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FAMILY, SOCIAL INEQUALITIES, AND THE PERSUASIVE FORCE OF INTERPERSONAL OBLIGATION(2) |
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FAMILY, SOCIAL INEQUALITIES, AND THE PERSUASIVE FORCE OF INTERPERSONAL OBLIGATION(2)
4. CHILD SUPPORT: RECOGNITION OF THE SOURCES OF INEQUALITY
More contentious that the social basis of key features of the spousal support obligation is the suggestion that the same is true of the child support obligation, as currently recognized in Canadian law. In this section, I discuss three different aspects of the child support obligation: first, the presumptive liability of biological parents; second, the liability of persons who stand in the place of (biological) parents; third, retroactively-effective awards of child support. An examination of these issues suggests that the obligation cannot be understood as grounded in the payor's relationship to or with the recipient child.
In Canada, s.15.1 of the Divorce Act together with the Federal Child Support Guidelines [FN49] set out the guiding principles that underpin the determination of entitlement to, as well as the quantum of a child support award. If the parents never married, child support falls under the jurisdiction of the governing provincial legislation. Under both federal and provincial regimes, biological parents are, at least prima facie, liable to pay child support in an amount directly related to their income. Does this default rule suggest that child support is interpersonal or social in nature? Eekelaar suggests that it is not a purely social obligation. In a comparison with liability owed to victims injured through negligent conduct, Eekelaar reasons:
If we substitute children ... for 'victims', and consider obligations to support them, rather than of 'repairing' a wrong, it may also seem that those obligations need not always depend on fault, or even intention. There does, of course, need to be a rational ground for imposing such responsibilities. Random selection would not do. But there are good reasons to choose a genetic parent ... as the first source of responsibility in these cases rather than, say, a neighbour, or even the community. The parent has brought the child into existence ... The duty is likely to reflect the dispositions of each in most contexts. [FN50]
There are two strands apparent in this reasoning. The first strand is the suggestion that biology is a causative link which, by itself, is sufficient to ground liability. The second strand is exemplified in two subsequent comments, which explain that "[t]he purpose for fixing a relationship between a child and an adult is to provide the child with an identifiable resource for both material and emotional support," [FN51] and that the determination of parental status should be seen "... as an allocation of responsibility designed to protect the interests of society's newest members from the moment of their birth." [FN52]
If the act of procreation could be understood to imply certain obligations, this would suggest an interpersonal basis for the child support obligation. In the tort context, which Eekelaar also discusses, causation plays a significant role in determining liability. In the absence of fault, however, causation is generally insufficient to affix liability. Pockets of strict liability generally focus on the riskiness of the activity, the profit-motivation of the potential tortfeasor, and a policy decision that anyone who chooses to engage in an activity of that nature, must bear the consequences of his or her decision. How are we to understand apparent strict liability in the family context? Is it interpersonal or social at core? The second strand of Eekelaar's reasoning suggests an answer. The focus on the child and the child's needs and interests suggests a social basis. The act of procreation provides us with a reason to prefer to hold the procreator liable rather than another, but this does not mean that it justifies the procreator's liability, all things being equal.
In the case of the social parent held liable to pay child support, explored in more detail below, liability is based in the establishment of a relationship through parenting. The recognition that obligation is generated through interaction helps explain the recent decision of the Alberta Court of Appeal in Doe v. Alberta. [FN53] This case addressed the legal status of pre-parenting contracts. The female in a cohabiting relationship wanted to have a child, but the male did not. They both wanted their relationship to continue. She conceived through artificial insemination from an anonymous donor, and the child was born into their household. The couple then sought to enter into a legally binding agreement that the male partner would acquire neither legal rights nor legal obligations in respect of the child.
The lower court concluded that, while contractual intent may be relevant to the issue of liability, it was not determinative. The Court of Appeal agreed, and rejected the couple's contention that the express statement of an intention not to take on a parenting role was determinative. Speaking for the Court, Berger J.A. reasoned:
The "settled intention" to remain in a close, albeit unmarried, relationship thrust John Doe, from a practical and realistic point of view, into the role of parent to this child. Can it seriously be contended that he will ignore the child when it cries? When it needs to be fed? When it stumbles? When the soother needs to be replaced? When the diaper needs to be changed?
