Canada: Supreme Court upholds child-support appeal

Stephen Thorne
Canadian Press

Thursday, November 10, 2005


OTTAWA -- In a decision lawyers hope will clarify often-murky
guidelines, the country's highest court said Thursday that support
payments do not necessarily rise or fall in concert with changes to
child custody.

In a majority decision, the Supreme Court of Canada upheld an appeal by
a mother whose support income was significantly reduced when her ex-
husband started seeing more of their child.

The high court awarded the mother $500 a month, down from the original
$563 a month but more than the $339 awarded by the Ontario Court of
Appeal.

Eight of nine judges said courts must take the financial situations of
both parents into account when determining support payments, and courts
must recognize that many child-care costs are fixed.

Indeed, the court said the cost of raising children may actually be
greater in shared custody than in sole custody.

"They're saying that time, in and of itself, does not mean that child
support should be reduced," said Deidre Smith, lawyer for mother Joanne
Contino.

"It's an important case because it helps Canadians understand how to
interpret the child-support guidelines. This issue has been bedevilling
Canadians, judges and lawyers . . . across the country."

The mother had primary custody of her son after she and husband Joseph
Contino separated in 1989 and divorced four years later.

The father had access to his boy on alternate weekends and Thursday
nights, but his visits increased by four evenings a month to accommodate
his ex-wife, who had enrolled in an evening class.

Various courts awarded wildly varying amounts over a five-year legal
fight.

In September 2000, Ontario Superior Court reduced Joseph Contino's
payments to $50 a month and awarded him court costs of $3,800. The
Divisional Court overturned the decision and boosted his payments to
$688.

The appeal court set that decision aside and ordered child support
payments of $399.61 a month.

The high court essentially said such awards cannot follow a strict
formula and must take into account inherent fixed costs such as car and
house insurance payments.

"The determination of an equitable division of the costs of support for
children in shared custody situations is a difficult matter; it is not
amenable to simple solutions," Justice Michel Bastarache wrote.

"Any attempt to apply strict formulae will fail to recognize the reality
of various families."

Smith said food and the like are the only things that tend to change
with custody arrangements. "And as expensive as it is to feed a teenage
boy, it's not the biggest ticket item on any budget."

Justice Morris Fish disagreed with his colleagues, saying child support
is an "imprecise" science that should at least ensure the child's
standard of living with both parents.

He said the appeal court's $399.61 award fell within the "acceptable
range."

The justices did not award costs, and their decision is not retroactive.
Four highly anticipated Alberta cases slated to come before them next
year will likely clarify retroactivity in such cases.

"Obviously, there has been a lot of difficulty for judges to come to a
consensus about how to approach this kind of situation," said Smith.

She said two important principles appear to emerge from the high court
decision -- ensuring as little change to the child's standard of living
as possible and demanding clear evidence from parents of expenses
related to custody arrangements before changes to support payments are
made.

Another Article...

The Supreme Court of Canada has ruled that a divorced father cannot
automatically expect to have support payments to his ex-wife reduced
just because he spends more time with their child.

The decision, released yesterday, could have broad implications for many
divorced parents across the country who are concerned that making
changes to custody arrangements might unfairly dent their financial
situation.

At issue is a section in the Federal Child Support Guidelines that sets
out how child-support payments are to be calculated when a parent has
custody of a child more than 40 per cent of the time.

The court ruling said the calculation must take into account the costs
and financial situation of both parents, and that a parent can't assume
there will be a cut in child support payments when he or she crosses the
40-per-cent threshold.


"The fact that there is no automatic trigger [for reducing payments] is
by far the key message from the court, and that in itself is very
productive," said Joel Miller, a partner at Ricketts Harris LLP in
Toronto.

"The Supreme Court has said quite clearly that you should not operate on
the basis of a standard fixed formula."

The specific case that went before the Supreme Court involved Joseph
Contino, his ex-wife, Joanne Leonelli-Contino, and their son. The
Toronto-area couple had a joint-custody agreement, and Mr. Contino
originally agreed in 1992 to pay child support of $500 a month.

But when Ms. Leonelli-Contino began taking a night course in 2000, Mr.
Contino took care of his son more frequently. He then applied for a
reduction under the child support guidelines.

Lower courts rulings were all over the map -- reducing the payments to
as low as $100 a month, and then increasing them to as high as $688. In
2003 the Ontario Court of Appeal set the payments at $399.61, and Ms.
Contino appealed that ruling to the Supreme Court.

Now the top court has set the support payments from Mr. Contino at $500
a month, while saying that increased time spent with a child doesn't
necessarily mean there has to be lower payments.

Each case must be dealt with individually, Mr. Justice Michel Bastarache
wrote in an opinion endorsed by eight of the nine judges. There should
be "emphasis on flexibility and fairness to ensure that the economic
reality and particular circumstances of each family are properly
accounted for."

The ruling says the courts must take into account what's being spent by
the parents and both their incomes, and can't rely on "common sense"
assumptions about the costs of taking care of the child.

Deidre Smith, the lawyer for Ms. Leonelli-Contino, said the decision
recognizes that spending more time with a child doesn't necessarily
translate into increased expenses.

