAT'S where the unconstitutional inequality arises, sir. And it is logically quite inescapable -- absent the kind of speacial pleading I decried in my previous column.

truewest says, "since battles over child support are frequently long, expensive and bitter, it is the best interest of the child, probably of the parents (and of society in general) that some certainty and predictability be brought to the situation." This isn't an argument, unless you call "begging the question" an argument. The reason there are "long, expensive and bitter" battles over child support in the first place is that our adversarial legal system includes unconstitutionally intrusive laws that GENERATE long, expensive and bitter battles over this generous entitlement. The remedy is to scrap these laws and give separated fathers the same freedom over their finances as parents in intact relationships have. Maybe if separated parents had to get along to the minimal extent necessary to keep each other motivated to continue supporting the children in grand style, the incentives to engage in long, expensive and bitter battles would be muted -- in the best interests of the children.

The reason we have "long, expensive and bitter" battles over child support is precisely because the spoils of these battles are so large. If judges accepted the inequality that separated fathers obviously face with respect to control over their incomes, they might actually consider "reading down" the Federal Child Support Guidelines in conformity with the requirement of the Oakes test that the law "minimally impairs" the separated father's equality rights. Instead of exercising the kind of judicial restraint a respect for equality entails, most judges act as though they have never met a "section 7" spending proposal by the mother on behalf of the child that they didn't like. They read the child support guidelines very expansively, instead of srtiking it down or even reading it down.

truewest says that "children were present in [my] piece only as the subject of fatherly discipline." That is simply not true. If your reading comprehension doesn't improve, I'll have to rethink bothering to read and respond to your silliness.

Posted by: Grant Brown | 2008-04-18 11:11:26 AM


M.W.'s post trades on all of the worst myths and stereotypes of deadbeat dadism that the adversarial legal system depends upon to justify its existence.

For what it's worth, in my experience separated mothers are AT LEAST as bitter toward their ex-partners as separated fathers are toward theirs. And when it comes to active vindictiveness, I have seen much more really horrible things done by mothers than by fathers. Indeed, one of the tools the legal system hands to bitter separated mothers to beat their ex-partners over the head with is the child support regime. If M.W. isn't aware of this, she is fooling herself. I have had father-clients who agree to pay child support the mother isn't entitled to, or not collect child support they are entitled to, just so as to maximize their contact time with the children. What do you think about mothers who trade child support for contact time, M.W.?

M.W. invites us to infer that just because an institution exists for extracting money out of fathers, it must be necessary or serving a useful function. By that logic, we needed residential schools to civilize the savages, too. But maybe leaving aboriginals to fend for themselves in their "primitive squalor" would have been better, you think?

One of the suppressed premises of my position is that money just isn't that important to the raising of children as our legal system seems to suppose. I say that as a middle child of seven in a one-income, working-class family. I don't think I lived in a home with an income above the StatsCan LICO until I got my first full-time university job at age 32. All of my brothers and sisters are well-adjusted, productive members of society, with well-adjusted children.

I would go so far as to say that money is about the least important ingredient to good parenting; yet our perverted legal system elevates it into the most important ingredient -- at least when it favours mothers to do so. If money were so important to the raising of children, then separated fathers who have higher incomes and can afford to live in bigger homes, drive more expensive cars, hire state-of-the-art child care, etc. would be getting primary residential care of the children much more often than they actually do. The reality is that money is only important for the child's well-being in our legal system insofar as it can be transferred from father to mother.

A large part of my plea to the legal system is to take the bloody focus off the money long enough to see what is really important in parenting children. Children flourish when they have both parents actively and heavily involved in their up-bringing -- so let's focus on achieving that for a change, shall we?

M.W. doesn't think it matters that mothers reduce their commitment to work as a result of receiving child support. I suspect she would be the first to complain if a father wanted to take early retirement while the kids were still trying to go through university. But why should mothers stay at home eating bon-bons and watching soaps after the children are in school, if money is so important to their well-being? It seems we have some deep-seated double-standards creeping into M.W.'s thinking....

There is an air of unreality to M.W.'s claim that "In cases of joint custody (the majority of post-divorce arrangements), both parents have an equal say in the child's activities. This may not always work out in practice, but I would suggest that if many non-custodial parents put a fraction of the effort into exercising this right, that they do into avoiding child support, everyone might be better off." No judge is going to order a mother with primary residential care to take the children to activities the father wants them to participate in during the week, if she doesn't want to and puts up a fuss -- even if dad technically has "joint custody."

