Canada

Part of Real World Divorce: web edition | Kindle edition

Like the U.S., the law varies dramatically in Canada from one province to another. Complicating matters further, Canada includes Quebec, which operates under a legal system that draws from the completely different Civil law tradition (Justinian and Napoleonic Codes).

Our West Coast source for Canadian law was Lloyd Duhaime, a distinguished attorney with offices in Vancouver and Victoria. Duhaime has extensive government experience, having served as counsel to the Prime Minister and a variety of Canadian ministries, including Justice, Defence, and Industry. He has argued in front of the Supreme Court of Canada. Duhaime is the author of the online Duhaime's Legal Dictionary. See http://www.duhaimelaw.com/ for a full biography.

Our East Coast (sort of) source was Aaron Franks, a partner at Toronto's Epstein Cole. Franks has a bachelor's in finance from the University of British Columbia (1991), an MBA, and a 1996 law degree from Toronto's Osgoode Hall Law School (generally ranked among the top three law schools within Canada). He teaches family law to students at Osgoode Hall and to fellow practitioners. He also edits a family law journal. See http://epsteincole.com/team/aaron-franks/ for a biography.

Duhaime explains the basics of a Canadian divorce on duhaime.org:

It may take a few minutes and a couple hundred bucks for two people to get married, but untying it in the wake of a permanent separation is a long, painful and expensive exercise. There's a reason they call it wedlock!

The Canadian constitution says that only the federal government can set divorce law.

The Government of Canada has a Divorce Act, and because it is a federal law, it applies fully and equally in all parts of Canada.

Canada has a "renovated" Divorce Act, which became law in 1968. This new law … allows for a divorce if the husband and wife have been separated for at least one year. This "no-fault" divorce means that most divorce applications to the courts are no longer contested.

The person who starts a divorce lawsuit in Canada is a "claimant" and what would have been the defendant in the old days is a "respondent." Duhaime said that this renaming of the parties was supposed to make people feel better about being embroiled in litigation. As in the U.S., the majority of people who file divorce lawsuits are women. Duhaime estimates that in his own work it has been close to the 72 percent number that we found by surveying a Massachusetts courthouse. (Kruk, cited below, says that the Canada-wide percentage is about 67 percent and that mothers who start lawsuits are generally able to get sole custody of children awarded by judges.)

Franks explained that the only ground for divorce is "breakdown of the marriage" and that this is generally shown with a year of separation. It is possible to live under the same roof and yet be "separated."

Duhaime told us that cases in the West typically go from filing to trial in about a year. A claimant can get the house, children, and cash in a 45-90-minute "interlocutory proceeding" that results in an "interim order." There are no witnesses testifying or being cross-examined at these hearings. "The decision will be based on affidavit and attorney argument," said Duhaime. Does a Canadian have to allege physical violence to get exclusive occupancy of house? "It depends on the judge, but generally not," said Duhaime. Is a custody decision made at a 45-minute hearing essentially permanent? "The decision is not prejudicial in theory but it is prejudicial in fact because of the establishment of an artificial status quo. Judges are pro-stability and reluctant to change the arrangements for children a third time."

Large divorce cases in Toronto can move slowly. Franks says "in the absolute best circumstance it will be about 18 months from filing to trial, but can easily take 3 or 4 years." The are "interim" or "temporary" orders available. The parties generally "have to go through a case conference with a judge before bringing a motion unless there is concern about child abduction or other urgent circumstances." Franks said that in some jurisdictions it can take several months to get to that case conference after which parties are free to bring motions. "A regular motion hearing [in Toronto] takes about one hour and is decided based on the paper record and argument," said Franks. As in the U.S. there is no practical means to appeal an interim order.

Duhaime said that the Canadian divorce process, like its U.S. counterpart, can be substantially accelerated using the domestic violence system. Franks pointed out that "The police do not have any discretion – if there is an allegation of domestic violence, they must generally lay a charge, and a term of release will usually be to not go near the home." Thus, as in the U.S., the resolution of a domestic violence complaint is often a de facto divorce (parties separated, custody of children awarded, cash flowing from one parent to the other other) even when the legal divorce may be years in the future.