In my opinion, a relationship of interdependence with the mother of the child in the same household, of itself, will likely create a relationship of interdependence of some permanence, vis-à-vis the child. John Doe's subjective intent not to assume a parental role will inevitably yield to the needs (and not merely the physical needs) of the child in the same household. [FN54]
The Court here emphasized obligations acquired through conduct over time. The child's needs were thought best met by recognizing those connections and ties generated by such conduct.
If it is inappropriate to assign parental rights and responsibilities at the moment of birth in the Doe context, why is it more appropriate to do so when the potential payor happens to be genetically connected to the child? The genetic tie does not determine the nature of the relationship that will endure between the adult and child, but merely suggests a likely outcome. One might reply that the genetic tie serves as a proxy for investigation into the nature and quality of any particular parent-child relationship, hence in fact a proxy for an interpersonal basis. If that were the case, however, demonstration of lack of quality relationship despite biological connection ought to avoid the support obligation. It does not, save in exceptional circumstances. [FN55] In Boca v. Mendel, [FN56] for example, a child support obligation was imposed upon a biological father in the following circumstances: first, the mother had been taking birth control pills to prevent conception, and the court found that the father was no doubt relying on this; second, he had not wanted to have the child, and had urged the mother to have an abortion; third, the mother had promised him that she would not seek any support from him. [FN57]
I suggest, therefore, that the liability of genetic parents who have not developed any relationship with the child is a social exception to the general principle of the interpersonal liability of social parents to pay child support. This exception is legally recognized and enforced for *78 the reasons Eekelaar explained. In addition to this socially-based exception, I suggest that the interpersonal core of child support has been expanded in ways that suggest more of a social basis. The usual instance of social parent liability is that of the man who married a women, who brought into the relationship a child from a previous relationship. When they separate or divorce, the man often owes a child support obligation in respect of this child. In the case of divorce, this rule is found in s. 2(2) of the Divorce Act, which ensures that a child support obligation may attach to those who stood "in the place of a parent" to their former spouse's child from a previous marriage or other relationship.
There are two considerations in relation to the obligation imposed upon those who stand "in the place of a parent" that indicate the obligation may be less interpersonal and more social in nature. First, quantification of the support obligation owed by an individual who stands "in the place of a parent" may lead to a different outcome than if that individual were the biological parent. Section 5 of the Child Support Guidelines provides that the court is to award "such amount as the court considers appropriate," having regard to the Guidelines amount and any other (biological) parent's obligation to support the child.
Second, an examination of the Supreme Court of Canada's leading decision in Chartier v. Chartier [FN58] reveals the policy basis of the support obligation imposed upon persons who stand "in the place of a parent." Speaking for the Court, Bastarache J. proposed that:
Whether a person stands in the place of a parent must take into account all factors relevant to that determination, viewed objectively. What must be determined is the nature of the relationship. ... The Court must determine the nature of the relationship by looking at a number of factors, among which is intention. Intention will not only be expressed formally. The court must also infer intention from actions, and take into consideration that even expressed intentions may sometimes change. [FN59]
Difficulties with this approach, however, indicate that one should not lightly infer that Chartier's relationship-based test for liability means the child support obligation is understood as an interpersonal obligation.
The "objective" nature of the analysis is not fatal to its interpersonal characterization since interpersonal obligations can be based in relationships that we have non-instrumental reason to value, even if we do not value them subjectively. The real difficulty lies in the fact that the court grounds this objective analysis in the "best interests" of the child. Mr Justice Bastarache reasoned that the proper approach "focus[es] on what is in the best interests of the children of the marriage, not on biological parenthood or legal status of children." [FN60] Further on in his judgment, he elaborated on what the application of the lens of "best interests" would require: "The interpretation that will best serve children is one that recognizes that when people act as parents toward them, the children can count on that relationship continuing and that these persons will continue to act as parents toward them." [FN61]
It is clear that it is important for children to maintain meaningful relationships with adults who have had a significant positive role to play in their lives, including step-parents. What is less clear is the justification for relying upon the significance of this emotional tie to underpin recognition of a financial tie between adult and child. [FN62] The "best interests" justification grounds the obligation in a relationship that the payor adult should have reason to value instrumentally (because of the benefits to the child of this relationship). Yet, this justification simultaneously denies that, without this "interpretation," [FN63] the interactions between that adult and the child would have been sufficient to ground interpersonal obligation. The child support liability of those who "stand in the place of a parent" is thus based in a social obligation, whose financial performance has been privatized to proximate individual citizens with the aim of reinforcing meaningful emotional relationships in the child's life.