I said, "I have encountered adult children who lie bald-faced to the courts and maintenance enforcement agency about going to school, not living common-law, and not having a job, just in order to keep child support flowing to their mothers for as long as possible." To which M.W. asserts, "This statement is scarcely credible, and in fact is grossly insulting to all involved." So in M.W.'s world, it is a commonplace that bitter fathers spend all their efforts trying to avoid paying child support; but it is "incredible" and "insulting to all involved" to refer to a case where alienated children lie under oath in favour of their mother's child support applications? It must be nice to live in a black-an-white world where villains and angels are so easily identifiable, without the need to read Affidavits where children retract their earlier lies when they get caught out....

Posted by: Grant Brown | 2008-04-18 12:13:19 PM


"Maybe if separated parents had to get along to the minimal extent necessary to keep each other motivated to continue supporting the children in grand style, the incentives to engage in long, expensive and bitter battles would be muted -- in the best interests of the children. "


Whatever would those family law practitioners who launch pointless motion after motion, end up in case management, and drain everyone's funds, do then? Pray, tell us.

Posted by: M.W. | 2008-04-18 1:11:00 PM


Oh yes, your questions...

"What do you think about mothers who trade child support for contact time, M.W.?"

I think it's reprehensible.


"Children flourish when they have both parents actively and heavily involved in their up-bringing -- so let's focus on achieving that for a change, shall we?"

I'm pretty sure that's what I was advocating in my last point.


"I suspect she would be the first to complain if a father wanted to take early retirement while the kids were still trying to go through university. But why should mothers stay at home eating bon-bons and watching soaps after the children are in school, if money is so important to their well-being?"

Talk about trading on myths and stereotypes...


I seem to have had a sex change somewhere throughout these posts.


You appear to have missed my point that ensuring visitation and access is more important than the money - which is the point you also claim to be making. So it is unfortunate that you focus solely on the money, to the exclusion of everything else.


It's been a blast.

Posted by: M.W. | 2008-04-18 1:13:01 PM


M.W.:

Yes, lawyers who encourage their clients to make frivolous application after frvolous application, draining everyone's funds, are a big part of the problem. But neither our judges nor our Law Societies care -- and believe me, I have tried to interest them. If anything, the system circles the wagons to defend these unconscionable practices.

E.g.: Last December I asked Justice Graesser for costs because the opposing lawyer forced me into Court not once but twice in less than a month just to get adjournments to which I was absolutely entitled. I wanted an adjournment so I could cross-examine her client on her Affidavit. Justice Graesser granted me the adjournment automatically, but declined to give me costs, saying he didn't think mom should have to pay costs. I told him I didn't think mom should have to either, and asked for costs to be awarded against the opposing lawyer, which he declined to do as well. When I asked him what I was supposed to do about the 2 hours I had wasted waiting in morning chambers that day, he glibly told me to bill it out to dad! Terrific! Neither the lawyer nor mom should have to pay for these frivolous steps in the litigation; dad should. Excellent!

So we have the Chief Justice of Canada criss-crossing the country giving speeches decrying the fact that the costs of pursuing family cases is leading to a burden on the system from unrepresented litigants, while at the same time our Lordships and our Ladyships encourage the draining of family resources by unscrupulous or incompetent lawyers by refusing to discipline them for clearly unmeritorious conduct in litigation. The left hand knows not what the right hand is doing, and undoes it all.

To add insult to injury, my reward for trying to enlighten judges about the obviously detrimental effects of their short-sighted and contrary-to-law rulings is to be complained about to the Law Society! It's no wonder the layperson has such a low opinion of the system.

OK, well, I checked again and I saw nothing in your initial post that could be considered an endorsement of anything like a presumption of shared parenting. You do suggest that it is unfortunate that the Courts can't enforce "visitation" -- which is both insulting and wrong. It is insulting to refer to a father's parenting as "visitation;" and it is wrong that Courts can't enforce it. Denial of contact time would be cleared up almost instantly if judges simply ordered mothers to spend a weekend in jail the next time dad had his parenting time. (Retired) Justice Trussler used to do that occasionally, but it isn't nearly commonplace enough or automatic enough to be a deterrent.