Unlike in many U.S. states, Canadian divorce trials are presided over by judges from a general pool who Duhaime says "might have been hearing small claims" the day before. Judges are appointed for life, not elected. Unlike in some U.S. states, Canadians do not have the right to automatically disqualify a judge and get a new one assigned. On the other hand, it very likely won't be the same judge at the next hearing or trial because Canada does not keep the same judge assigned to one case.

Unlike the U.S., Canada has a federal child support guideline system. Confusingly, three Canadian provinces have their own child support guidelines. If both parents live in New Brunswick, Manitoba, or Quebec the provincial guidelines apply. If either parent lives in one of the other provinces or territories, or a foreign country, the federal guidelines apply.

Under Canadian law there is no incentive for a successful claimant to compromise with a respondent. Everything that a claimant might conceivably want from the co-parent can be ordered by the court. This includes child support through the child's completion of college, college expenses, day care expenses, medical expenses, and extracurricular activity costs. Canada also encourages successful claimants to obstruct shared custody. Maximum child support is payable when a child spends less than 40 percent time with the loser parent. Duhaime told us that "A lot of parents mess around with the kids' schedule so that they can stay at 60 percent or above."

A Canadian judge can order a defeated parent to pay for day care and other "extraordinary expenses" on top of the standard child support amount. "It could be horse-riding or hockey lessons," said Duhaime, "and orthodonture is classic. Look at the article on extraordinary expenses on duhaime.org." These are shared in proportion to income, which means that a parent who earns substantially more than the other will pay substantially all of these expenses.

Child support is in some ways less secure than in many U.S. jurisdictions. It cannot be collected from the estate of a dead parent, according to Duhaime, and it is not conventional for a judge to order a parent paying child support also to purchase life insurance. A child support revenue stream is at risk from a child's actions starting at age 14. "There is no case law or statute," says Duhaime, "but most judges will let a child make his or her own decision at age 14. Child support will then flow accordingly. A lot of pressure is put on children." The second point at which a child support recipient risks losing the revenue is when a child turns 18. As in Massachusetts, custodial parents will seek to collect child support even when a child is a full-time college student with all tuition, room, and board paid by the noncustodial parent. However, there is the option in Canada for the adult child to seek the support directly from the noncustodial parent: "If the father is my client, he's paying it to the child directly," said Duhaime, who referred us to his web article on the subject.

Franks confirmed that. generally, "Ontario and Canada-wide the child gets a voice, but not a choice. The older the child, the more persuasive the child's voice will generally be. By age 14 or 15 the child's voice comes close to a choice, absent significant allegations of improper conduct or parental alienation. Courts will be interested to hear from a child at age 7 to 9 but will want to know if their perspective is well thought-out. Whether judges speak to children directly is a hot issue."

Canada's child support system seems to sow discord among Canadians. We interviewed a professor at one of Canada's top universities. She said that it irked her that her partner paid four times as much in child support to his ex-wife as she was paid for full-time employment as a PhD researcher and teacher. We interviewed a man in his 20s who said that the system via which adult child support was paid to a parent has caused friction between himself and his mother. "I was graduated from college, working, and living in my own apartment," he recalled. "She was getting $750 per month in child support from my dad for me. I would ask her why it shouldn't be paid to me." What was she doing with the money? "She retired from her job in the software industry and was doing a lot of international vacation travel."

Is Canada's system in fact gold-plated? Certainly compared to Germany and Denmark or U.S. states with capped child support, but not compared to the U.S. states in which children are most lucrative. Franks told us that support for a single child in Ontario would be C$46,236 per year when the payor parent earned C$500,000 per year. Compare to $40,000 per year at the top of the Massachusetts guidelines when the defendant earns $250,000 per year. Franks said "It works out to C$27,000 per month [C$324,000 per year] if a payor for four children earns C$1.5 million. Technically the amount from the table is no longer presumptive for incomes over C$150,000 per year but it would have to be a fair amount north of C$1 million."

