September 24, 1998

Does a previous child support agreement or consent order enjoy a special status in the face of an application to vary child support under the Child Support Guidelines? It is trite law to state that courts can and do disregard a previous consensual arrangement with respect to child support when the court views the existing award as inadequate or otherwise in some way unfair to the custodial parent or child. Indeed, the Guidelines provide that the coming into force of this new system is itself sufficient ground to found a variation application. Section 14 of the Divorce Act states, in part:

For the purposes of subsection 17(4) of the Act, a change of circumstances is

(b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and

(c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

In other words, once the new system is in place (which federally means May 1, 1997), any previous child support agreement or order can, it would appear, be reconsidered under the Guidelines and readjusted accordingly. The plain words of the legislation essentially tell us that May 1, 1997, itself becomes the requisite change in circumstances to found a realignment of the child support obligation.

The policy behind such provision is readily apparent: Support recipients should be able to take advantage of the more favourable income tax treatment afforded to orders made after May 1, 1997. In many, if not most cases, this would result in a higher after tax award than before. Many custodial parents have taken advantage of the new law, as is their right and privilege. Non-custodial parents have complained but their complaints have not been sympathetically received. Primacy is given to the presumed needs of children so that they will benefit from the demonstrated (or presumed) earnings of the non-custodial parent.

In some cases, particularly where child support was fixed at a more generous level by earlier agreement, it is to the financial advantage of the non-custodial parent to apply in order to have the child support obligation determined under the new system. This variation could result in the non-custodial parent paying less. Since the needs of children are presumed in accordance with the standard Table mandated amounts, one would think that by the non-custodial parent paying the requisite Table amount, the needs are adequately addressed. One would have thought that the right to determine child support under the new system would apply with equal force to the non-custodial parent who applies to vary compared to the custodial parent who seeks a variation.

The British Columbia Court of Appeal has informed that there is no automatic right to obtain a variation of child support simply because May 1, 1997, has occurred.

One might have assumed that the strictures of the Guidelines, would, in a society that prides itself upon not discriminating because of gender or marital status, be applied without regard to extraneous factors. Indeed, in Francis v. Baker, Justice Abella of the Ontario Court of Appeal, stated (on behalf of a unanimous panel, at paragraph 20) that "unless contradicted by other parts of the legislation, a child under the age of majority is entitled to the amount stipulated in the Table from the paying parent plus any exceptional expenses found to be appropriate under s. 7 of the Guidelines." And further, Justice Abella cautions (at paragraph 48) that one should not enter into an analysis of the actual expenses incurred by the child; estimated expenses for the child "have been replaced by presumed expenses calculated to reflect ‘deemed’ reasonableness, based on the payor’s income." If this is correct law (and for those resident in Ontario it certainly is the law until the Supreme Court of Canada tells us otherwise), then likewise courts should be loathe to depart from the Table amount. In the area of "undue hardship" under section 10 of the Guidelines, the courts have been most reluctant to allow such claims to succeed. For example, Justice Robertson has stated: "Undue hardship is a tough threshold to meet." (2)

In Wang v. Wang, the British Columbia Court of Appeal carefully examined the needs of the children in light of a June 1996 consent Divorce Act judgment. The court determined that the trial judge had been quite correct in refusing to accede to the non-custodial father’s request to have child support adjusted under the Guidelines.

This issue of how we should approach previous agreements and orders where special provisions might allow a deviation from the standard tables, was discussed in Wang. The parents had a pre Guidelines consent child support order that was structured in such a way so that a special needs child could be adequately cared for and so that certain other debts could be retired. The non-custodial father applied to vary his $3,000.00 per month tax deductible order after May 1, 1997 but the mother resisted successfully before the Supreme Court. The father appealed. The father argued that his obligation should be determined under the Guidelines where he would have been better off, after tax.

The appeal court found that in cases where we are considering pre May 1, 1997 orders and agreements, the mere fact of the Guidelines coming into force cannot, on its own, be the basis for a variation application (paragraph 36).

It would therefore appear that while the threshold test under "undue hardship" is quite stringent, the test with respect to previous orders and agreements is less so. However, that less stringent test cannot be accessed under the Guidelines, according to the B.C.C.A., unless there is some material change in circumstances other than May 1, 1997. The court analyzes the various factors quite thoughtfully. The court’s judgment is a compassionate one and, it is suggested, a correct one. (3)

Justice Nicholls of the Ontario General Division recently had occasion (4) to consider the plea of a non-custodial mother who also wished to rely on a pre May 1, 1997 consent Divorce Judgment. The mother, under that consent judgment, had not been required to pay any child support "at this time". The custodial father applied for the table amount of $518.00 for the two children. While the mother pleaded undue hardship, the judge did not rest his decision on the undue hardship section (paragraph 23). Rather, he relied on the previous agreement. The judge found that this 1992 agreement (paragraph 22) "did directly or indirectly benefit the children and did so at the expense of the mother".