There could be many different scenarios that push a parent's time with a
child beyond the 40-per-cent mark, she said.

In some instances a father might not incur any extra costs, because the
child is just going to his house for a few extra evenings. In other
cases the financial impact could be significant. "[A father] might be
saying to Mom: 'I'll take them to hockey and I'll pay for the hockey
because I know that's costing you six grand a year.'. . . so for a lot
of families there is a real reallocation of expenses," Ms. Smith said.

Overall, the decision should make it significantly easier for parents to
agree on custody schedules that allow children to spend substantial
amounts of time with each one, Ms. Smith said.

A mother, for example, will be more willing to allow the father
increased time with his kids, without being concerned that he is just
trying to get over the 40-per-cent mark so he can reduce his support
payments.

"They won't have that sword hanging over either of their necks, about
what kind of impact it's going to have on family finances," Ms. Smith
said. Separating child-rearing issues from financial issues "is a big
win for kids in Canada," she said.

Calgary family lawyer Lonny Balbi cautioned that the Supreme Court's
decision means that determining child-support payments will often be
very complex, because so many factors have to be taken into account. "We
now know this area is fraught with difficult calculations."

The court is not finished with the child-support issue. Next year it is
scheduled to hear several cases from Alberta that could determine if
there should be retroactive increases in support payments, if the income
of the payor has risen.

Apparently the courts believe that children don't need their fathers.
They're making it financially advantageous for them to skip out on their
kids entirely.

- Ron ^*^


Henry wrote:
Another Article...

The Supreme Court of Canada has ruled that a divorced father cannot
automatically expect to have support payments to his ex-wife reduced
just because he spends more time with their child.

The decision, released yesterday, could have broad implications for many
divorced parents across the country who are concerned that making
changes to custody arrangements might unfairly dent their financial
situation.

At issue is a section in the Federal Child Support Guidelines that sets
out how child-support payments are to be calculated when a parent has
custody of a child more than 40 per cent of the time.

The court ruling said the calculation must take into account the costs
and financial situation of both parents, and that a parent can't assume
there will be a cut in child support payments when he or she crosses the
40-per-cent threshold.


"The fact that there is no automatic trigger [for reducing payments] is
by far the key message from the court, and that in itself is very
productive," said Joel Miller, a partner at Ricketts Harris LLP in
Toronto.

"The Supreme Court has said quite clearly that you should not operate on
the basis of a standard fixed formula."

The specific case that went before the Supreme Court involved Joseph
Contino, his ex-wife, Joanne Leonelli-Contino, and their son. The
Toronto-area couple had a joint-custody agreement, and Mr. Contino
originally agreed in 1992 to pay child support of $500 a month.

But when Ms. Leonelli-Contino began taking a night course in 2000, Mr.
Contino took care of his son more frequently. He then applied for a
reduction under the child support guidelines.

Lower courts rulings were all over the map -- reducing the payments to
as low as $100 a month, and then increasing them to as high as $688. In
2003 the Ontario Court of Appeal set the payments at $399.61, and Ms.
Contino appealed that ruling to the Supreme Court.

Now the top court has set the support payments from Mr. Contino at $500
a month, while saying that increased time spent with a child doesn't
necessarily mean there has to be lower payments.

Each case must be dealt with individually, Mr. Justice Michel Bastarache
wrote in an opinion endorsed by eight of the nine judges. There should
be "emphasis on flexibility and fairness to ensure that the economic
reality and particular circumstances of each family are properly
accounted for."

The ruling says the courts must take into account what's being spent by
the parents and both their incomes, and can't rely on "common sense"
assumptions about the costs of taking care of the child.

Deidre Smith, the lawyer for Ms. Leonelli-Contino, said the decision
recognizes that spending more time with a child doesn't necessarily
translate into increased expenses.

There could be many different scenarios that push a parent's time with a
child beyond the 40-per-cent mark, she said.

In some instances a father might not incur any extra costs, because the
child is just going to his house for a few extra evenings. In other
cases the financial impact could be significant. "[A father] might be
saying to Mom: 'I'll take them to hockey and I'll pay for the hockey
because I know that's costing you six grand a year.'. . . so for a lot
of families there is a real reallocation of expenses," Ms. Smith said.

Overall, the decision should make it significantly easier for parents to
agree on custody schedules that allow children to spend substantial
amounts of time with each one, Ms. Smith said.

A mother, for example, will be more willing to allow the father
increased time with his kids, without being concerned that he is just
trying to get over the 40-per-cent mark so he can reduce his support
payments.

"They won't have that sword hanging over either of their necks, about
what kind of impact it's going to have on family finances," Ms. Smith
said. Separating child-rearing issues from financial issues "is a big
win for kids in Canada," she said.

Calgary family lawyer Lonny Balbi cautioned that the Supreme Court's
decision means that determining child-support payments will often be
very complex, because so many factors have to be taken into account. "We
now know this area is fraught with difficult calculations."

The court is not finished with the child-support issue. Next year it is
scheduled to hear several cases from Alberta that could determine if
there should be retroactive increases in support payments, if the income
of the payor has risen.