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Calgary father faces $100,000 back payment
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

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