Finally, I'm not trading on myths and stereotypes. You were the one who said that there is nothing wrong with mothers reducing their work commitments as a response to receiving child support. I was merely making the absurdity of your point more vivid.

Posted by: Grant Brown | 2008-04-18 3:36:47 PM


Heres a question: when I'm considering issue of the constitutionality of child support guidelines, should I rely on nine supreme court judges with years of experience in practice, in the academy and on the bench (but who, according to grant, are MERELY the final arbiters of the law)? Or with Grant, a clapped out academic with four years of experience at the bar, who couldn't cut it in legal practice? Hmmmmmm. Let me get back to you that one.

But its not just Grant's legal argument that flops like dead fish. His practical argument is equally flawed.
- in a perfect world, shared parenting would be the order of the day in separated families. Of course, in a perfect world, shared parenting would be the case in intact families too. That's not always true. So why, upon family breakdown, should a court presume that it is the best interests of the child that a distant work-obsessed father who has no practical experience in child-rearing be put on the same footing as a mother who has been the primary care-giver for a decade.
- as I understand his argument, it is oppressive to require a non-custodial parent to pay for anything more than the basic necessities of life as defined by the Criminal Code. Beyond that, any contribution should be at the discretion of the father, who will be driven by parental love and devotion to contribute generously and appropriately to the support of his child. While many fathers might well live up to that promise, two other outcomes seems more likely. In cases where there is significant discrepancy in income, the non-custodial parent will cheap out on the day-to-day support (i.e. the money that is given to the custodial parent to spend) while putting on a grand show when Junior is in his care. And in some cases, non-custodial parents will pay the minimum and just walk away. Not every father is a loving father, nor every mother a loving mother.

- as for Grant's suggestion that the law treats fathers like ATMs, spitting out money without ever receiving a word of thanks, he should take some comfort in the old joke that a Canadian is someone who says thank you to a bank machine. Seriously, while I'm sorry that the folks who attend Grant's pity-party feel like they're being treated like ATMs, a more objective view is that they are being treated like people who have taken on the responsibility of bringing a child into this world. Now that the union responsible for that child has come apart, it is not unreasonable to require them to devote an appropriate portion of their income to the raising of that child, despite any ill-will that might exist between Mom and Dad.

Posted by: truewest | 2008-04-19 10:34:00 AM


Hey, Grant - you have right to insinuate, insult etc. ... but, you man, are so mistaken ...


As for 'truewest' and Neo Fascists (oppression, tyranny, subversion of Natural Justice, ...):


"... human psychology doesn’t tolerate it for long. ..."
[Men, Misogyny and Misandry, Katherine Young and Paul Nathanson, "Ottawa Citizen", 6th April 2007,
"In our society’s concern for the rights of women, we’ve created another silent class of victims: men]


(yeah, even we girls know that ...)


Prof Katherine Young, McGill U.,
Paul Nathanson, Senior Researcher, McGill U.
"Legalizing Misandry: from Public Shame to Systemic Discrimination against Men"
(McGill-Queen's University Press 2006)
etc.

---------------


As for the so called "Best Interest of Child" in Anglo-West 'Common-Law' Jurisdictions:


One of the greatest Orwellian, Fascist, PsyWar-OP scams.


You are incapable of the "Unconditional Love for your biological child" because of your deeply rooted (historical-socio-societal-economical-anthropological etc.) psycho-pathology
but
you are mouthful of your so called "Best Interest of Child".


If only you know how many Canadians of non-Anglo/West EU 'anthropology' (highly intelligent, educated, talented etc.) are laughing at, or deeply scorn/contempt of, your perverse and psycho pathological Family/Inter-personal 'relations', and, in particuar here,
Parents -- child
and
male men -- female women
ones.


The more such hysterical Fascists "Best Interest of Child" noise, oppression, tyranny, the more we know how it is EXACTLY OPPOSITE!
No Pasaran!
Because ... "... human psychology doesn’t tolerate it for long. ..." .


Posted by: Maria | 2008-04-19 11:21:54 AM


I remind truewest again than my column was on CHILD SUPPORT, not custody, and that my views on custody are far more complicated and well-thought-out than I could even state in single column much less in a passing remark. All truewest does by continuing to blast away at my passing remarks on custody is that he is an ignorant, closed-minded blowhard who is determined to be as uncharitable as possible.

