When your Ex Won’t Pay (Canada)

You read about them every day: so-called “Deadbeats” who refuse to pay their child or spousal support even though they’re living in the lap of luxury. There they are, jetting off to Hawaii again without a thought for their offspring who go to school hungry and in ragged old clothes, or their ex who can’t afford the rent. But how accurate is this picture?

“It’s not nearly as common as is popularly conceived,” states Pauline Green, a Toronto-area lawyer. “In 18 years of practice, I’ve only experienced two or three clients who’ve actually said ‘I will not pay.’ In child support cases, most non-custodial parents want to contribute something to their children. The problem is that many of them just don’t have the resources to make their payments.”

For spousal support, the situation is slightly different. “Spousal support generally falls into three categories,” says Toronto lawyer Warren W. Tobias. “On one end, there are very lengthy marriages, where spousal support is usually set in perpetuity. In cases where the couple is young, unless there are young children involved, no payments are generally made. Then there’s the gray area that falls in between the two; in those cases, support is set up so that there’s sufficient support for a sufficient length of time that each person can get back on his or her feet.” Since most divorces fall somewhere in between these two extremes, spousal-support payments are usually set for only a couple of years. Child support issues, however, tend to be much more emotionally-charged.

Stacy Robb, president and director of Divorce and Defence Strategies (D.A.D.S.) Canada, lays part of the blame for the defaults in Ontario on the legal system. “Many court support orders are being made retroactive, putting people into instant bankruptcy,” he says. “And variance applications to lower payments are regularly ignored by the legal system.”

Government red-tape further complicates the problem. In Ontario, the Family Responsibility Office (formerly the Family Support Plan) deals with all court-ordered settlements, ensuring support payments are made. But while it was set up to deal with problems, Pauline Green states that the Responsibility Office “has no discretion in cases where someone loses a job and so can’t make his or her payments on time.” The end result is that people are financially unable to make their payments, have difficulty changing their support amounts, and so are lumped in with willful defaulters as “deadbeats.”

“Large, frequent doses of media attention, legislative scrutiny, and public outrage have made child support the most debated and least understood aspect of family law,” writes attorney Jeffery M. Leving in his book Fathers’ Rights. “The child support system is not working — not for parents, not for children, and not for society,” he concludes.

Gene is a 35-year-old man who has been wrangling with his ex-wife about child support for and access to their eight-year-old daughter, Katy, for the past three years. “I’m in and out of court all the time,” he says bitterly. “I’ve already spent more on legal fees than I would have had to spend to support Katy to age 18 — about $200,000.” Gene stopped paying child support 15 months after his ex, Mary, stopped allowing him to see their daughter. “She hauls me into court regarding payment, and I haul her into court regarding access. I was a great father — she only denies access to yank my chain. Do you really think it’s in Katy’s best interests that she grow up without knowing her father?” Probably not — but is it in her best interests to grow up without adequate financial support, either?

Studies show that the children who adjust best to divorce are those who remain in close contact with both parents — as long as those parents are not in constant conflict. So assuming that Gene and Mary can agree to resolve their issues with each other — through counselling, therapy, or mediation, for instance — Gene is correct in thinking that it would be in Katy’s best interests to have regular, positive contact with her father. But until that happens, Gene must separate his anger at Mary from his obligations to Katy and start making child-support payments again.

Although some divorcing parents try to combine the two issues, the law says that child support and access are independent covenants. And rightly so: otherwise, an abusive parent could refuse to pay support unless the custodial parent allowed their child to spend time with him or her.

Yesterday’s unresolved issues fuel today’s conflict

Old arguments, old hurts, and anger from the past can cause couples to behave like Gene and Mary — each of whom is completely uninterested in trying to see things from the other’s point of view, and each would rather spend the next decade fighting in court than admit any responsibility for creating and maintaining the deadlock they’re in now.

“In this day and age, there’s no reason not to have shared parenting,” says Danny Guspie, executive director of Father’s Resources International. “Many people can’t get past their anger and end up in huge emotional arguments. They forget that they should be acting in a positive, pro-active, child-focused way.”

One way this might be accomplished would be to have divorcing parents create future goals for their families — and then to ensure that their actions are consistent with reaching those goals. For instance, a non-custodial parent might say, “I want my kids to feel happy and secure, I want to have a great relationship with them, and I want them to stay with me on weekends and for a month every summer.” Obviously, withholding child support that he or she can afford to pay is not the way to attain these goals.