Canadian Psychology Research

Do Canadian researchers have a different view of psychology than their American academic counterparts? The answer seems to be "no." A December 2008 report "Child Custody, Access, and Parental Responsibility" by Edward Kruk, a professor at the University of British Columbia:

Although it is clear that shared parental responsibility is contraindicated in cases of established family violence, research shows that inter-parental conflict increases with court-mandated sole physical custody in cases with no previous violence, as fully half of first-time battering occurs after separation. New research evidence makes clear that inter-parental conflict decreases within a shared parental responsibility custody arrangement, as neither parent is threatened by the loss of the children and parental identity. The current framework of primary residential custody in disputed custody cases, contrary to dominant discourse, exposes both parents and children to violence.

The most recent research strongly supports a shift away from the “one size fits all,” “winner take all” sole custody framework toward the notion of shared parental responsibility.

Sole maternal custody often leads to parental alienation and father absence, and father absence is associated with negative child outcomes.

Children of divorce want equal time with their parents and consider shared parenting to be in their best interests.

Inter-parental conflict decreases over time in shared custody arrangements, and increases in sole custody arrangements.

Proposals such as the "primary caregiver" presumption, which would award custody to one "primary parent," overlook the reality of shared care arrangements in the majority of two-parent families, and the existence of primary attachment bonds between both parents and their children, even when one parent has assumed most of the day-to-day caregiving.

It has somehow come to be regarded as developmentally "correct" to award sole custody to one parent, usually the mother, with twice-monthly weekend access “visits” with the other parent, usually the father. Yet there is overwhelming evidence that such an arrangement disregards children’s physical, psychological and social needs for both parents in their lives.

Listening to the voices of children themselves (as young adults), we now have clear evidence of a perception of divorce fundamentally different from what most policymakers and legislators have assumed.

Has the Canadian divorce industry imposed a big revenue cut on itself by heeding what its academic psychologists say about children? The answer seems generally to be "no," and in fact the law of British Columbia explicitly tells judges not to award shared parenting by default: "In the making of parenting arrangements, no particular arrangement is presumed to be in the best interests of the child and without limiting that, the following must not be presumed: (a) that parental responsibilities should be allocated equally among guardians; (b) that parenting time should be shared equally among guardians; …"

Country background

The median individual income in Canada for 2012 was $31,320 per year (source: Statistics Canada). Canada spends 42 percent of its GDP to run local, provincial, and federal governments and owes 86 percent of GDP in public debt. It scores 80.2 in economic freedom. For comparison, the U.S. spends roughly the same percentage of GDP on government, owes more than 100 percent of GDP as public debt, and scores somewhat lower on economic freedom (source for all of these numbers: Heritage Foundation). Canada has a higher sales tax rate than the U.S., including a federal value-added tax, but substantially lower personal and corporate income tax rates.

Day care costs to consumers range from as little as $140 per month in Quebec to $1,200 per month in the wealthiest Anglophone cities. Note that these costs can be imposed on the parent who also pays child support.

We used online tools to calculate that the after-tax spending power of the median earner was about $26,000 per year in the higher-tax Canadian provinces. The Department of Justice's online calculator shows that this amount can be obtained when a parent earning $270,000 per year is sued for child support for a single child. Alternatively, this amount of after-tax spending power can be obtained by obtaining custody of two children from two different co-parents, each earning $126,000 per year.

Canada seems to be doing everything that it can, short of changing divorce and custody lawsuit outcomes, to make men feel good about the system. The examples on government web sites are generally of a father who earns less money than a mother, takes care of the children a larger percentage of the time, and collects child support cash every month from the mother.

The Scenarios

SCENARIO 1 (Professional Wife and Slacker Husband)

A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.

In at least one way going across the border from Washington State into Canada doesn't change the essentials. From our Washington State chapter:

"My main concern with the courts is that lack of consistency from judge to judge," says Todd DeVallance. "I have two cases with similar facts. In Case 1 Dad has a shared parenting schedule. In Case 2 Dad has supervised visitation [his children can see him only in a facility run by social workers]. The only difference is the judge that was drawn in each case. I could take the exact same facts and make the exact same argument in front of five judges and get five different rulings. This is such a challenge for family law litigators because clients come to us asking for advice."

Asked about the custody outcome in this scenario, Duhaime said "There is no ability to predict what the court is going to decide. Common law is supposed to evolve toward a consensus about resolving cases. However, in custody cases each judge thinks he or she is entitled to make a decision based almost purely on personal inclination. There is no consistency in the law and no way to tell clients what to expect."

