A Saskatchewan father plans to appeal to the Supreme Court of Canada to overturn Canada’s Child Support Guidelines, arguing that they run contrary to the principles of the Divorce Act..Dr. Roland Auer, a professor of pathology and medicine at the University of Saskatchewan, has faced a long court battle since requesting a judicial review of the guidelines in 2013. He has two children from his first spouse, a child from his second spouse, and a biological child and adopted child with his current spouse..Auer’s lead lawyer on the challenge, Laura Warner, explained the case to the Western Standard..“The amount of child support that he pays to his one particular ex-spouse creates, in his submission, hardship visa vie the other children that he supports. At the absolute highest level, that's his story,” Warner said..“What it leads to is the desire to more critically evaluate the overall scheme of the child support guidelines. The odyssey that he's been on is to try to get a court to take a meaningful look at [the guidelines] in a substantial way.” The Federal Child Support Guidelines were implemented in 1997 with four stated principles. The first is “to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation” and the last, “to ensure consistent treatment of spouses and children who are in similar circumstances.”.The request for judicial review argues that the guidelines should be declared of no effect because they run contrary to the act’s objectives. Although the Divorce Act has been amended five times in the past ten years, the issues in the legal challenge remain unaddressed..The Federal government had adamantly fought the case from the beginning. It took a jurisdictional question of whether the case should be heard in provincial courts or federal courts all the way to the Supreme Court of Canada (SCC). A separate and subsequent federal argument on what standing it should have on the case was finally settled by the Alberta Court of Appeal in December of 2018..In May of 2021, Justice Rothwell of the Court of Queen’s Bench ruled against Auer. He stated that the government had “broad discretion…when enacting regulations pursuant to a broad statutory grant. Last November, the Court of Appeal of Alberta made a similar ruling..Warner said her legal team has until January 20 to apply to the SCC for a leave to appeal. Their opponents have 60 days to respond, and then Warner will have 10 days to reply. After that, the SCC will decide whether they want to hear the case..In an affidavit for the case, Nipissing University Emeritus Professor of Economics Christopher Sarlo demonstrated many ways the guidelines that favour the custodial parent (CP) against the non-custodial parent (NCP). SupportTheChallenge.ca documents the legal action and laid out Sarlo’s arguments as follows:.· the income of the custodial parent is ignored;.· the differing costs of raising children at different ages and in different locations is ignored;.· they assume the CP incurs all the costs of the children and the NCP has no costs;.· most of the tax credits and government benefits received by the CP are ignored;.· any responsibilities of the NCP to maintain children from prior or subsequent relationships are ignored; and.· it is assumed that parents spend the same percentage of their after-tax income on their children at higher income levels as they do at lower income levels, when it is obvious it is a decreasing percentage..Sarlo also argued the formula overestimates the financial cost of each child in nearly every family circumstance and parental income level. He also argued that the NCP should not be levied additional Section 7 expenses for children’s sports, music lessons, and dance..The guidelines say they are designed “to reduce conflict and tension between spouses” and “to improve the efficiency of the legal process…encouraging settlement.” In an interview with the Western Standard, Sarlo said the implementation of the guidelines gave him a much different experience..“I had a parenting plan with my ex-spouse. We both signed it, no problem, everything was going along. So someone told her ‘oh, there's a new thing, you can get more money out of it.’”.“You think about women's liberation, two adults signed a document and witnessed by her parents, everything was fine. We both had lawyers check our document, fine. It gave her several years to get her life in order. As a university graduate, it wasn't like she was incapable. But the court just simply said, ‘no, the guidelines are in now, and this is what you have to do.’ In fact, I was paying her more under the parenting plan than the guidelines provided. But the guidelines also had other provisions that made it difficult.”.Sarlo found himself drawn into a process experienced by hundreds of thousands, if not millions of Canadians, especially men..“Imagine you're going along, you're divorced, that's not a crime. And you get a letter from Ontario from a group called Family Responsibility Office. Right away it’s almost Orwellian. And they say, ‘we will take it from here. We're going to garnish your wages.’ So my employer has to know. There was no reason for them to know that I'm divorced and that this government organization would be reaching in. Its just embarrassing. There's no need for that; it would be just an automatic withdrawal.”.During visits to court, Sarlo would see long lines of fathers waiting for their cases to be heard. He said in the late 1990s, especially, the stats showed women most initiated custody and child support battles — usually with success..“Oftentimes, a woman will say, ‘well, I had an expectation that I would be able to stay at home with the children for the rest of my life. And so, that means that this person, if we get divorced, even if I initiate a divorce, he's obligated to support me for the rest of my life.’ I think that's old-fashioned thinking from a time and a day when women were treated as inferiors.”.In 2012, Sarlo released an analysis that showed how the guidelines were unfair to non-custodial parents. He said championing the issue became a torch too heavy to bear..“I was involved in it for best part of a decade of doing that [advocacy]. And at the end of the day, I wanted to leave it behind me. It was a disgusting part of life which I considered to be highly unfair. But I could see my way clear that in the future, my life would be my own, and my children would be with me, and so on. That ended up happening. And it was just the sort of thing that you want to put behind you,” Sarlo explained..“I got a lot of emails from men who are going through it, and I even met some of them when I was traveling and so on, and it was heart rending. Some of these people have gone through even worse than me, and they don't know where to turn. They don't know who to talk to. And they're obviously suicides involved in what should be a more humane system.”.The court application and accompanying website points to Quebec’s guidelines as having a better formula that makes consideration of unique income levels and post-divorce family structures. Warner said if the court challenge fails, those who believe in the cause can lobby Ottawa for changes, or for their provinces to opt out like Quebec did..“For the people who understand and believe in the points that we're making, if they can't get a legal solution, then yes, they're left with a political solution. And that's what would be open to them,” Warner said..“What we've put before the court [demonstrates]…that the Quebec regime…is better, more fair, and more accurately reflects the what the Divorce Act says which is couples are supposed to contribute proportionally, relative to their means.”.Although Sarlo believes the guidelines are unfair, he would rather have the government restrict its role to encouraging and facilitating mediation and parenting plans..“I'm mistrustful of government getting involved in almost anything. They just don't do a good job. Politics ends up getting into it,” Sarlo said..“The divorce rate is between 40 and 50%. And so there's a lot of people hurting out there. And the guidelines are not an ideal way [to deal with it]….“If you're going to get married, have a plan B. It's happening to so many people. Don't be like a little child that expecting somebody to bail you out, and so on. If there's a crime, if there's assault, or theft or anything like that, then that's where the law comes in. But if it's just a divorce, work it out on your own, each gets on with their own way. But there's people who get litigious when this happens, for whatever reason.”
