SECOND OR SUBSEQUENT FAMILIES AND THE CHILD SUPPORT GUIDELINES

Introduction: The Guidelines standard table amount of child support should reflect the total number of children for which the payor is responsible, whether or not that payor is living separate and apart from any particular child.

Primacy of the family in thought but not always in action: The injustice done to second and subsequent families in Canada is truly a black mark on our justice system. On the one hand, we tout the primacy of the family; yet, on the other hand we tend to impoverish the second and subsequent family. Public policy tends to preserve and protect the financial integrity of the custodial parent’s part of the first family unit.

Our intent to treat all equitably in theory is mandated in the Guidelines:

1. The objectives of these Guidelines are … (d) to ensure consistent treatment of spouses and children who are in similar circumstances.

Ontario’s Family Law Act states in its preamble:

Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership;

The federal and Ontario objectives are directed at those who are embroiled in separation and divorce. Certainly, we should strive to treat those similarly situated in a similar fashion. Canadians pride themselves on being ‘fair’ and even handed. However, why should children of intact second and subsequent families be treated any less fairly than previous children of separated families? Why should we continue to promote what amounts essentially to a punitive approach against payors who have children in second or subsequent relationships? What does that say about how we are treating their entirely innocent children?

We give lip service as a society to the importance of family. However, when we have to make choices with respect to supporting the integrity of families, we invariably adopt an unnecessarily punitive approach against support payors (usually men) even though such an approach does harm to children of second families, let alone to the children of the first marriage! [For an analysis of our system’s punitive approach to men and its derivation from gender bias and stereotyping, please see Gene C. Colman, Gender Bias: Where are We?, National Family Law Program 2000, Federation of Law Societies, Volume II – reproduced at this web site.]

Our social policy does not make any sense: There is no valid policy reason to favour one family over another. Children do not choose whether to be born of a first marriage/union or a subsequent marriage/union. Why should children be treated differently? Our social policy makes no logical sense and even less human sense. We now recognize families where the parents do not marry because we are (in part) concerned for the children and the financial support that we mandate they receive. We have long gone past recognizing common law spouses and their rights and we are now in the process of recognizing families where the parties are of the same gender; we are in the process of extending to such unions most, if not all the rights and privileges of married heterosexual partners. For example, same gender couples are increasingly gaining the right to adopt children. All of this revolutionary social policy is in the name of recognizing families – no matter what their configuration (sexual or otherwise). Surely if our social policy recognizes non traditional families through legislation and case law, then should it not logically follow that we provide equal recognition and indeed substantive protection to children of second and subsequent families?

We are a liberal, permissive society. Anything goes - except when it comes to men who are required to pay child support. Those men we tend to denigrate and demonize.[See the writer’s article referred to above.] Those men we tend to label as ‘deadbeats’ and impute to them all sorts of nefarious motivations. For example, there are instances in the case law of judges excoriating men who dare to have children of subsequent unions – such men are criticized for having the gall to make more children when they should have given priority to the children of the first marriage. [For one example, see paragraph 44 of Camirand v. Beaulne, 1998 CarswellOnt 2216, [1998] O.J. No. 2163, 160 D.L.R. (4th) 749 (Ont. Gen. Div.), Aitken, J.] Our social policy in favour of families and children breaks down abominably when faced with the choice of being fair to all children versus demonizing support payors and making them pay amounts of child support that serve to severely prejudice if not impoverish children of second and subsequent families.

Demonization of support payors – men: The demonization of support payors has been ably documented in the ten million dollar U. S. federal research study conducted by Professor Sanford Braver. [Sanford Braver and Diane O’Connell: Divorced Dads: Shattering the Myths. The surprising truth about fathers, children and divorce, Penguin-Putnam, New York, 1998] Braver set out to examine why men appeared to disengage from their children post divorce. While he found that this was indeed a problem, it did not exist to the same extent as others had suggested. Braver came to examine the myths and stereotypes that drive U.S. public policy. Applying the critical analysis of a social scientist, he scientifically and most convincingly shattered the major myths that drive U.S. public policy around fathers and divorce. This author heartily recommends this book to policy makers. We learn from Braver that the common myths simply do not stand up to rigorous scientific analysis. Two of these myths are:

Divorced dads are deadbeat dads.
Divorced fathers impoverish their former wives and children.