Liability for retroactively-effective awards of child support is the third aspect of the support obligation that I suggest reveals that the current conception of child support is more socially than interpersonally based. In Canadian law, the amount of child support payable is, subject to exceptions, linked directly to income; as the payor's income increases, so does the amount payable. It is the direct link to income that supports the view that child support is interpersonal in nature. Any policy-based restrictions on this linkage suggest a different basis.
Under the current law, increase in income is not tracked automatically; rather, is for the recipient (eg. the former wife) to request copies of the payor's tax returns and to apply for court-ordered variation should it appear warranted. The difficulty arises when there has been a delay between the payor's increased income and the recipient's application for variation: in what circumstances is it justifiable to order support payments to address the increase prior to application, ie. to make retroactive awards?
Inconsistent positions adopted across the provinces led to this matter coming before the Supreme Court of Canada in 2006 in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra. [FN64] In this case, the Court heard four appeals together that raised the issue of retroactive recognition of the child support obligation. While each appeal contained unique factual elements, all four were unified by the fact that, prior to the recipient's application for a retroactive award, each payor had been fulfilling the full extent of any court-ordered obligation to support. The majority and concurring judgments expressed agreement on the fundamental nature of the support obligation, but disagreed as regards the justifiable limits on its enforcement.
Speaking for the majority, Bastarache J. described the child support obligation as one that "... exists prior to the enactment of [s. 26.1(2) of the Divorce Act] itself," [FN65] an obligation that "... is not said to be dependent on a court order or any other kind of action by the recipient parent." [FN66] The support obligation is thus "... a free-standing obligation for parents to support their children commensurate with their income." [FN67] This conception of child support envisages a fundamentally interpersonal obligation. The relationship between the payor and the child gave rise to an obligation independent of any statute, and the changes in the payor's circumstances affect the support obligation regardless when the recipient applies for increased support.
The limitations on enforcement outlined by the majority in the Retroactive Child Support decision, however, call into question the Court's commitment to an interpersonal model of child support. Mr Justice Bastarache set out policy considerations that the majority considers affect the decision whether to enforce any support obligation. [FN68] These policies are based on the desire to "balance" the interests of the parties; "unlike prospective awards," the majority contends, "retroactive awards can impair the delicate balance between certainty and fairness in this area of the law." [FN69] Two of these policies are important for present purposes. First, Bastarache J. suggested a three-year limit on retroactive awards, stating that "it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent." [FN70] Second, the conduct of both the payor and recipient parent may influence or determine whether the court makes a retroactive award. [FN71] The court must ask whether the recipient parent's delay in applying to the court was reasonable, and whether any blameworthy conduct by the payor led to inadequate support being paid and received.
These limitations can be neither justified nor explained by an interpersonal conception of child support. This result follows from the majority's own construction of the nature of the support obligation. If support is the child's right, and the content of the obligation imposed in order to satisfy that right is linked directly to increase in income, neither limitation can be supported. How can one justify or explain limiting the enforcement of the child's right to support because the parent who receives the funds on her behalf delays in enforcing that right? Whether one adopts a will theory or an interest approach to rights, neither of these leading rights theories, as applied to children's rights, understands a child's rights as inherently subject to limitation in either existence or enforceability on the grounds of third party conduct.
In the concurring judgment, which dissents on this particular point, Abella J. noted the difficulty with the majority's analysis, reasoning that "[b]ecause the child's right to support varies with the change [in income], it cannot, therefore, be contingent on whether the recipient parent had made an application on the child's behalf or given notice of an intention to do so." [FN72] Madam Justice Abella criticized the majority's approach of engaging in a balancing exercise between the child's entitlement and the payor's interest in certainty. [FN73] Yet, Abella J. proceeded to leave open a role for judicial discretion; "[a] presumptive date of entitlement to child support," she reasoned, "does not ... eliminate the role of judicial discretion." [FN74] This discretion extends to determining whether the start date is rebutted, as well as the quantum and structure of any payments. [FN75] While the concurring judgment offers a reduced class of limitations to the child's entitlement, Abella J's inclusion of policy limitations poses the same justificatory difficulty.