In any event, how seriously can anyone take truewest's commentary on the law when he doesn't even know what a "presumption" is?

A presumption in law is merely a premise that the Courts accept unless positive evidence is adduced to warrant a different conclusion. Without writing a treatise on the subject in this blog, I will only say two things about what a presumption of shared parenting does or does not entail:

1. If clear evidence is adduced that one parent does not want, or is incapable of handling, the day-to-day care of a child, whether due to work conflicts, drug habits, being in jail, or other personal failings -- then the presumption of shared parenting would be defeated or "rebutted."

2. What would NOT defeat a presumption of shared parenting is the mere assertion that mom was the primary caregiver at some point in time pre-separation, or that she is the "better" parent. A father who wants to learn to be a day-to-day caregiver of his children should be given that chance, even if he is somewhat less accomplished at it to start off with. (That's how moms learn to be primary caregivers, too, you know?)

Custody battles in our Courts are based on a false premise, namely that the "better" parent should get custody. So everyone goes to Court fighting tooth and nail trying to prove that they are "better" than the other instead of that they are capable of being cooperative.

The whole premise of our custody system is false because what is in the best interests of children is to have BOTH parents heavily involved in their lives -- so that even if one parent is "better" than the other in some abstract academic sense, it is still usually the case that two heads are better than one. The parent who wants to assert that their one head working alone is better for the children than both of their parent's heads working cooperatively should bear a fairly high onus of proof of that. Neanderthals like truewest who think it obvious that mom's head is almost always better than mom+dad's heads are invited to crawl back into the cave from whence they came.

truewest says, "In cases where there is significant discrepancy in income, the non-custodial parent will cheap out on the day-to-day support (i.e. the money that is given to the custodial parent to spend) while putting on a grand show when Junior is in his care." Well, there are practical limits: If dad wants Junior to play on the all-star hockey or ballet team, and mom can't afford the equipment, travel, hotels, tournament fees, etc., then dad is going to have to pony up even on alternate weeks when the kids are with her, yes?

But more fundamentally, so what? If your point is that dad's displays of material wealth somehow harm Junior's relationship with his or her mom, what is the basis for that fear? As a libertarian, I think it would be good for kids to learn that if you have a preference for not working, or for working at arts and crafts instead of CEOing, then your material lifestyle will be affected correspondingly. Children need to learn that life isn't "fair," and adults have to bear responsibility for their choices and preferences. They don't need to learn that the way to success is to glom onto a sugar-daddy, have a child, and milk him for all it is worth. Material wealth is only a contest if mom and dad play that game with their kids -- and the current regime of family law encourages the playing of that game very much. That was my point.

truewest says, "in some cases, non-custodial parents will pay the minimum and just walk away. Not every father is a loving father, nor every mother a loving mother." Yes, and if that is the level of commitment a parent has for a child, then perhaps it is best to let them just walk away. I've heard QB Justices say that when a man has a child out of wedlock, "he is the author of his own misfortune." But when women have children that the father never wanted, would it be too politically incorrect to say that they are the authors of their own misfortune? Maybe if the financial consequences of having children with unreliable partners were more bracing, it wouldn't happen so frequently. You think?

Or don't incentives work in your world?

Posted by: Grant Brown | 2008-04-19 3:06:20 PM


The shorter Grant Brown:
"As long as junior isn't starving, Daddy will pay only as much child support as Daddy feels like."

And why is that fair, Daddy?

"Because Daddy says so. Oh, and because Mommy is a slut, who sits around doing arts and crafts and plotting ways to turn you against me using my money. Watching you grow up will create a useful disincentive for women like Mommy, so they take care not to reproduce with bitter creeps like Daddy"

Posted by: truewest | 2008-04-19 6:01:30 PM


truewest,

Has it ever occurred to you that Daddy would pay as much as "MANDATED" by the state because he does not know better or he fears reprisals from the feminist lobby as expressed by the all powerful state?

Posted by: h2o273kk9 | 2008-04-19 6:42:58 PM


h2o,
Care to rephrase that?

Posted by: truewest | 2008-04-19 7:38:56 PM


truewest,

As English is not your natural language, I'll rephrase...

Do you think that the current child support guidelines are fair to the non-custodial parent under all conditions?

