Wednesday, September 15, 1999
Supreme Court ruling in child-support case may affect wealthyBaker v. Francis
Elena Cherney
National Post
The Supreme Court of Canada will rule tomorrow in a high-profile child-support case that is expected to set a precedent for Canadians earning more than $150,000 annually who divorce.
Baker v. Francis will mark the first time the country's top court has ruled on how federal child-support guidelines, which came into effect in 1997, should be applied to the wealthy.
Thomas Baker, a Toronto entrepreneur whose net worth is $78- million, is contesting the monthly $10,034 he pays to his former wife for the support of their two children, under the federal guidelines.
That amount exceeds the needs of the two teenage girls, and amounts to spousal support for their mother, Monica Francis, a schoolteacher who earns $63,000 a year, said Stephen Grant, Mr. Baker's lawyer.
"It's a matter of principle," said Mr. Grant. "There's no reason he should be transferring wealth to his ex-wife when it exceeds what the children's needs are. This is not being parsimonious. The child-support guidelines are not a wealth re-distribution system."
For non-custodial, support-paying parents with incomes of less than $150,000, the federal guidelines provide a table outlining how much support is to be paid for each child, so the Baker ruling will not affect the majority of divorcing Canadians, said Brenda Cossman, a professor of family law at the University of Toronto.
But for parents with incomes above $150,000, the guidelines have left some gaps. On the portion of income above $150,000, where the federal table ends, a judge can order the parent to pay 1.04%, or can use his or her discretion to deem that formula "inappropriate" and award an alternate amount of support.
The interpretation of the word "inappropriate" is a central question for the Supreme Court, said Mr. Grant. In rejecting Mr. Baker's appeal last year, Judge Rosalie Abella of the Ontario Court of Appeal ruled that "inappropriate" should be interpreted to mean "inadequate," and that a judge has the discretion to increase the payment above 1.04%, but does not have the power to decrease the payment.
Family lawyers who have been watching the case expect the Supreme Court to overturn Judge Abella's interpretation of the word inappropriate and to allow judges to lower support payments. "There's a sense that on the face of it, inappropriate does not mean inadequate," said Prof. Cossman.
But at the same time, most court-watchers don't believe Mr. Baker will see his support payments lowered. Recent rulings, including last February's ruling in a Manitoba case where a man did not want to see his payments double along with his salary, have sent a message that the top court wants children to benefit from a parent's wealth, even when they reside with a less-wealthy parent.
Even if the court overturns Judge Abella's reading of the word "inappropriate" without reducing Mr. Baker's payments, the door will be open for Mr. Baker to return to court, said Mr. Grant. Once the court has affirmed that trial judges have the power to reduce payments below the 1.04% rate, "there's nothing to stop us from going at it again," he said.
Mr. Grant said that while technically the Supreme Court ruling will only affect a small group of divorcing couples in which one earns more than $150,000, a reversal of Judge Abella's interpretation of the law could send a message to lower courts that there is such a thing as "excessive" child support -- even for a multi-millionaire parent. Mr. Grant cited the case of Tauber v. Tauber, in which a man with a $2.5-million income was required to pay $17,000 a month to support an 18-month-old child.
Jeffery Wilson, a matrimonial lawyer who also takes on children's rights cases, said "there's a feeling" in many lower courts that the Ontario Court of Appeal rulings are unreasonable.
"There are a number of courts across the country where judges have questioned whether the strict interpretation of the Ontario Court of Appeal is appropriate," said Mr. Wilson. "How much can a child reasonably need?"
RELATED SITES: (Each link opens a new window) A brief look at the issue of spousal support and how the law treats it. Provides free articles and information on the financial and emotional aspects of divorce, plus the Divorce Source Professional Directory. "The Net's largest divorce resource" is mostly for an American audience, but it contains a wealth of practical advice about divorce, as well as several interactive bulletin boards.
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