We can make sense of these policy-based limitations if we recognize that the support obligation is not, in fact, interpersonal at core. The Court's intention that there be a measure of certainty for the payor, as well as that the obligation be responsive to the recipient parent's conduct, reveals broader concerns than those related to the connection between the child and the payor. If the obligation were truly interpersonal, only matters based in that relationship could limit any presumptive obligation. In linking the support obligation directly to income, the Court acted on the presumption that, if the parents had remained together, their child would have benefited to the full extent from both parties' progressive increase in income. Thus when the parties separate, it is for the court to ensure that the child benefits to the identical extent from both parents, to avoid the social inequality faced by children raised in single-parent families. This is why, if the father is paying less child support than the full table amount permitted by his income, he is vulnerable to a retroactive support order, despite having determined his current payment amounts through agreement with his spouse or former spouse.
This model of parenting takes no account of either the fact that not all parents lavish money on their children in this way, or that there comes a point at which all of a child's needs and wants are met so that increased financial support serves no ameliorative end. As a result, the social obligation conception of child support also reveals itself as flawed. If one of the underlying bases for the support obligation is a child's equality right, what is the justification for seeking to put the child of separated wealthy parents in a similar position to the child in an intact wealthy family, when the child born to impoverished parents will be raised in poverty if the parents remain together, and extreme poverty if the parents separate?
In this section, I have discussed three key elements of the child support obligation. Each aspect -- the presumption of liability for biological parents; the liability of persons who stand "in the place of a parent"; retroactively-effective child support awards -- evidences that the support obligation is more firmly grounded in policy concerns and less in the parent-child relationship than it might initially appear. In the following sections, I discuss the interplay of social inequality with these familial obligations, and then proceed to suggest how we might best address the confusion of interpersonal and social obligations in family law.
5. THE CONFUSION OF INTERPERSONAL AND SOCIAL OBLIGATIONS AS A RESPONSE TO SOCIAL INEQUALITY
Neither the spousal nor the child support obligation has accurately captured the interpersonal basis of the rights and obligations that exist between the parties. Toward the start of this article, I argued that an interpersonal obligation is grounded in the parties' interactions, whether this a single event or a series of inextricably intertwined events. Spousal and child support arise through the latter type of interaction, and are therefore best understood as grounded in the relationship as a whole. Being interpersonal in nature means that, not only is the obligation justified by reference to the nature of the parties' relationship, but it is also limited by it. Yet, in the spousal support context, it is clear that need that exceeds that which was created by the parties' interactions may form the basis of a support award. Likewise, in the child support context, biology is the starting-point for liability and remains unaffected by the quality of the adult's interactions with the child. Carbone captures the essence of this approach to child support in modern US law:
In the new era, women may engage in sex for the same reasons as men -- with no promise to marry needed or implied. The state, however, still demands a guarantor. The obligation not to impose the consequences of the sexual act on the public fisc is, in these cases, subject only to the father's ability to pay, and the state's ability to make him. [FN76]
The notion of interpersonal obligation has been distorted in both contexts in an attempt to respond to social inequality. More concerning than this distortion, however, is the fact that neither of these support obligations manages to successfully respond to social inequality anyway. Separated and divorced women and children raised in single-parent families represent a disproportionate percentage of those Canadians living below the low income cutoff. Focus on expanding and strengthening these interpersonal obligations has distracted us from the urgent need to address the root causes of the inequality that these obligations have been adapted to address. Commenting on the state of law in 1990, Margrit Eichler argued that
In principle, family law is incapable of solving the problems of poverty of women and children. If, then, further reform of the family law is proposed as a solution to the problem of female and child poverty, we must ask ourselves what this avoids doing: namely asking for a comprehensive reform of the income security system, and of the overall economic structure such that poverty is general (whether subsequent to a divorce or not) is eradicated. [FN77]
More recently, Patrick Macklem analysed the effect of Canadian court decisions in relation to constitutional challenges that involved the social right to social security; his analysis parallels the difficulties created by legislative and judicial distortion of interpersonal obligations to address social inequality. He commented:
The [Supreme] Court's rulings ... frame democratic contestation over social protection on the political plane in terms that separate state power from social and economic inequalities produced by market ordering, obscuring the fact that markets are in fact instruments of state policy. They reinforce a politics of social protection that sidelines debate over the extent to which the state is obligated to take positive measures to ameliorate social and economic disadvantage that its regulatory choices have produced. [FN78]
A recent Alberta Court of Appeal decision supports Macklem's analysis. In Alberta (Minister of Human Resources and Employment) v. Alberta (Human Rights, Citizenship and Multiculturalism Commission), [FN79] the court was asked to determine whether it was discriminatory to deny an unemployed individual a shelter allowance because he lived with his mother. Section 14(4) of the Social Allowance Regulation [FN80] provided that no shelter allowance was payable if the applicant was living in shared premises with another related to her by blood, adoption, marriage or through an adult interdependent relationship, which she neither owned herself nor rented from a third party. It was accepted as a matter of fact that Mr Weller, the applicant, paid $250 per month to his mother as rent. The shelter allowance in question was a maximum of $168 per month. Otherwise, the applicant received $229 a month for food and other necessaries, plus $5 a month for health benefits.
