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Top court ruling will impact every payer of child support,

Calgary father faces $100,000 back payment

Friday, August 19, 2005

Calgary Herald

Shelley Knapp

A Calgary family will be at the centre of a case that will be heard by Canada’s highest court and could end in a decision costing parents across the country millions in retroactive child support.

Lawyer, Deidre Smith heard Thursday that the Supreme Court of Canada will hear the appeal she filed on behalf of four Alberta fathers, including four from Calgary, who owe retroactive child support payments dating back to 1997.

At the centre is Calgarian Daryl Ross Henry, who owes $100,000 after the Alberta Court of Appeal ruled in January he should pay retroactive support for his two daughters because his income rose dramatically after his divorce.

“These aren’t dads who object to paying child support,” said Smith from her Toronto office.

“They object to the playing field being changed after the game has been played.”

She said all four of her clients were previously paying child support based on old court orders. The dispute centres around the retroactive lump sum.

Calgary lawyer Lonny Balbi, past chairman of the Canadian Bar Association’s national family section said there is plenty of confusion when it comes to child support.

“Getting it resolved one way or another helps everybody,” said Balbi. “There are very divergent views of what the law is, so this is a very important step being taken.”

The Alberta ruling in the Henry case runs contrary to 1997 nationwide guidelines that allow retroactive payments back to the date when the child support recipient goes to court seeking a review.

Those guidelines were upheld by an Ontario court ruling last year that said the onus is still on the recipient, not the payer, to question whether child support reflects salary hikes.

Under the Alberta Court of Appeal decision, the onus is on the payer to immediately inform the recipient about any salary increases and provide increased custody support retroactive to when a raise came into effect.

The Supreme Court of Canada decision – expected to be made sometime next year – will have to clarify which position is correct.

“This is just a huge kettle of fish, huge,” said Sean Cummings, a family mediator with Calgary Divorce Management Services.

“If the Supreme Court rules against these fathers and I believe they will, then every single child support payer will now be on the hook for retroactive child support payments.”

Smith acknowledges that the ramifications of the decision are wide-ranging.

A conservative estimate compiled by her office finds that at least 780,000 Canadian families have court-enforced support orders. If the smallest retroactive payment was $10,000 that means $780 – million changing hands.

“But it’s not only the money, that’s 780,000 cases of conflicts that have been created. There are 780,000 fights started.”

Dan Colborne, the lawyer for Henry’s ex-wife Celeste Rosanne Henry, said he is pleased that the Supreme Court will hear the case.

“This is of national importance,” said Colborne, of the law firm Thornborough, Smeltz, Gillis. “It’s an opportunity to conform that there is a positive obligation on payers to support their children.”

Paul Millar, a volunteer with Calgary’s Men’s Education Support Association, said the important thing that will come from the court ruling is clarity.

“We need to have consistent rules for the payers and the recipients. It will help reduce conflicts further down the road.”

sknapp@theherald.canwest.com