Those Shameful Guidelines

An edited version of this article first appeared in the April, 2003 issue of Canadian Lawyer. If you wish to reproduce this article, click here for copyright info.

Many years ago, shortly after I started practising family law, I found myself defending an unsophisticated labouring man against a claim for spousal support. He and his wife had actually been separated for several years, but she was suddenly being forced to make the support claim because she had recently gone on welfare.

Meanwhile, my client had begun cohabiting with another woman and her kids. She too had been on welfare before moving in. My client was proud of the fact that he had "taken her off the welfare rolls."

He was adamant, however, that he would not support his estranged wife. When opposing counsel asked why on discovery, he replied: "I’m only fucking one, I’m only paying for one."

Although I might have wished him to express himself a trifle more genteelly, his position nevertheless had a certain gut-level appeal. He didn’t mind supporting his new girlfriend—in fact, he was proud of it--because the relationship provided him with some form of satisfaction in return. However, he resented being asked to support someone who was no longer a source of any reciprocal benefit—neither pleasure, comfort nor companionship. Why, he was saying, should he be forced back into a relationship in which all the benefits now flowed in one direction only?

My client’s statement echoes in my mind even now, almost two decades later, when the issue of child support in child mobility cases arises.

Our legal system contains some glaring inconsistencies in how we treat parents who lose their children. At one end of the spectrum is the parent whose child is killed, whether in an accident or by deliberate malfeasance. That parent has the right to sue for compensation.

In the middle, there’s the parent who loses his parental status if his child is made a crown ward, or if the child is adopted by a step-parent after a court dispenses with the parent’s consent. Although this parent isn’t entitled to compensation, he is at least relieved of having to pay ongoing financial support.

At the opposite end of the spectrum is the parent who loses custody of his child after a divorce, and then finds the child being spirited away to the opposite end of the country. Not only is this parent considered undeserving of compensation, he’s actually required to pay money to the tormentor who caused him to suffer this loss: i.e., the custodial parent. The Child Support Guidelines are draconian on this point. Only under the most unusual circumstances will the extra expenses of exercising long-distance access result in even a token reduction of support.

Of course, having your child move away is not necessarily as traumatic as having your child die. The degree of pain depends on the circumstances. If the child starts to hate you under the influence of a bitter custodial parent, it can be excruciating. But even if there’s no malice involved, my observation over years of practice has been that it’s virtually impossible for a parent to maintain a close relationship with his child when they get to see each other only once or twice a year.

It’s this simple: people who don’t share common activities tend to drift apart. If you haven’t experienced this with your own child, you’ve probably experienced it with schoolmates from your youth or former co-workers. New friends and interests come along on both sides, and eventually you have little in common except your reminiscences.

This problem is likely to become even more prevalent following the Ontario Court of Appeal decision in Bjornson v. Creighton [2002] O.J. No. 4364. A mother living in Ontario had been denied permission by the trial judge to move her 6-year-old son to Alberta. However, the Court of Appeal reversed the trial judge in a decision which The National Post headlined as "’Happy’ mother trumps father’s visits, court says."
This is just one more precedent for allowing children to be moved away from non-custodial parents.

Interestingly, though, the case does have a wisp of silver lining, one that was glossed over in the newspaper coverage. The mother, Ms. Bjornson, seemed to have an instinctive understanding of the point my long-ago client had been trying to make—that it’s just not fair to force someone to pay support when he has done nothing wrong and he’s getting virtually nothing out of the relationship. Ms. Bjornson actually told the court that once she had moved to Alberta and returned to her nursing career, she expected to be able to support the child all by herself, without assistance from Mr. Creighton. Bravo for Ms. Bjornson. She did the decent thing.

And so, strangely enough, did the Court of Appeal. I would have expected them to impose Guideline support on the father regardless of the mother’s extraordinary offer. Instead, they reduced Mr. Creighton’s support obligation to a dollar per year, to commence two months after the child returned to Alberta. Their reasons contain nary a whisper about the Guidelines, despite the legal requirement that a court which departs from the Guidelines must record its reasons for doing so. Maybe they too have started to realize what a dreadful embarrassment the Guidelines are to Canada’s justice system.

- END -

..... .....

September 22,, 2003