We’ve all read the dismal stories about non-custodial parents who are defaulting on their child-support payments. But some American statistics show things in an entirely different light. Recent U.S. Census Bureau data states that fathers with joint custody pay their child support 90% of the time; fathers with visitation pay their child support 79.1% of the time; and fathers with neither joint custody nor visitation pay their support only 44% of the time. While comparable Canadian statistics won’t be available until the fall of 1998, Guspie and others feel that they’ll probably reflect similar trends. What does that tell you about the probable outcome of denying your spouse access to his or her kids?

How is the money spent?

Liz does pay her child support for their two kids to her ex-husband, Joe, but she’s getting increasingly upset about the way he seems to be spending it. “Last year, he took trips to the Caribbean and Europe, and our children are walking around looking like street urchins — ragged and ill-fitting clothes and sneakers that are more hole than shoe,” she fumes. “When they come to visit me, I end up buying them clothes and toiletries — even though I’m now on a very limited budget.” Liz thinks it’s adding insult to injury that she’s footing the bill for her ex to live “the good life” while their children do without, and she has considered withholding support until Joe proves to her that her money is being spent on the children.

“But how could I face my kids if I stopped paying for them?” she asks. Liz, who owns and runs a small retail business, works too many hours to have her kids on a full-time basis. But she has recently begun to examine her options more closely to see if there’s any way she could have primary custody and still be able to support her family. “Until then, I just have to come up with coping strategies — such as getting good-quality hand-me-downs from my sister’s kids, and keeping most of these clothes at my apartment so my kids will have something decent to wear when they’re with me.”

Parents like Liz feel it’s wrong that the courts are only interested in whether or not support is paid, and not how it’s spent. “Such complaints are very common,” says Toronto family lawyer Allen M. Cooper. “If the non-custodial parent is having problems with the way that their child support is being used, he or she can apply for a change in custody. But unless a judge decides that a custody change is in order, there’s not much that can be done.” Custodial parents don’t have to provide an accounting for the support payments they receive, but they do have a responsibility to use the funds to provide adequate care to their children. Of course, the definition of “adequate care” is somewhat subjective: for some, it’s clothes on the back and food on the table; for others, it’s private schools and ski vacations.

Cooper suggests that if this is a concern, a non-custodial parent could arrange to make direct payments to individuals or entities providing goods and services to their children — such as school and camp fees, extracurricular activities like music or sports lessons, and even rent payments. “Any settlement action can be arranged to compensate for such problems ahead of time,” says Cooper. That way, if you’re a non-custodial parent who doesn’t want or can’t have custody of the kids, you can be sure that some of your money is going to directly benefit your kids.

Interesting Fact: U.S. Census Bureau data states that fathers with joint custody pay their child support 90% of the time; fathers with visatation pay their child support 79.1% of the time, and fathers with neither joint custody nor visitation pay their support only 44% of the time.

I can pay — but I won’t

Most experts agree that the percentage of non-custodial parents who can easily afford to pay their child support but refuse to do so because they simply don’t want to comply with court-ordered support is quite low. There are as many reasons for non-payment as there are reasons to fall in or out of love. The most common “justifications” for withholding support seem to be an effort to force one’s ex to comply with court-ordered access; suspicion that the money isn’t being spent on the kids; and a simple desire to anger one’s ex.

If your ex won’t pay, and you really have made every effort to meet him or her halfway — by encouraging full access to the children, and involving your ex in decisions about their lives, for instance — then there are legal remedies available to you.

In Ontario, there are several options. The Family Responsibility Office deals with defaulters, pushing for property seizures, wage garnishments, or even jail time. Further changes are also in the works: as of this fall, collection agencies will be contracted to track down delinquent accounts — a measure that will hopefully streamline collection while freeing up counsellors so that they can deal with clients on a more personal level. A pilot program is also being tested this summer that will suspend driver’s licences. This should be of particular concern to willful defaulters who are self-employed. In extreme cases where funds are being “hidden,” a forensic accountant can be hired to search out assets. As a final measure, Warren Tobias suggests that private legal help can be obtained. “But it’s very costly,” he warns, “and unless there is a large amount of recoverable funds, this step is not really worthwhile.”

Instead, his advice is “not to play hardball with each other. Let the other person have enough for a decent living, and let them have some dignity.”