Canada’s divorce system discriminates against men

If Christopher Sarlo is right, Canada’s Federal Child Support Guidelines are wrong.

The economics professor at Nipissing University in North Bay, Ont., made an in-depth analysis of the guidelines and found them wanting. A 100-page examination leads him to one conclusion: the guidelines are biased against men and deserve an overhaul.

Fights over money are the primary cause for two-thirds of Canada’s 70,000 divorces each year. And divorcing spouses with children were promised fairness in the Divorce Act, where child support “guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation.”

Sarlo says the guidelines established in 1997 rely on “unrealistic assumptions that make them unfair.” From concept to implementation, he finds “them to be gender-biased. They favour mothers at every turn and are punitive to fathers” and “promote discord and litigation.” He says lawyers win because guidelines make “divorce, in marginal marriages, more attractive for women with children. Neither effect is good for children or for society.”

How did these guidelines come about?

In 1990, the Family Law Committee made up of the federal and provincial justice ministers attempted to find a fair approach to child support. A committee research report in 1992 found that for middle-class Ontario families, the first child in an intact family adds 20 per cent to household costs and the next one 10 per cent. In 1993, Department of Justice consultants showed that for a single parent family, the first child added 25 per cent to costs, the second 13 per cent and the third 15 per cent.

However, Kim Campbell put the department on a feminist track in her time as Justice minister from 1990 to 1993. At a 1991 national symposium she organized, a department document stated, “Even when men are not violent, it should not be assumed that continued contact with the father is positive. The primary custodial parent should decide.”

Another resolution passed stated that the department “would henceforth represent only feminist legal arguments in any future constitutional cases and would consult with feminists on any future appointments to the Judiciary, Administrative, Tribunals, etc.”

Hard as it is to believe, parliamentarians didn’t have the final formula available to them in 1997, when they changed the Divorce Act and made the guidelines law. As it turned out, the technical report for the guidelines implemented assumed that the first child added 40 per cent to household costs and that each additional child added 30 per cent. The only time the 40/30 formula resembled reality or fairness was when two parents had low but matching pre-tax incomes and both remained single after parting.

Department of Justice consultants said public consultations with “social policy advocacy groups” led it to choose the 40/30 formula over 14 other possibilities. Such groups were exclusively feminist and supported a department goal of higher payments. Moms won, dads lost, as proven by a 2004 department report that showed mothers won custody in 90 per cent of court-contested cases.

Contrary to the Divorce Act, the guidelines ignore the actual costs of raising children and the parents’ ability to pay. The only time actual costs are looked at, and with consideration to each parent’s ability to earn, is in relation to expenses for children’s activities. But Sarlo says the non-custodial parent has already covered most, if not all, such expenses because the formula extracts too much in the first place.

On top of this, most government benefits the custodial parents receive for the children are ignored in the calculations. The custodial parent is assumed to bear all of the child costs and any expenses paid by the non-custodial parent are disregarded. This doesn’t match reality.

Sarlo cites an Australian study that showed a non-custodial parent who had a child only one-fifth of the time still ended up paying between 28 per cent and 38 per cent of the annual costs of raising the child. In Canada’s perverse set of rewards, only a completely absent non-custodial parent would avoid these additional expenses, despite already overpaying child support.

This injustice will be difficult to overturn. While women are viewed as victimized minorities, men are not – regardless of how much evidence suggests otherwise.

Former senator Anne Cools, a Pierre Trudeau appointee, was a rare voice criticizing the guidelines until her retirement in 2018.

Self-declared feminist Prime Minister Justin Trudeau won’t change the guidelines and any future Conservative prime minister is unlikely to either, given the response of female voters.

However, Quebec opted out of the federal guidelines and mandated a system that’s more fair and pays less. Any province with sufficient courage could follow suit.

Will any leader put good policy over politics?

Lee Harding is a research fellow for the Frontier Centre for Public Policy.

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