One thing that Duhaime could predict was that the parties would have what Americans would call "joint legal custody" except that in Canada it functions more or less like what Americans call "sole legal custody." Duhaime referred us to his online legal dictionary's section on the "Joyce model of joint guardianship":

Parent #1 and Parent #2 shall have joint guardianship of the child[ren]. Joint guardianship means:

(a)  The parents are to be joint guardians of the estate[s] of the child[ren];

(b)  in the event of the death of either parent, the remaining parent will be the sole guardian of the person[s] of the child[ren];

(c)  Parent #1, who has the primary responsibility for the day-to-day care of the child[ren], will have the obligation to advise Parent #2 of any matters of a significant nature affecting the child[ren];

(d)  Parent #1 will have the obligation to discuss with Parent #2 any significant decisions which have to be made with respect to the child[ren], including significant decisions concerning the health (except emergency decisions), education, religious instruction, and general welfare of the child[ren], and Parent #2 will have the obligation to discuss these issues with Parent #1, and each parent will have the obligation to try to reach agreement with respect to those major decisions;

(e)  in the event that the parents cannot reach agreement with respect to any major decision despite their best efforts, Parent #1 will have the right to make such decision, and Parent #2 will have the right, under section 32 of the Family Relations Act, to seek a review of any decision which that parent considers contrary to the best interests of the child[ren];

(f)  each parent will have the right to obtain information concerning the child[ren] directly from third parties, including teachers, counsellors, medical professionals, and third-party caregivers.

How does it actually work? "Usually the mother becomes the ultimate decision-maker on questions of education, religion, health care, etc. and the father can go to court if he disagrees with her," said Duhaime. How is that different from sole legal custody? "She has to consult with him." Could she meet the requirements of the law by sending the father email before every decision, deleting any replies that come back, and doing whatever she wanted to do in the first place? "Yes," said Duhaime.

Franks had a similar perspective from Toronto: "Custody decisions are so factually dependent. For a one-year-old, however, it is unlikely that shared parenting will be put in place. Most social science literature suggests that a primary home base is important. The one constant in the child's life is the nanny. Any result would likely include the nanny going back and forth between homes. There is a good argument that the child will be primarily resident with the mother. When the child is with the husband the nanny should also be with him." Would the child stay overnight with the father? "Overnights used to be rare for children under 24 months of age, but limited overnights are becoming more common" said Franks.

What are the financial stakes in the custody case? The Department of Justice online calculator says that the father could get $2,618 per month in child support, which is $31,416 per year or about $691,152 through this child's likely college graduation date. In the event that the mother has physical custody, as predicted by Franks, the father will pay child support based on his income. "The income of the recipient doesn't matter at all," noted Franks, "though if the child is with one parent at least 40 percent of the time the table is no longer presumptive." How will the court determine how much to order the father to pay, given that his business is not profitable? "It is possible to bring in experts [to testify regarding the father's earning potential]," said Franks, "or sometimes judges will impute an annualized minimum wage."

What will the legal fees be? "Through trial the mother would spend at least $200,000," said Duhaime. Can the father get an American-style order from the judge via which the higher-earning mother will pay for his side of the fight? "No," responded Duhaime. Franks responded to the same question with "How long is a piece of string." In his experience there is almost no way to predict the length and cost of divorce litigation. Franks pointed out that Canada has a "loser pays" system for attorney fees. Does that mean the person who loses the house, the kids, and the cash also has to pay for both sides' fees? "No," said Franks. "Winner or losing is judged by pleadings and by any settlement offers. If you beat a settlement offer in court then you get a higher scale of costs from that date going forward." At the top of Franks's wishlist was that costs could be cut for divorce litigants and, indeed, current costs are so high that only about 1 percent of cases make it to trial.

What's the longest realistic period through which the photographer can live off the doctor via alimony? "Until his death," said Duhaime. "There are spousal support guidelines but they're not used by every judge." Duhaime's article "Spousal Support Under Canada's Divorce Act" quotes a Canadian judge in 2010 referring to spousal support as "historically the roulette of family law (blindfolds, darts and Ouija boards being optional)." If there are no children, the guidelines call for alimony to be paid for between 0.5 and 1 year for every year of marriage, "becoming indefinite after 20 years." What about if the doctor dies? The alimony can continue after her death, according to Duhaime's article, since a judge may order that a support order is binding on the debtor's estate.