The Human Rights Panel held that the enforcement of this provision against the unemployed individual in this case was discriminatory on the ground that "[r]ent is rent no matter who it is paid to ..." [FN81] The Alberta Court of Queen's Bench upheld the decision of the court below. [FN82] The Alberta Court of Appeal then reversed this decision, and the Supreme Court of Canada dismissed the application for leave to appeal. [FN83] The Court of Appeal considered the purpose of the Regulation, and concluded that
[T]he distinction for payment of shelter allowance is not focused on a personal characteristic of the claimant. It is based on the circumstances of the living arrangement. Family status is relevant only because it is the basis of the underlying assumption that rent for shared accommodation is not ordinarily *84 expected to be paid by an adult child without the means to do so. Given that the relationship is non arms length and is normally associated with love and affection, the proposition is based on common sense and experience. [FN84]
The Court's finding of non-discrimination was grounded in the combination of this understanding of the assumptions underpinning the Regulation with the view that "[t]he legislator is entitled to proceed on informed general assumptions provided that these assumptions are not based on arbitrary and demeaning stereotypes." [FN85] It was not necessary, the Court asserted, that these assumptions be supported by statistical or other "hard" evidence before they could be relied upon by the judiciary. [FN86]
The Alberta Court of Appeal's reasoning resonates with Eichler's and Macklem's observations. The Court focuses on entitlement to the shelter allowance in the context of adults living with family without questioning why such adults would need to live with family. In 2006, the year in which the Court gave its decision, the average rent for a bachelor-sized apartment was $561, and for a one-bedroom apartment $666. In order for a single individual to be able to afford to pay that rent, their minimum full-time income would need to be $10.79 an hour for the bachelor-sized, and $12.81 for the one-bedroom apartment. [FN87] The actual minimum wage in Edmonton was $7.00. The applicant in Weller was in receipt of $234 a month, which averages at approximately $1.67 an hour. [FN88] The amount the applicant received as benefits left him with little choice than to depend on the kindness of family. Yet, when he did so, he was rendered ineligible for a shelter allowance.
The shelter allowance was plainly inadequate, yet the Court did not address that. Neither did the Court consider that the effect of the inadequacy of the allowance was to force responsible family to ensure that their relatives were not left without a roof over their heads, while at the same time the governing Regulation denied any indirect financial relief [FN89] to family that fulfilled that implicit obligation. The Court did not recognize the link between the amount of the allowance and the role of family. Once one considers the larger social and economic circumstances, the Court's conclusion that it was simply the living circumstances and not family status that led to the denial of a shelter allowance lacks credibility; it was the applicant's dependence upon insufficient social assistance that made the distinction based on family status possible.
In both the family law and social welfare law spheres, the legislature and the courts have sidelined the necessary debate about the role of the markets in perpetuating the impoverishment of citizens, who are most often women and children. The judicial response to social inequality in any situation in which familial relationships form part of the background evidences a broader discomfort over the proper framework of analysis for social welfare issues.
6 CONCLUSION: HOW TO RESPOND TO THE CONFUSION OF INTERPERSONAL ANDSOCIAL OBLIGATIONS
What is the alternative if we accept that it is unjustifiable to use interpersonal obligation as a tool for redressing social inequality? There are essentially two choices. One response would be to simply use our renewed understanding of the nature of interpersonal obligations to restrict the spousal and child support obligations. This alternative leads to unacceptable consequences: rather than some social inequality being alleviated through the theoretically questionable molding of interpersonal obligation, this alternative offers no redress for any social inequality. Poverty remains feminized and disproportionately borne by children raised in single-parent families.