Posted by: h2o273kk9 | 2008-04-19 8:24:15 PM


The shorter truewest:

"As long as junior isn't starving, cohabiting Parents will pay only as much child support as cohabiting Parents feel like."

And why is that fair, cohabiting Parents?

"Because that's what the Criminal Code says."

(When facts and logic fail you, resort to misrepresentation and moral indignation.)

Since truewest prefers to think in sound-bites, here is a more accurate abridgement of my position: My comments about custodial mothers only refer to what CAN and sometimes DOES happen -- which is hardly open to dispute. In contrast, the existing child support regime presumes that all non-custodial fathers are deadbeats who need to be compelled to provide a particular level of support that roughly half of the children of intact families don't get and don't have a "right" to.

Posted by: Grant Brown | 2008-04-19 9:48:00 PM


h2o,
Your original post was incomprehensible. Your revised version is much clearer.
In answer to your question, I don't think the guideline amounts are fair to the non-custodial parent under all circumstances. They are particularly unfair in circumstances where the payor experiences a significant drop in income.

It isn't perfect, but it's far from the disaster that Brown and his pity party of bitter angry dads make it out to be and it's a damn sight better than the alternative that he proposes. And it sure as hell isn't constitutional.

Posted by: truewest | 2008-04-19 11:56:28 PM


truewest reveals his colours:

Freedom is to be shunned wherever there is an opening to take it away. Better for the almighty state -- Our Betters in Office and Our Lordships on the Bench -- to dictate how everyone should live their lives and how much they should spend on their kids and on what they should spend it. Because if you leave these choices up to the people -- especially those moral degenerates who happened to be separated from their family against their will and their fondest desire -- they will abuse their freedom, and it will all turn into a Pottersville disaster.

It makes good copy, in some circles. You should get a job for the Toronto Star. Michelle Landsberg retired a while ago, and they need more than one body to fill her large, man-hating shoes.

Posted by: Grant Brown | 2008-04-20 12:27:33 AM


P.S.: It makes no sense to say that the Child Support Guidelines "are particularly unfair in circumstances where the payor experiences a significant drop in income." Under those circumstances, the Guidelines permit an application to vary the child support amount to reflect the new (lower) income. All you do is moving to a different line in the Tables. If that's "particularly unfair," why isn't it "particularly unfair" to the payors who start off with a lower income and pay according to that line of the Tables?...

Hhhmmm. Come to think of it, truewest DOES think just like Justice Bastarache and the gang, after all.... A complete illogical muddle.

Posted by: Grant Brown | 2008-04-20 12:33:32 AM


Grant,
It's all very well to say that the Guidelines permit an application to vary, but as the saying goes, "motions costs money", and if your income just dropped from $70,000 to $30,000 money may be in short supply. Hence the unfairness.

The seething bitterness that runs through your posts -- "man-hating" women who "buy the affection of their children with their father's money", the eagerness to jail mothers who deny access -- and that is all too common amongst the mad dads who populate your pity party is perhaps the best response to your argument.
It's all very well to speak of "loving fathers" but that attitude suggests someone who, given the discretion, would not hesitate to use the monthly cheque as a leash or whip. The guidelines remove that weapon. If that's an infringement of your freedom, tough.

Posted by: truewest | 2008-04-20 7:52:32 AM


--------- Intro -----------

Files referred to below are at


http://www.law_analytics_1.keepandshare.com


The last Law Analytics study by Peter Karl Roscoe of Ottawa:


"200709xx Gender Bias in Family Law at the Court of Appeal for Ontario, P K Roscoe.pdf"


was base for unique judicial complaints against Abella JA, Charron JA, currently at the Supreme Court of Canada (SCC), for their conduct while they were at the Court of Appeal for Ontario (CAO):

"20070602 to CJC re Abella JA.pdf"
"20071019 from CJC re Abella JA.pdf"
"20071023 to CJC re Charron JA.pdf"
"20071031 from CJC re Charron JA.pdf"


Recently, the CJC ruled via (as usual) Chief Justice of Manitoba Scott, in 10-page decision. It will be further analyzed and published soon; its significance goes well beyond just complaints about/against Abella and Charron, and provides reference ruling to many aspects of overall 'philosophy' of Canadian Legal-Judicial-Justice Horror, including aspects directly related to this thread.
-------------------


New multi-part Peter Karl Roscoe's Study on "Monetary Transfers/Transfer Payments", aka 'Child (Spousal) Support' CS/SS, is in offing. The following are preliminaries based on Parts I-III of the Study:


1) conclusion would go on to show how the Government must spend lots of money regardless of the system in place, and the current laws create a 2 tier system.


