Child Support Court Challenge

By Rob Armstrong

An Alberta man, Roland Auer, is challenging the legitimacy of the Federal Child Support guidelines in Edmonton Court on December 2, 2020. If Mr. Auer is successful; the implications for more than one million divorced parents would be significant. It is hard to underscore just how significant this case is and what a new precedent might mean for these families.

This legal action has been years in the making. It started in 2013 and was eventually brought before the Supreme Court of Canada in 2015. At that time, it was decided that the matter should be heard in the province of Alberta. In 2018 there was a final determination of the role of the federal Department of Justice (DOJ) who is now an intervenor in the case. The procedural problems have delayed the matter seven years.

The application is supported by economist Chris Sarlo and economist Douglas Allen. Chris Sarlo wrote an extensive report on the Canadian Child Support Guidelines which is available here. Professor Allen has filed a supporting affidavit.

The application states that the child support guidelines are inconsistent with the divorce act in that they fail to consider the relative abilities of both spouses to contribute, and that the amounts determined are not reasonably calculated.
A key claim being made is that the guidelines do not consider the costs of both parents. We can see from the formula that it does assign all costs of the children to the custodial parent, which will be hard for the defense to argue otherwise. In an example presented, using a typical Canadian family, the custodial parent is left with more than $5,000 per month of after tax income whereas the non-custodial parent has approximately $2,500 remaining (when you consider all government benefits).

One interesting claim is that the guidelines were fictitiously created rather than based on real data from Canadian families as the DOJ once claimed. Although we have been unable to determine if any actual data was used by the DOJ, we have been able to determine that the guidelines are based on a Statistics Canada formula, which they themselves have indicated was created for the purpose of a low income study.

If you are not familiar with the term “non-custodial parent” it is important to to understand that approximately 80-90 percent of the more than one million divorced families are ordered into a custodial / non-custodial situation. Both parents are generally engaged in the upbringing of their children however one parent is granted more than 60 percent of the parenting time and the other parent is granted less than 40 percent.

The application focuses on non-custodial parents however it is stated that the guidelines are also incorrect in equal parenting situations. In situations where there is equal custody, the payable amount is calculated by using both parent’s incomes and subtracting the smaller guideline amount from the larger guideline amount, and the resulting net amount is paid.

The guidelines are based on a 40/30 equivalency model which is a controversial formula that makes the assumption that the first child of a marriage costs 40 percent of an adult and all subsequent children cost 30 percent of an adult. In effect, it assumes that as a couple has each
child they are purchasing another 30 or 40 percent of a car, a house, or a fridge. Theoretically, a couple with two children that previously had two cars, would have 3.4 cars, 1.7 fridges, and 1.7 homes. As most Canadian families know, often all that is required is a child seat and they can make do with their existing fridge and house.
Other stated problematic assumptions with the guidelines include that spending after the divorce will continue to match pre-divorce levels, spending on children rises linearly as income rises, that parents who have zero custody and 39 percent custody are the same, and that the non-custodial parent has none of the costs associated with raising the children. The guidelines themselves do not consider multiple marriages which statistically happen to more than 10 percent of Canadian households.
One obvious problem is that the guidelines do not consider government benefits such as the recently increased Canada Child benefit that are only given to the custodial parent.

The defense team is supported by law professor D. A. Rollie Thompson. In his filed affidavit there are a number of rebuttals including that all potential models have flaws, that the undue hardship process can be used in situations where there is more than one marriage, and that the intent of the benefits is to provide them to the custodial parent therefore they should not be taken into account. Other than pointing out a number of weaknesses in each area of the plaintiff’s case, there is no holistic case being made that explains why one parent should have twice the disposable income of the second parent.

It will be fascinating to see if the court will accept the evidence provided and what role the federal department of justice will play. Should the court find that the guidelines are indeed unfair there could be a future class action lawsuit and it may force the federal government to update the guidelines for the first time since 1997.

We encourage anyone who wishes to support this initiative to visit supportthechallenge.ca.  There is also a federal petition urging an update to the child support guidelines currently before parliament which can be found here. The petition was presented to parliament last week. One of the best ways to take action is to contact your local MP or local MLA directly and share your thoughts by email, letter or phone call!