It would be beyond the scope of this paper to examine how Braver shatters the myths. This author can only suggest that policy makers simply read the book. It’s an easy read and well worth the minimal effort as it helps the reader to develop the intellectual tools to critically examine the means of data collection and analysis in the mounds of social science literature that masquerades as scientific research. A grasp of Braver’s work will greatly assist policy makers to be critical of all data and subject such data to rigorous analysis that heretofore has apparently been lacking.

Sensible basis for social policy: If we proceed then from two very basic assumptions: 1. that public policy ought not to be driven by the demonization of men; and, 2. that children of all marriages and relationships ought to command an equitable share of the father’s resources (based upon income) – then it follows that the “undue hardship” provision of the Guidelines is totally inadequate to address the latter concern and no simple technical amendment can really fix the problem. We need a paradigmatic shift in attitude.

“Guidelines’ Undue Hardship Produces Conflicting Decisions”, Money & Family Law, Vol. 13, No. 7, July 1998 - reproduced at this author’s web site. ] The case law emphasizes for us that mere “hardship” is acceptable under the law. Only ‘undue’ hardship, if proven, gives the court some discretion to deviate from the standard table amount. The net effect of the Guidelines and the case law is that second and subsequent families are forced to struggle under what amounts to impossible financial responsibilities in many cases.

Policy should demand that we recognize legitimate claims to support from all children of the payor: Treating all children of a payor (usually the man) equitably demands that public policy through the Guidelines recognize that the amount of child support to be paid reflects the total number of children for which the payor is responsible. (A small number of cases have adopted this approach.) In other words, if payor A had three children with wife #1, became divorced from wife #1, and then was living with wife #2 where he had financial responsibility for two more children, then payor A should be required to pay wife #1 three fifths of the table amount on account of the three (of his five) children who were residing with wife #1. This approach per force would equitably recognize the legitimate claims of the children from a first relationship that had broken down as well as the legitimate claims of the children of any subsequent union where the relationship had not broken down (or even had broken down).

We must recognize that payors (usually men) do not always have unlimited resources (even though they are frequently treated by the courts as if they do). Payors often have various financial responsibilities that are not even recognized in child support law. (One explicit example of this philosophy is the Guidelines mathematical design that specifically assumes, against all logic and common sense, that the non-custodial parent has absolutely no child care expenses. See Federal Child Support Guidelines: A Technical Report, Research Report CSR-1991-1E, Department of Justice, December 1997, particularly at page 2.) While not recognizing the payor’s legitimate expenses to exercise access to his children, the law also takes little if any cognizance of the payor’s true ability to pay. This policy consideration is obviously beyond the scope of this short paper. Suffice it to say, that our meat chart approach leaves us with very little room to deviate from the standard table amount. Predictability trumps fairness and compassion. At least in the area of second and subsequent families, we can perhaps alleviate and ameliorate the most blatant area of injustice in Canadian child support law and practice.

New section needed: It follows then that section 10 of the Child Support Guidelines is totally inadequate to deal with the problem. We need a new section in the Guidelines to implement such policy. Such policy would no more encourage men to have more children than it can be said that ordering the full table amount against various men in loco parentis encourages women to collect serial father figures in successive relationships.

Conclusion: This writer fully recognizes that adoption of such an equitable approach would result in some children obtaining less of their father’s resources than at present. However, this writer maintains that such an approach is the only fair means of dealing with children of second and subsequent relationships. The least that we can do as a society is treat the children fairly, even where we might have little or no inclination to treat the payors compassionately.