Franks thought that a Toronto-area judge might give the father a small lump sum or a year or two of alimony and confirmed that "spousal support guidelines are advisory only."

Scenario 2: 14-year marriage of equals

A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year.  They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.

Franks said "A court won't burden parties that truly can't get along with shared parenting. There are appeals court decisions prohibiting courts from awarding joint custody to warring parties." So if you want to win sole custody you can do it by starting fights? "Those decisions do lead people to manufacture conflict," said Franks, but also pointed out that sometimes the tactic can backfire with the other parent winning sole custody. "Shared parenting is a possibility in this case but ordinarily people would say that a 3-year-old couldn't handle it. The parties may agree to have a mini-assessment done to determine whether all four children can handle shared parenting."

As in Scenario 1, Duhaime says that it is hard to predict what a judge would do with these facts. A judge does have the power to order equal parenting time even against the parties' wishes and Duhaime says that at least some British Columbia judges promote shared parenting. "Across the border into Alberta it could be a completely different parenting time outcome with the same facts," Duhaime said, "with each judge confidently saying that it was in the child's best interest."

The financial states here are substantial. The parent who is victorious in a custody fight will collect $18,480 per year in child support, i.e., ending up with $36,960 more in annual spending power than the defeated parent despite the fact that both will likely have to maintain five-bedroom houses. It works out to roughly $739,200 in payments over 20 years and therefore a difference of $1.48 million in wealth for two people with identical incomes. Franks notes that these heavy child support payments could then lead to litigation regarding whether the spouse who won custody would have to provide spousal support to the custody loser.

Does a U.S.-style program of pre-lawsuit planning work? "To win custody it would definitely help to take over the kid duties in the year prior to suing," said Duhaime.

Scenario 3: 10-year marriage with kids 2 and 5

An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.

Duhaime: "She wins this one." Franks: "Flip a coin as to whether the mom is allowed to stay-at-home. There are decisions favoring continuing the status quo and also decisions that say things are different after separation. It would depend on the judge. Note that the judge from the case conference can't hear the trial."

What would the child's schedule look like in the event that the mother convinces a judge to make her the primary parent? "Friday after school until Monday morning every other weekend," said Duhaime, "possibly with unlimited Skype, email, and telephone contact." What about overnights during the off-week? "Those would be looked at on request."

If the doctor wins his bid for 50/50 parenting can he cut back on his work schedule and earn $225,000 per year? "The court may impute his income back to $275,000," said Duhaime. He referenced section 19 of Canada's federal child support guidelines, which give the judge virtually infinite discretion. A defendant might be "intentionally under-employed" in the judge's opinion, or have investment income that is "taxed at a lower rate than employment or business income." The judge could disagree with a defendant's investment decisions: "the spouse’s property is not reasonably utilized to generate income."

How long will her alimony last? Franks says "the spousal support guidelines kick out a proposed amount and duration. There are two schedules, one for with children and one for a childless situation. When there are children the outside range is generally when the youngest graduates from high school. More likely is support without a termination date but reviewable if there is a material change."

"She could live indefinitely off spousal support. Spousal support is reviewable when there has been a material change in circumstances," says Duhaime. "Most attorneys will ask for a court order that spousal support end on Date X or that it be reviewable on Date X without there having been a material change." How does the payor know if there has been a material change? "He doesn't," said Duhaime. "She could move to Tanzania and cash her checks there." What would the likely amount be per year? "It is hard to calculate alimony from the guidelines," said Duhaime. Confirming what Duhaime said is that the Canadian Department of Justice publishes a 57-page PDF on "Obtaining Reliable and Repeatable SSAG Calculations". The paper opens with a description of attorneys in Canada coming up with different numbers despite agreeing on the formula. The core of the formula is that a claimant should get a percentage of the respondent's income that grows with the length of the marriage. The formula establishes a range of 1.5 to 2 percent of the "difference between the parties' gross incomes per year of cohabitation." American attorneys sometimes speak of the profits from a divorce as being "payment for time served"; Canada turns this into a formula. Someone who served only 1 year, for example, would be paid only for a maximum of 1 year and only 2 percent of the difference in income. Someone who served for 25 years could get 50 percent of the difference between the former spouses' incomes (i.e., 50 percent of the other person's income if one's own income were negligible).