2) A vindictive spouse can attempt to use these laws to inflict punishment on their partner and exact revenge.


3) Courts are given such wide discretion in interpretation of support laws that virtually any result is possible.


4) The government must spend large amounts of money financing collection agencies to ensure payments.

5) Court determinations can easily cost participants the equivalent of several years of actual support payments.

6)Predominantly MALE PAYORS.


7) CS awards are generally based on guideline support tables published by the federal and provincial governments. Amounts depend on the payors income and the number of children.


8)A less obvious distinction is in how they were made.


Most divorces are settled by agreement.
The spouses lawyers draft an agreement that is approved by the court. It would necessarily include support arrangements for any children, and any other important terms of the divorce.


Only a minority of divorces are litigated in court but agreements can be reopened to claim a change of circumstance. If there isn't agreement to change the award, the only recourse is court.


The most obvious difference between


court litigated
and
separation agreement awards


is that it can be very costly to hire a lawyer to make court appearances. A mere 5 to 10 K would be an extremely reasonable lawyers fee for a litigated variation. It could easily cost many times that. Fees for interim hearings legal fees might be less, but interim rulings usually mean there will be more hearings and expenses.


... to continue ...


Posted by: Maria | 2008-04-20 11:11:28 AM


Part II


... see 20-Apr-08 11:11:28 AM


9) The average child support order is less than 10 K per year.


10) Lawyers fees for the parents in a court action to vary an award typically exceed the value of a couple of years of actual payments.


11) Regardless of Canadian Fascist tyranny, oppression "best interests of the child",
it is not in the best interests of payors who must seek a change in the support order because they have lost their job or some other unfortunate financial circumstance. They may even have to borrow money to try to get the matter heard. Cost penalties could mean one party has to pay for both lawyers.


12) Court litigated awards may have other differences from separation agreements.


There are a large number of legal provisions that would allow the court discretion in setting awards.


The court may:
- impute income,
- or order that extraordinary expenses be included in the award. - also grant retroactive support creating current debt for past periods.
- If a payor is deemed to be a payment risk the court may order future support be paid in advance as a lump sum.
- Usually all arrears and prior costs must be paid in full to bring a case before the court.
- Security deposits to guarantee payments, or cover court costs in advance may even be required.


13)In contrast,

separation agreements seldom include such provisions !!!


Payors and recipients would not be likely to agree to measures that imposed additional complexity and financial burdens.


14) Data obtained from appraising Ontario court awards shows that the additional costs of litigated awards may be substantial.


15) A study of over 900 cases had a total orders close to 30 % with imputed incomes.


16) Over a 33% (1/3rd) had extraordinary expenses.


17) Almost 25% had retroactive awards,
and
over 20 % were in arrears.


18) The average value of all these secondary considerations was roughly equivalent to the average value of a full years of support payments.


19) the burden on the payor (i.e., MALE MAN) causes years of poverty in combination with
taxes,
lawyers fees,
and regular ongoing monthly support payments.


... to continue ...


Posted by: Maria | 2008-04-20 11:26:08 AM


Part III


... see 20-Apr-08 11:11:28 AM, 11:26:08 AM


20) The median value of retroactive arrears for the Ontario court study was found to be 10 K.


21) The median value for lump sums was 20 K,


22) median arrears were 17 K.


23) Median yearly child support payments were 9 K.


24) Data from government maintenance enforcement programs (MEP's ) would indicate close to 1/3 orders are in arrears.


This would certainly indicate inefficiency in meeting objectives.


Government enforcement of orders exceeds anything available to the private sector, and they have devised an elaborate system of punishments which include
- imprisonment,
- garnishment of wages,
- and seizure of property.


25) A closer examination of court awards exposes HORROR tyranny, oppression against MALE MEN:


24) When females have sole custody they are 100 % the recipients of net support.


When males have sole custody, ONLY 25% of them are net payors of spousal support.


25) When there is joint custody:


92 % of males are net payors.


26) The median male payment for female sole custody is 9.0 K per year.
vs
The median female payment for male sole custody was 3.2 K per year.