In addition, one might contend that such a response is unnecessary; since public policy has often helped shape particular private law obligations and their enforcement, one might argue that the spousal and child support obligations as currently recognized by the courts, should continue to be enforced as interpersonal despite being informed by policy.
In an examination of the concepts used to underpin the historical development of Anglo-American private law, Waddams concluded that "... [s]everal concepts, including property, contract, wrongdoing, and unjust enrichment, though distinct, and each of fundamental importance, have, in relation to many legal issues, interacted with each other and with public policy." [FN90] As such, "[i]t is not so much that various alternative approaches are permissible (as though in some spirit of agnostic toleration) as that various complementary approaches are necessary (to the understanding of a complex phenomenon." [FN91] While this may be true as a matter of the history of legal recognition and enforcement, however, this merely explains and does not justify the use of policy to expand both recognition and enforcement of otherwise interpersonal familial obligations. My key concern in this article is to highlight the divide between obligations as they currently operate in law and the extent to which that operation can be justified.
The second, and alternative, possible response to recognition of the improper use of interpersonal obligation as a remedy for social inequality would be to embrace the social nature of these obligations. This would lead to a reinvigoration of the debate over justification for enforcing specifically social obligations against private citizens in favour of other private citizens. We might develop an argument that bases certain of our rights and obligations in a shared community understanding of our obligations, in social norms. As Eekelaar argues, "[d]ependency ... may arise from the operation of social norms as much as from brute fact." [FN92] Social practice in this sense determines social obligations, which in turn become legally enforceable in the *86 event that the obligees deviate from the default position of an intact family. On this account, our felt obligations toward loved ones, whether spouses or children, might be understood to form the basis of our legal rights and obligations that arise when, in a particular relationship, our sense of duty falls away.
The difficulty with this second response, however, lies in the essence of a social obligation. As discussed above, [FN93] the state is the primary addressee of social obligations, and private citizens become obligated to other individuals through back-up obligations triggered by the inadequacy of the state's response. It is the justification for these back-up obligations that we currently lack. Much of the judicial reference to familial obligations includes arguments that explain why we should prefer to impose the obligation on a particular private citizen rather than another, or society at large. But these are not the type of arguments we need if we want to underpin the social obligations of citizens toward other citizens. What we need, by contrast, are arguments that give us good reason to recognize and enforce the child support obligation against a particular adult all things being equal. Distributive concerns may provide good reason for shifting a financial burden from the immediate sufferer, but we then need additional good reason to localize the distributive question to one or more specific other citizens.
While there are various difficulties with an argument that embraces the social nature of certain of our obligations, this response avoids the unhappy conclusion that the state alone is responsible, when the state is not going to pay. A true understanding of the social basis, then, has the potential to address the problem we have been trying to address throughout, only indirectly, namely social inequality.
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[FN49]. P.C. 1997-469 [Child Support Guidelines]. These federal Guidelines apply if the parents were married and are now divorcing. If the parents were never married, or married and are now separated but not divorcing, however, provincial Guidelines apply. For the purpose of my analysis, federal and provincial Guidelines can be treated together.
[FN50]. Eekelaar, 2006: 114.
[FN51]. Eekelaar, 2006: 114.
[FN52]. Eekelaar, 2006: 114-15.
[FN53]. 2007 ABCA 50, leave to appeal to SCC dismissed, (July 12, 2007) (Alta.) (31986) [Doe].
[FN54]. Ibid., Berger J.A. at paras.22-23.
[FN55]. There is some authority for the proposition that a child who has been instrumental in severing the parent-child relationship may be disentitled to continue to benefit from child support. However, these cases tend to be concerned with children over the age of majority, who are seeking support to pursue post-secondary education. Further, in many cases in which unilateral severance of the parent-child relationship by the child was considered relevant to the existence of a support obligation, it was only one of several factors that supported reduction or termination of the obligation. See e.g. Wahl v. Wahl, [2000] A.J. No. 29 (Q.B.); Darlington v. Darlington, [1997] B.C.J. No. 2534 (C.A.). In addition, the discussion of Boca, infra note 47 and accompanying text, illustrates, there is also authority for the proposition that the quality of the parent-child relationship is irrelevant, regardless of the child's role in causing its deterioration, and to the effect to that the quality of the relationship may be relevant only as one of several factors that support reduction or termination of the support obligation. See e.g. Cox v. Cox, [1999] N.J. No. 242 (U.F.C.); Necemer v. Necemer, [1999] B.C.J. No. 3023 (S.C.).