Canada modifies the formula when there are children with a goal of "leaving the recipient with 40 percent to 46 percent of the parties' combined individual net disposable income" potentially until "the last or youngest child finishes school." School is defined as "high school" and thus the mother in this scenario could be collecting close to half of the father's income for 15 years. After the alimony terminates she would be entitled to tax-free child support of $44,148 per year based on the doctor's salary.

What happens to the house and the cash? "Property division and spousal support are related but notionally separate," said Franks. "Property division in Ontario is called 'equalization'. Spouses share the increase in net worth during the marriage. If one party's net worth has gone up by $800k and the other by $600k, one will pay the other $100k." Is this applied mechanically or adjustment by judges using discretion? "It is very hard to tinker with the formula," responded Franks. "Exceptions are if payments are unusually large with cohabitation of less than five years."

Scenario 4: 1.75-year marriage with 8-month-old child

A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.

Is Canada like the U.S. in having judges who are reluctant to award parenting time to fathers of young children? "Absolutely there is a 'tender years' doctrine in Canada," said Duhaime, "though most judges will deny that they are biased in favor of mothers when children are young." When will this child actually see the father? "The schedule entirely depends on the judge," said Duhaime. "It depends on the facts and arguments made."

Franks's perspective from Toronto was similar: "She wins on parenting time solely because of the age of the child." When would the child see the father? "It could be every other day for 1.5 hours." Will there be an automatic transition to a different schedule as the child ages? "Occasionally a judge will order a prospective schedule," Franks responded, "but it is rare."

Can the mother get alimony after a marriage that lasted less than two years? The guidelines would allow her to collect potentially for 17 years, when the child graduates from high school. "Probably not long-term support," said Duhaime. "It might be reviewable after a year."

Can the mother here get the $2 million in premarital savings? "Every province is different as to whether pre-marital assets are dividable," said Duhaime. "However, for the most part pre-marital assets are exempt from division, as would be an inheritance received during the marriage." Franks pointed out that under the "equalization" system described above, the mother here should get half of any appreciation. "If they didn't live together before the marriage, he might get out of paying her half. If he was going to have to pay her $1 million, for example, after a less-than-two-year marriage he could get that cut back because it approaches the unconscionable threshold. It is very discretion-driven."

What are the dates used to establish how much appreciation there has been? Franks explained that the property is valued on the date of the marriage and the date of separation. [Note that with volatile assets a divorce claimant has a significant market timing challenge. Initiating a divorce during a market boom could be worth millions of dollars more than if the divorce were started during a market downswing, even if the assets being divided had the identical value at the time of the respective trials.]

Whatever else happens, the mother is entitled to about $600,000 in child support payments over the next 22 years based on the doctor's earned income. She gets an additional amount based on his investment income. If inflation returns to late 1970s levels and the money is earning a nominal return of 20 percent, the mother gets an additional $781,440 until the child ages out of the system. What if the money is invested in technology stocks that pay very low dividends. The law cited above would seem to give the judge the authority to impute income to the $2 million at a higher rate of return. "She can make that argument," said Duhaime, "but judges are not very aggressive about using these tools because they don't see them very often."

Scenario 5: 18 year old free spirit/music lover; no marriage

An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.

Canada is similar to the U.S. in that child support revenue does not depend on whether or not the biological parents had been married. The mother would be on track to obtain custody of the child and $620,448 in tax-free child support over 23 years, plus an order for the father to pay for the child's college expenses, day care, health care, and other direct expenses.

Canada is similar to the U.S. in that government agencies exist to help mothers establish paternity and collect child support. The Department of Justice Web site tells "people who owe support" that they can have their wages and pension benefits taken by the government. They can lose their passport, federal marine and aviation licenses, and provincial driver's license (except in Quebec, apparently). They can be ordered "to serve time in jail."

Duhaime says that a mother can wait five years before informing the father of the child's existence and then collect child support retroactive to the child's birth. Franks says that "it is difficult to get retroactive child support beyond the date at which the father knows about the child."