27) The median male payment for joint custody is 7.2 K per year.


28) Men pay almost 3 times as much (!!!!) as women, and may be the net payor even when they have sole custody (!!!).

Joint custody barely resulted in a noticeable difference in support payments.


29) The spouses of low income payors (i.e. MALE MEN's new spouses) may wind up with most of the family income leaving them struggling to survive and meet the monthly payments.


30) Endorsements from Ontario court litigated awards indicate a third (33%) of female recipients had higher gross incomes (!!!).


31) After transfers and tax, ONLY 25% of male payors still had higher incomes and 25 % of MALE MEN were reduced to disposable incomes less than 15 K.


32) In the year orders were made, the extra court costs reduced over 40% of payors (ie. MALE MEN) to disposable incomes less than 15 K !!!!!. Before consideration of lawyers fees!!!!


Posted by: Maria | 2008-04-20 11:41:00 AM


Grant is exactly right about the divorce industry and its family-destroying effects. Those who claim to doubt it are usually feminists or feminist-indoctrinated.

Anyone who has not seen a feminist judge or experienced "feminist legal theory" in action must not be a man who has spent any time in a canadian courtroom in any gender-related matter. Men in such circumstances will see "feminism-in-law" very clearly.

Posted by: Ken Wiebe | 2008-04-20 5:29:14 PM


SOme have asked about the importance of "best interest of the child" in these cases, and indeed in the legislation that creates these cases.

I would ask them: "The best interest of child", in whose opinion? My opinion? Your opinion? The judge's opinin? parliament's opinion?

When it is a question of my children, or your children, whose opinion matters the most? In my view, the opinion of the parents is paramount and absolute, unless there is a question of shocking child abuse. In essence, parleiament and the courts have no legitimate authority to meddle in anyone's family matters without just cause.

It is truly unfortunate that we live in a nation of do-gooder busybodies who find it easier to manage other people's lives badly, rather than manage their own well.

Posted by: Ken Wiebe | 2008-04-20 5:36:14 PM


Ken,
If the court has become involved in questions of custody, it is pretty much a given that the two parents - whose opinions you say must be paramount and absolute - do not have a single opinion as to the best interests of the child. In that case, it is the judge, relying on the parens patriae jurisdiction of the court, whose opinion that matters the most.
Since you asked.

Posted by: truewest | 2008-04-20 5:51:15 PM


As a beaten and terrorised man (hospitalised 2 for beatings), I had to dial 911 to have my drunken/stoned wife pulled off me no less than six time. She was never charged ONCE. Seems if you live in a nice neighborhood, women are allowed to beat men. The only thing calling 911 got for me was yet another beating (call the cops on me will you?). Beatings were on a regular by-weekly basis for everything from not making enough money to opening my own bank account (after 6 years of not having one). CAS falsified their records stating she never refused a random drug test (but I have her CAS worker telling me she refused her drug tests ON TAPE), cops falsified records omitting the hospital doctor telling them that I had a concussion, her lawyer instructing her on how to "get around" a positive drug test - to refuse drug tests - and how to product a false negative drug test - to disappear until she's clean to give a drug test, and much more (all on tape too). She has since managed to obtain joint custody with weekabout (50/50) access. Now she's going for full custody and primary residence and I'm shaking in my boots.

I will NOT pay her ANYTHING that she could use to get high on and that would result in my children being hurt. I repeat, I will not indirectly contribute to my children's harm IN ANY WAY. I will spend the last 20 years of my life behind bars if need be.

Best interest of children my ass. That's just lip service. Everyone knows it's really best interest of women. Even women know that.


Edit: I know, you're thinking....
"If he's in jail, who's going to take care of the kids?" Well.... that responsibility would fall on the judge who pitied her right? Pray for his soul if it comes to that.


Posted by: GoDirectlyToJail | 2008-04-20 8:07:18 PM


I love how Truewest succinctly and parsomoniously put the verbose embittered deadbeat dad brigade in their place! LOL! Grant Brown and company need to learn to edit their verbosity down to something which approaches intelligence, to paraphrase the late great Kurt Vonnegut.

Who would have thought that dead beat dads would have such a vocal fan club of supporters? Live and learn something new each day, not all of it edifying either! Have you no shame defending the dead beat dads of the world? Apparently not. What can one expect? These are afterall supporters of Mike the Knife Harris, Brian the Sleaze Mulroney, Grant the Know-nothing-see-nothing-hear-nothing Devine and Steve the briber Harper. Family values indeed!