I would have thought that the benefit alluded to in section 15.1(5) and 17 (6.2) of the Divorce Act had to be something quite tangible. Apparently, this judge, when dealing with the mother’s application, felt otherwise. The judge therefore finds that ordering the table amount would be "inequitable given the provisions of the divorce judgment" and he ordered only $75.00 per month.

A non-custodial dad tries to rely on the presumptive table amounts in the Guidelines to reduce his child support. The court argues that we have to be solicitous of the actual needs of the children in light of a pre May 1997 consent divorce judgment and therefore dad’s variation application is dismissed (Wang). A non-custodial wealthy dad argues that the actual needs of the children must be considered when determining child support over and above the $150,000.00 income level; the court basically says that we do not consider the actual needs. Rather, under the Guidelines the needs of the children are assumed to be based upon the paying parent’s income level (Francis v. Baker). A non-custodial mom defends a child support application brought in the face of a pre May 1997 divorce judgment that permitted her to pay zero; the court allows $75.00 per month even though the presumptive table amount is $518.00 (Darbyson).

Is Wang good law? Is Francis v. Baker good law? Is Darbyson consistent with either? Are we to adhere to the standard Table amounts? What is the extent of the discretion that courts may exercise when departing from those mandated amounts? Dare we even suggest that the gender of the non-custodial parent may play a role here?

We need consistency. Yet, we equally need compassion not only for children, but for all who suffer during and following divorce. We need the law to be applied in the same fashion to all regardless of gender or other factors not specified in the legislation.

ENDNOTES:

(1) Wang v. Wang (1998), 41 B.C.L.R. (3d) 375 (B.C.C.A.)

(2) Swift v. Swift, unreported, digested at [1998] O.J. No. 501 (Ont. Gen. Div.), February 5, 1998. For a fuller discussion of "undue hardship", See Gene C. Colman: "Guidelines' Undue Hardship Produces Conflicting Decisions" in (1998) Vol. 13, Issue No. 7, Money & Family Law, p. 52. Note also: Camirand v. Beaulne, (1998) 160 D.L.R. (4th) 749 (Ont. Gen. Div.), Aitken, J., May 15, 1998:

"[para 28] Consistency and predictability are clear goals of the Guidelines, goals which cannot be achieved if courts frequently deviate from the Tables as a result of section 10 applications. That Parliament wished to minimize discretionary orders is clear from its adoption of the test of "undue hardship" rather than a test with a lower threshold."

(3) A panel of three different appeal justices reached the same legal conclusions recently in Garard v. Garard, unreported, digested at [1998] B.C.J. No. 2076 (B.C.C.A.), September 9, 1998. A similar decision was recently made in Saskatchewan. A non-custodial father was not permitted to reduce his previously agreed to monthly child support payments to Guidelines non tax deductible levels where to do so would have placed the custodial mother and the teenager in her custody in a much more difficult position, yet not afford to the father any significant after tax benefit. B.L.G.R. v. L.M.R., unreported, digested at [1998] S.J. No. 583 (Sask. Q.B.), Dawson, J., August 17, 1998.

(4) Darbyson v. Darbyson, unreported, digested at [1998] O.J. No. 2173 (Ont. Gen. Div.), May 22, 1998

POSTSCRIPT, April 16, 2000: When I wrote the above article I felt that the Wang decision was correct.  Given how Wang has been applied and interpreted, I no longer stand by my previous view.  I much prefer the Saskatchewan appellate decision of Dergousoff v. Dergousoff (April 9, 1999) where the court correctly holds that the mere coming into force of the Guidelines on May 1, 1997, does indeed constitute a material change in circumstances upon which a variation of child support can be made.  Other than the Sask. Court of Appeal, the courts in Canada seem to be holding that when a man applies for a variation based upon the change in the law, his case is summarily dismissed because the Guidelines would result in him paying less child support.  However, when a woman applies based solely on the new law coming into effect, she is invariably successful in obtaining more support.  If the Guidelines were supposed to bring greater certainty to the law, then so be it.  But at least let the law be applied equally and fairly across the board.  Let us not decide cases simply on the basis of whether the variation results in a higher or a lower order.  Surely, payors (read “men”) should be entitled to the same automatic application of the Guidelines as payees (read “women”).

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