In family law matters that involve children one of the first steps in moving the matter forward is determining child support and having it set. While the determination of income can be a time consuming and arduous task, on most occasions an interim payment can be determined either by agreement or by way of a court application until a final determination of income is made.
Having the support determined is one part of the occasion, however, compelling the payor (which about 97% of the time is the father) to pay support is another task. Recently, CBC News reported that over $3.7 Billion in support is outstanding currently across Canada. In Alberta the number is over $500 million. The numbers are staggering but at the same time not all too surprising to those of us that practice in this area. The article puts the blame on Maintenance Enforcement Programs across Canada that are underfunded and understaffed. Granted that is part of the problem, but other avenues exist to address this crisis.
The Courts, in particular the judiciary, must use a heavier hand with dealing with these “deadbeats.”
The Alberta Rules of Court, particularly Rule 10.52 & 10.53, provide the Court with the answer that may compel a payor to pay. In criminal law we have the legislated concept of denunciation and deterrence when sentencing an offender. Why not apply that criminal law principle of sentencing to those who are willing to engage in the act of creating a child but are not prepared to support the child once it is born? A few days of incarceration, which is available under Rule 10.53, for those who are in Civil Contempt may be the answer. Maintenance Enforcement can only do so much. If a suspended license is not having affect, the Court should step in.
No doubt there are occasions where a payor cannot pay. A loss/change of employment or medical issue. These are real and substantial reasons. However, a payor can apply to the court to vary the child support to reflect the change.
I can understand the reluctance on the part of judges to issue these heady penalties. The Court of Appeal in Ontario house outlined, in it’s view, what a trier of fact should take into account before coming down with a contempt of court ruling. In Fisher v. Fisher 2003 CanLII 2119, the Ontario Superior Court opined that Contempt Orders should be reserved for those serious breaches that justify serious consequences.
What can be more serious in family law matter than not abiding by a Court Order and supporting your child?
Having the support determined is one part of the occasion, however, compelling the payor (which about 97% of the time is the father) to pay support is another task. Recently, CBC News reported that over $3.7 Billion in support is outstanding currently across Canada. In Alberta the number is over $500 million. The numbers are staggering but at the same time not all too surprising to those of us that practice in this area. The article puts the blame on Maintenance Enforcement Programs across Canada that are underfunded and understaffed. Granted that is part of the problem, but other avenues exist to address this crisis.
The Courts, in particular the judiciary, must use a heavier hand with dealing with these “deadbeats.”
The Alberta Rules of Court, particularly Rule 10.52 & 10.53, provide the Court with the answer that may compel a payor to pay. In criminal law we have the legislated concept of denunciation and deterrence when sentencing an offender. Why not apply that criminal law principle of sentencing to those who are willing to engage in the act of creating a child but are not prepared to support the child once it is born? A few days of incarceration, which is available under Rule 10.53, for those who are in Civil Contempt may be the answer. Maintenance Enforcement can only do so much. If a suspended license is not having affect, the Court should step in.
No doubt there are occasions where a payor cannot pay. A loss/change of employment or medical issue. These are real and substantial reasons. However, a payor can apply to the court to vary the child support to reflect the change.
I can understand the reluctance on the part of judges to issue these heady penalties. The Court of Appeal in Ontario house outlined, in it’s view, what a trier of fact should take into account before coming down with a contempt of court ruling. In Fisher v. Fisher 2003 CanLII 2119, the Ontario Superior Court opined that Contempt Orders should be reserved for those serious breaches that justify serious consequences.
What can be more serious in family law matter than not abiding by a Court Order and supporting your child?