Posted by: ROGER | 2008-04-20 8:09:37 PM


truewest:

It is merely a contingent fact about our society that judges are called upon to be the final arbiters of domestic disagreements between separated parents. Other societies use people with more relevant wisdom, and with much greater experience with the individual disputants -- such as the tribal elders, or the local clergy, or family counsels, or respected mutual friends, or... These people command greater respect than our courts do, and they tend to achieve much greater success at actually reducing friction. People would still rely more heavily on these informal arbiters if one of the parties to the dispute didn't know that they can usually get whatever they want by running off the the courts instead.

Our adversarial legal system simply doesn't work very well at all at sorting our domestic disagreements. It gives a decision, usually after a 10-minute theatrical performance by lawyers who are skilled at disguising their client's true character from the judge; but that's about all you can honestly say in favour of it. Flipping a coin would be almost as good a decision procedure for the vast bulk of decisions that get made in our family courts.

We should be looking for alternative ways of resolving family disputes; but first we have to remove the turds in the path to progress. Pre-eminent among them are the ideologues, the self-interested hangers-on, and the beneficiaries of bias in the current system. I'm not trying to convince these turds; that's a lost cause. I'm arguing for the benefit of the open-minded and reflective.

Pointing out the flaws in the system is not a "pity party," as it pleases you to say. It is the first step in motivating people to take a look at alternatives. All your heated rhetoric and insults show is that you are one of the turds that need to be cleared from the path to progress.

Posted by: Grant Brown | 2008-04-20 8:14:01 PM


Hey deadbeat GoDirectlyToJail--everyone was in on the conspiracy to protect a drug addict huh. Drug addicts have the police, F&CS (CAS), medical and health care workers, the courts, everyone, protect them from accountability huh. Yes, very plausible. So you think it is a badge of honour to go to jail for 20 years? What kind of warped and twisted logic and ethics do you have? Quit whining and seeing conspiracies everywhere. When did you find out your spouse was a druggie and why did you have children with her if you knew she was a druggie? Stop shifting responsibility!

Posted by: ROGER | 2008-04-20 8:16:10 PM


GoDirectlyToJail's story is ENTIRELY plausible, ROGER. Any lawyer who has practiced family law for 5 years should be able tell you about similar cases they have handled. (Unless they are like Judge Carole Curtis, who didn't take male clients.) The secret has been out for a while already -- for those who have eyes to see.

Posted by: Grant Brown | 2008-04-20 8:23:13 PM


What is Grant Brown on about with his alternatives to the courts rant? Does he not know of the alternative dispute resolution broohaha in Ontario and elsewhere where his logic was weighed and found wanting? Does he not know of the Sharia family dispute resolution proposal that was shut down in Ontario after the rednecks came flaming out of the woodwork? LOL! Heck, by the time the inferno died down, the long-established Jewish family alternative dispute resolution process went up in flames too and was disbanded despite having functioned well for many years. Bottom line? The courts were determined by everyone as the sole arbiters of what is fair and just and proper. Ranters like those on this blog were in the vanguard of those who poured jet fuel on that policy discussion. It is therefore the height of hilarity and disingenuity for Mr Brown to write what he did above! LOL! Blowback is rough!

Posted by: ROGER | 2008-04-20 8:24:10 PM


ROGER cryin' about shutting down Sharia Law in Ontario?

Quelle surprise!

Posted by: set you free | 2008-04-20 8:26:47 PM


Mr Brown, if the story is entirely plausible and so widespread as to be common knowledge, what are the officers of the court, the lawyers, the police and the crown doing to launch high level criminal investigations into the widespread obstruction of justice, criminal cover-ups, corruption and abuse of office? Where did all these radical feminist cops come from who cover for drug addicted mothers? I never realized how widespread these conspiracies are! Does Stockwell Day know about it? Is he in on it too? LOL! What a laugh!

Posted by: ROGER | 2008-04-20 8:28:38 PM


Set you Free--it is not I that am crying the blues over Sharia law but our good colleague here, the divine Mr Brown! LOL! Kindly address yourself to him. LOL!

Posted by: ROGER | 2008-04-20 8:30:17 PM



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