[FN56]. [1989] O.J. No. 930 (Ont.Prov. Ct. (Fam. Div.)) [Boca]. See also Buschow v. Jors, [1994] S.J. No. 136 (Sask. Q.B.); Parris v. Wright, [1990] N.S.J. No. 4 (Fam. Ct.); New Brunswick (Minister of Income Assistance) v. H. (S.) (1996), 20 R.F.L. (4th) 312 (NBCA).
[FN57]. The mother did not simply change her mind about support. She received temporary welfare assistance to enable her to go back to school, and social services at that time required her to seek child support from the father.
[FN58]. Chartier v. Chartier, [1999] 1 S.C.R. 242 [Chartier].
[FN59]. Chartier, ibid., Bastarache J. at para.39.
[FN60]. Chartier, ibid., Bastarache J. at para.21.
[FN61]. Chartier, ibid., Bastarache J. at para.32.
[FN62]. Herring, for example, suggests that better enforcement of child support might lead to increased contact between the payor and the children in respect of whom the payments are being made. See Herring, 2003, 110-12. Even if one accepts that this is a policy the law should adopt, enforcement of a pre- existing obligation and the initial recognition of a support obligation are two very different matters.
[FN63]. Supra note 54 and accompanying text.
[FN64]. 2006 SCC 37, rev'g (D.B.S.) 2005 ABCA 2 and (L.J.W.) 2005 ABCA 3, aff'g (Henry) 2005 ABCA 5 and (Hiemstra) 2005 ABCA 16 ["Retroactive Child Support" case].
[FN65]. Retroactive Child Support case, ibid., Bastarache J. at para.48.
[FN66]. Ibid.
[FN67]. Ibid. Abella J agreed with this characterization: para.157.
[FN68]. Retroactive Child Support case, ibid., Bastarache J. at para.94 et seq.
[FN69]. Retroactive Child Support case, ibid., Bastarache J. at para.96.
[FN70]. Retroactive Child Support case, ibid., Bastarache J. at para.123.
[FN71]. Retroactive Child Support case, ibid., Bastarache J. at paras.100, 105.
[FN72]. Retroactive Child Support case, ibid., Abella J. at para.162.
[FN73]. Retroactive Child Support case, ibid., Abella J. at para.165.
[FN74]. Retroactive Child Support case, ibid., Abella J. at para.171.
[FN75]. Retroactive Child Support case, ibid.,
[FN76]. Carbone, 2000: 162.
[FN77]. Eichler, 1990-91: 83 [emphasis in original].
[FN78]. Macklem, 2006: 30.
[FN79]. 2006 ABCA 235, rev'g 2005 ABQB [Weller].
[FN80]. AR 213/93, enabled under the Social Development Act, R.S.A. 2000, c. S-12 (repealed).
[FN81]. ABCA, Weller, supra note 75, the Court at para.10.
[FN82]. ABQB, Weller, supra note 75.
[FN83]. Weller, leave to appeal to SCC dismissed, [2006] SCCA No. 396.
[FN84]. ABCA, Weller, supra note 75, the Court at para.56. Similar sentiments are expressed by the Court at para.57: "... [T]he assumption that no legally enforceable rent obligation generally arises in situations such as encountered in this case is reasonable on its face."
[FN85]. ABCA, Weller, supra note 75, the Court at para.35.
[FN86]. ABCA, Weller, supra note 75, the Court at para.33.
[FN87]. Canadian Housing and Renewal Association, 2007.
[FN88]. This calculation is based on a 35-hour work week, and 4 weeks of work per month. Obviously, this is an over-simplified calculation, but the inadequacy of the social security payments is clear.
[FN89]. Namely, through the payment of the shelter allowance as rent.
[FN90]. Waddams, 2003: 232.
[FN91]. Waddams, 2003: 232 [emphasis in original].
[FN92]. Eekelaar, 1991: 351.
[FN93]. See sec. 2.2.
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