The Supreme Court and Child support: Another "one hit wonder"

Although I am not surprised that the Supreme Court of Canada today upheld the recent phenomenon of provincial family courts to make child support even more enforceable, I am disappointed. Now "retroactive child support" is the law and support paying parents - i.e. parents who have their children less than 40% of the time - are now officially responsible to pay more as their income goes up and retroactively if it is not reported. Unfortunately, there is a lack of federal policy on "parent child access", which makes this particular Supreme Court ruling magnify the complete absence of policy with respect to "parent/children access". This absence of policy on access becomes a gender issue because gender is still a factor in the awarding of custody by provincial courts.

With all other things being equal, gender is the single most important factor in the determining of child custody by provincial court judges who preside over the administration of the federal Divorce Act. This is in spite of the fact that Canada's Charter of Rights and Freedoms has protected since 1982 gender equality and has rendered inappropriate the expired patriarchal principles of the "tender year’s doctrine" that protected the "special relationship between mothers and their children". The appropriateness of "tender year’s doctrine" wore off with the entry of women at equal levels into the workforce, the frequency with which men care for their children while their wives work, the discovery that special relationships also exist between children and their fathers.

How can it be? The statement "best interest of the child" trumps any obligations to uphold gender equality according to the Charter in the awarding of child custody because it can become "spin" that makes the best interest of the child congruent with awarding custody to the mother. This typically means "standard visitation", which means that the mother would have the child(ren) 75 % of the time and the father would visit 25% of the time of every second weekend and Wednesday night. This tendency for there to be a "gender bias in sheep clothing" tainting the equitable administration of custody by gender has an exponential negative impact on men when it comes to the two priorities of the Divorce Act: child support and access.

Child Support: this is because child support is due to be paid by the father when the children live with the mother more than 60% of the time and with the father less than 40% of the time. Child support is "rarely" paid by women to men in those cases when men are awarded access because of a common fear by men in that position to enforce it for the perceived fragility of male custody of children.

Therefore, standard visitation preserves the patriarchy of money flowing from fathers to mothers in the form of child support regardless of the respective incomes of the parents involved or the extent to which there are second families and other children involved. Second families come second is a further message sent by this Supreme Court ruling. The irony is that second families are comprised of women and female children, who could be starving and without protection if dad falls behind his child support obligations to his first family. This is not a gender issue - it is about who benefits from lopsided family policy and who does not.

Access: because men typically do not have custody, they are the ones who have the most need for policy on the Divorce Act's other priority - "child access". Unlike child support, which has strict enforcement in place to motivate father's to pay child support to their children's mother, a principle strengthened by today's ruling, there is no non-litigious remedy to help parents who are denied access to their children to enforce that access. Instead, it can take years and tens of thousands of dollars via the courts to remedy a fairly common injustice, whether is it called "malicious mother's syndrome" or "parental alienation syndrome". Most offenses of this type are never proven because the jurisdiction is the family court and fathers would have to pay after tax dollars to retain lawyers to do a "private prosecution". Few have the financial wherewithal, especially after they pay their child support, which is also set in net dollars.

Ironically, the failure of the policy on custody to protect against gender bias creates as a result tainted child support policy that is also gender biased and preserves the flow of monies from men to women. The same is true with respect to access which is seemingly a lesser priority because of a lack of policy yet and delays that are attributable to the powerful lobbies that promote the status quo.

The Supreme Court of Canada should not be setting the policy agenda for Canada’s family policy because the government is too afraid of the lobbies who profess that “changes to the Divorce Act hurt women and children” to pass bill C-22. As such, the gap that exists between where we are now and equitable family policy widened a little bit more today with this ruling when compared to the absence of any clear message on the importance of access as a priority of the Divorce Act.