What if she marries a billionaire diamond mine owner from Yellowknife? Does the doctor still have to transfer money from his upper-income household to one of the wealthiest households in the world? "The doctor can argue that he shouldn't pay the guideline child support amount," said Duhaime, "but that's a hard application to make. Judges hate them."

Removal/Relocation

Canada is the world's second largest country, after Russia. What if the victor of a custody lawsuit wants to take the children five time zones away from the defeated parent? "It is generally doable for a custodial mother. I've rarely seen these [relocation requests] fail," said Duhaime. "With 50/50 parenting it is harder but not impossible. It has to be for a legitimate reason."

Franks says that there are no guidelines for what Canadians call "mobility." There is, in his opinion, no way to predict the outcome of a judicial proceeding, though he notes that "the more involved the to-be-left-behind-parent has been in day-to-day life the less likely a mobility claim would be to succeed." Unlike in many U.S. states, the moving parent's reason for moving is not considered. Franks thought that there was a certain amount of variation by judge: "some judges may be more or less inclined toward mobility."

Quirks

As in some U.S. states, Canada invites litigation when a self-employed person is sued. If the respondent operates a "mom and pop" business, for example, payments to the partner arguably must be added back into income ("Payments by a self-employed person to a family member or someone else not at arm's length"). A person whose business was real estate leasing would find that his or her income for child support purposes was much higher than for tax purposes because the form instructs the self-employed to "Include the amount you deducted for capital cost allowance for real property (for example, buildings)." [I.e., if you're in the real estate business you would pay child support based on your revenue, not your profit.]

As in most U.S. states, Canada provides financial incentives to have children with multiple co-parents. If suing a co-parent with $400,000 in annual income, custody of three children with that common co-parent produces $1.84 million in child support revenue over 23 years. Three children with three different co-parents, on the other hand, yield $2.63 million in child support.

Changes on the Horizon/Wishlist

As noted above, Franks's first wishlist item was a reduction in the legal costs faced by divorcing Canadians. He pointed out that British Columbia recently updated their statutes to deal with mobility (relocation) and was, unusually for a top litigator, not opposed to custody guidelines or presumptions: "Sometimes I think that kids would be a lot better off if there were a simple and unwavering rule regarding parenting time. It is not separation or divorce that messes up kids but the years of litigation that follow."

Putting it all Together

"Judge considers how much child support Amir Johnson should pay" (TSN, August 11, 2015) is about "Alana Jung, a 25-year-old college student studying early childhood education." She had sex with a basketball player and, under the national formula, was entitled to CAD$1.355 million per year (CAD$33.9 million total if the cashflow terminates when the child turns 25). We found a source for early childhood educators in Alberta. They earn an average of CAD$14.50 per hour. Thus Ms. Jung's child support entitlement is equivalent to what she could earn from 1,300 years of full-time work (assuming 1,800 hours per year and that she doesn't pay any taxes on her wages).

Summary

Canada is similar to the U.S. in that it has moved from a "mom always wins custody" system to an "officially we can't tell you who will win" system in which parents spend hundreds of thousands of dollars to litigate and, at the end of it all, mom usually wins.

Canada shows that it is possible to run a system of federally established child support guidelines and thus eliminate a lot of forum shopping and litigation about where to litigate. Canada does not present litigants with extreme situations, e.g., a child that yields $234,000 over 18 years in Nevada and an identically situated child a mile away across the border that might yield $20 million under the California child support guidelines (see the Wisconsin and Minnesota chapters for a similar cross-border discrepancy).

Canada also shows that other countries are able to live with apparent inconsistencies regarding a child's best interest, e.g., with the same facts yielding a 50/50 parenting outcome in British Columbia and a custodial parent/every-other-weekend visitor outcome if the child had lived a mile across the border into Alberta.

Canadians seem to have a greater expectation that people who exhibit traditional virtues will be rewarded. Citizens of Massachusetts, Wisconsin, or New York are comfortable with the idea that a person who has a few children with a few medical doctors can earn a medical doctor's salary by sitting at home with the kids and a paid-for-by-the-fathers nanny. Ordinary Canadians, on the other hand, are disturbed by a child support formula that makes custody of children of brief encounters more lucrative than college and work.

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