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Child support to rise with income

Calgary dad owes $108,000

Kelly Cryderman, Calgary Herald

Published: Tuesday, August 01, 2006

In a legal decision that could affect hundreds of thousands of families across the country, the Supreme Court of Canada said Monday parents who receive raises at work but do not give more in child support may later be walloped with retroactive charges.

The long-awaited decision, which focused on four Alberta families, will hit Calgary father Daryl Ross Henry with a retroactive child support bill of $108,000, to be paid to his former wife Celeste Rosanne Henry and their two daughters by 2010.

"Parents have an obligation to support their children in a way that is commensurate with their income," the unanimous high court ruling stated.

"This is a debt. This isn't a lottery," said Daniel Colborne, lawyer for Celeste Rosanne Henry. "When you shortchange child support, you shortchange kids."

While paying parents -- mostly men -- will now face greater responsibility for disclosing changes in their incomes, the complex ruling leaves courts ample room to determine whether there should be retroactive payments at all.

Judges will have to look at factors such as the circumstances of the children, the hardship the retroactive payments will cause and whether the parent making the support payments has a "reasonable excuse" for not paying more when getting a raise.

While the ruling suggests retroactive payments will become much more common, lawyers say the decision is far from clear. "It doesn't provide us with the definitive answers that some may have been looking for," said Sandra Hildebrand, who heads the family section of the Canadian Bar Association in southern Alberta.

But, Hildebrand said, "family law lawyers will be advising their clients that they should be addressing this issue if there is an increase in income." If they don't, "it could come back to haunt them."

Lawyers across Canada will be busy dealing with a backlog of cases that had been put on hold while the legal community awaited this ruling, and it's possible a rush of new cases may come forward.

In its ruling, the Supreme Court struck down the Alberta Court of Appeal's decision to award retroactive payments to two of the four Alberta families, saying the cases did not involve "blameworthy conduct" on the part of the paying father. It ruled on one case that assessing almost $16,000 in retroactive payments was too much of a burden for a man earning $23,000 a year.

But the Supreme Court held up the two other retroactive payment orders from the Alberta court.

The first was the Henry case. When the Henrys divorced in 1991, Daryl Ross Henry was earning $73,500. But a few years later, his salary had soared to above $180,000 and peaked in 2001 at $235,000.

At the same time, Henry's ex-wife struggled to provide the children with basic necessities on the $700-$1,200 he paid her monthly, significantly below federal guidelines.

The ruling said Henry used intimidation tactics with his former spouse, blamed her for her financial problems and insinuated he was short on cash -- successfully convincing her to pay for a bus ticket for one of the children to travel from her home near Edmonton to Calgary for a visit.

"There should be no dispute that the father in the present appeal acted in a blameworthy manner," the ruling said.

The court also decided in favour of retroactive payments in the case of Kenneth Hiemstra, whose former wife "paid a disproportionate share of the burden for supporting the children."

Deidre Smith, the Toronto-based lawyer for all of the four Alberta men, said her clients objected to retroactive payments going as far back as they did -- in Henry's case to 1997, the year federal guidelines were established.

Smith said the current system is "too cumbersome" to work as quickly as the Supreme Court ruling dictates, as it often takes months to change an order for child support payments.

"We're going to have to come up with a more streamlined process."

Photo: Gus Sleiman.

Brett Beadle, Calgary Herald

Gus Sleiman, president of the Men’s Educational Support Association, pictured at his restaurant, Mamma’s Ristorante, where members meet once a month, says the Supreme Court ruling failed to address all issues.

The ruling mandates that court-ordered retroactive payments will stem back to the date when the paying parent is first met with a request for more money. But if the paying parent hides money or is otherwise "blameworthy," retroactive payments may stretch back to the time of the pay increase.

Gus Sleiman, president of the Calgary-based Men's Educational Support Association, a men's advocacy group, said he was disappointed the courts did not address the issue of what happens if court-ordered support payments are not reduced when a man's income drops.

kcryderman@theherald.canwest.com The Calgary Herald 2006