Federal child support guidelines incentivize women to leave the fathers of their children and for men to never marry at all
Across Canada, non-custodial parents (usually men) pay a disproportionate amount of child support, except for one place: Quebec. It opted out of an unjust system that Ottawa imposed in the mid-90s. Any provincial government with courage and justice should adopt the Quebec model.
The Federal Child Support Guidelines have been in effect since 1997, but their genesis began in 1990. The Family Law Committee of federal and provincial justice ministers sought a standardized, fair approach to child support. An FLC research report in 1992 found that, for middle-class Ontario families, the first child in an intact family added 20 per cent to household costs and the next one 10 per cent. In 1993, a Department of Justice (DOJ) study estimated that the first child added 25 per cent to costs, the second 13, and the third 15.
When the Divorce Act was changed to adopt the new guidelines, parliamentarians did not know what the final formulas would be. The DOJ conducted public consultations solely with feminist “social policy advocacy groups.” As a result, they chose a framework that assumed the first child added a whopping 40 per cent to household costs, and each additional one added 30.
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Analyses showed that the 40/30 equivalence scale was only realistic or fair when both parents had low but matching pre-tax incomes and remained single after parting. In other circumstances, the non-custodial parent paid more than their fair share.
A 2004 DOJ report found that, in court-contested cases, mothers got custody 90 per cent of the time. That means that, usually, dads lose the kids and a disproportionate share of their money to boot.
The only time the custodial parent’s income comes into play is when Section 7 expenses accrue, such as for dance, music, or sports. At that point, each parent’s income is compared and each pays an appropriate percentage. For the non-custodial parent, that percentage is then added to his already onerous bill.
Quebec’s approach is more sensible. Its guidelines use the income of both parents to determine child support amounts in overall support, not solely for specific activities. Its guidelines use basic child costs determined by experts to calculate child support amounts, not the 40/30 equivalence scale supported by the federal government.
In the federal guidelines, it is irrelevant whether the custodial parent actually spends the money on their children or how much the non-custodial parent spends on the child while in their care. That consideration only kicks in if the non-custodial parent has the children 40 per cent of the time or more.
Christopher Sarlo, a Nipissing University economics professor, examined the federal regime in-depth in 2014. In his 100-page report for the Fraser Institute, he cited an Australian study that found a non-custodial parent that had the child only one-fifth of the time still ended up paying between 28 per cent and 38 per cent of the annual costs of raising the child. Unlike Ottawa’s scheme, the Quebec guidelines adjust child support amounts as long as the non-custodial parent has the children at least 20 per cent of the time.
The Quebec guidelines attempt to accommodate new relationships for the non-custodial parent and what that means for the respective households’ ability to pay as they share child support. The federal guidelines entirely ignore this consideration.
Unlike the federal guidelines, the Quebec guidelines look at after-tax income, not pre-tax income, which is a better gauge of a parent’s capacity to pay. Here, non-custodial parent support declines as a percentage of after-tax income as income increases. However, in the federal guidelines, the percentage is mostly flat across income levels.
Put another way, the Quebec guidelines recognize that parents spend a declining percentage of disposable income on their children as their income rises. This means less of a gouge from a high-earning non-custodial parent.
As it stands, the federal guidelines incentivize women to leave the fathers of their children and for men to never marry at all. It also creates big business for family law firms at parents’ expense.
Roland Auer, a professor at the University of Saskatchewan, launched a legal challenge to the Federal Child Support Guidelines about a decade ago. The challenge argued that the guidelines run contrary to the principles of fairness and minimizing litigation which the Divorce Act says should be upheld by such guidelines.
Auer’s case has been contested in every way possible by the federal government and has been appealed to the Supreme Court. Ottawa has changed the Divorce Act five times since the case was launched, yet it has not corrected the glaring problems with child support. A website drawn in support of the case, called supportthechallenge.ca, has helped raise funds and awareness among Canadians.
Even so, premiers and ministers of justice should not wait for the result of the challenge at the Supreme Court. Whether the court decides that Ottawa was within its rights to impose such guidelines, the unfairness is clear, and the resulting social harm is vast. If Canada’s feminist prime minister won’t change the guidelines, premiers across Canada should follow Quebec’s lead and set up their own.
Lee Harding is a Research Associate at the Frontier Centre for Public Policy.
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This article is a masterfully concise critique of the Federal Child Support Guidelines (FCSG). Lower courts have refused to consider the substantive issues: instead, they hide behind the legal technicalities of the standard of review concluding that anything that is even remotely related to the subject matter is good enough. Without too much exaggeration, that’s analogous to qualifying your child to be a heart surgeon after their first frog dissection at school.
Great news that the Auer challenge of the FCSG is being appealed to the Supreme Court of Canada. At this point, the issue before the Supreme Court goes beyond reasonable child support guidelines but requires a better definition of standard of review than the current low bar of “anything goes”.