Hiemstra v. Hiemstra at the Supreme Court of Canada
Now some of you may know that I am a lawyer. This means that I pay a lot of money to various people for the privilege of sitting in my office and taking telephone calls from people who hate lawyers. It is a great job.
Sometimes, when I need a distraction, I read about the recent cases which are finding their way through our justice system. One of the more interesting ones right now is called Hiemstra, and it is one of three similar cases which were argued before the Supreme Court of Canada on 14 February. Hiemstra has to do with child support, which you may know is money that one parent pays to the other parent after they have separated to provide for the financial support of their children. Almost always, the money is paid to the parent with whom the children live by the parent with whom the children do not live. The lion's share of the time, this means that the husband is paying money to the wife.
Now I do not know about you, but I have noticed that it is anathema for men to pay money to their ex-wives. Apparently, all these ex-husbands believe that it is being spent on heroin or Italian purses or other expensive addictions. Instead, it is usually being spent on the most expensive addiction of all, children. As a father of two children, I can speak from experience on how much it costs to keep my kids in shoes, clothes and hockey equipment. It is the secret that they never tell you about in sex education class in high school. All that being said, you would think that a father would be proud to do his duty and pay his child support each month so that little Donnie and Connie have a roof over their heads, decent food, clothing, and the opportunity to live a little before they grow up and go off to work in the salt mines.
Unfortunately, if you thought this you would often be wrong. There are an awful lot of hard-working and honest men out there who dutifully pay their child support. Some of them even pay more than they should. However, in many cases Daddy often does not pay his fair share of child support. He often fails to tell Mommy that he got a handsome raise last year and should be paying more child support than he already is. Sometimes, he does not even pay the child support everybody knows he is supposed to be paying. Right now, in Ontario, the agency which handles collection of this money says that over a billion dollars in support is owed that this agency is having a hard time collecting. Imagine that. A billion dollars.
Anyway, in Alberta the provincial Court of Appeal recently decided that child support payors who fail to inform their ex-spouses about increases in their incomes shall now be required to make the difference up to child support recipients, even if this amounts to a windfall for the recipient. In other words, if I paid child support of $800.00 per month for five years when I should have been paying $1,000.00 per month, I now owe $200.00 per month for sixty months (or $12,000.00 to those who are still counting) to the recipient. Ouch.
In Ontario, the provincial Court of Appeal has always prevaricated about doing what the Alberta Court of Appeal did. It left the option open, but generally said that support payors did not have to catch up what they should have paid. Because two provincial courts of appeal disagreed with each other, the Supreme Court of Canada agreed to hear the appeal. And that is why Ottawa was full of earnest family lawyers on Valentine's Day.
The Supreme Court of Canada decided to take some time to consider its decision (it almost always does, and for perfectly good reasons I am not going to elaborate upon). I will let you know in due course whether Mr. Hiemstra ends up a happy man or Mrs. Hiemstra ends up a happy woman. Either way, you know the old adage. You can please some of the people some of the time, and other people some of the time, but if you are a lawyer no one you ever meet or speak to is happy.
Sometimes, when I need a distraction, I read about the recent cases which are finding their way through our justice system. One of the more interesting ones right now is called Hiemstra, and it is one of three similar cases which were argued before the Supreme Court of Canada on 14 February. Hiemstra has to do with child support, which you may know is money that one parent pays to the other parent after they have separated to provide for the financial support of their children. Almost always, the money is paid to the parent with whom the children live by the parent with whom the children do not live. The lion's share of the time, this means that the husband is paying money to the wife.
Now I do not know about you, but I have noticed that it is anathema for men to pay money to their ex-wives. Apparently, all these ex-husbands believe that it is being spent on heroin or Italian purses or other expensive addictions. Instead, it is usually being spent on the most expensive addiction of all, children. As a father of two children, I can speak from experience on how much it costs to keep my kids in shoes, clothes and hockey equipment. It is the secret that they never tell you about in sex education class in high school. All that being said, you would think that a father would be proud to do his duty and pay his child support each month so that little Donnie and Connie have a roof over their heads, decent food, clothing, and the opportunity to live a little before they grow up and go off to work in the salt mines.
Unfortunately, if you thought this you would often be wrong. There are an awful lot of hard-working and honest men out there who dutifully pay their child support. Some of them even pay more than they should. However, in many cases Daddy often does not pay his fair share of child support. He often fails to tell Mommy that he got a handsome raise last year and should be paying more child support than he already is. Sometimes, he does not even pay the child support everybody knows he is supposed to be paying. Right now, in Ontario, the agency which handles collection of this money says that over a billion dollars in support is owed that this agency is having a hard time collecting. Imagine that. A billion dollars.
Anyway, in Alberta the provincial Court of Appeal recently decided that child support payors who fail to inform their ex-spouses about increases in their incomes shall now be required to make the difference up to child support recipients, even if this amounts to a windfall for the recipient. In other words, if I paid child support of $800.00 per month for five years when I should have been paying $1,000.00 per month, I now owe $200.00 per month for sixty months (or $12,000.00 to those who are still counting) to the recipient. Ouch.
In Ontario, the provincial Court of Appeal has always prevaricated about doing what the Alberta Court of Appeal did. It left the option open, but generally said that support payors did not have to catch up what they should have paid. Because two provincial courts of appeal disagreed with each other, the Supreme Court of Canada agreed to hear the appeal. And that is why Ottawa was full of earnest family lawyers on Valentine's Day.
The Supreme Court of Canada decided to take some time to consider its decision (it almost always does, and for perfectly good reasons I am not going to elaborate upon). I will let you know in due course whether Mr. Hiemstra ends up a happy man or Mrs. Hiemstra ends up a happy woman. Either way, you know the old adage. You can please some of the people some of the time, and other people some of the time, but if you are a lawyer no one you ever meet or speak to is happy.
posted by Rob Stewart | 2:12 PM
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