Law Times

Law Times • SePtember 1, 2014 Page 13 www.lawtimesnews.com Support guidelines bringing lots o f work to family lawyers By arshy mann Law Times hile the introduc- tion of the fed- eral child support guidelines in 1997 revolutionized the work of fam- ily lawyers, a new report by the Fraser Institute has cast a critical eye on their broader impact on the public. Nipissing University politi- cal science and economics Prof. Christopher Sarlo's assessment of the federal child support guidelines argues the singu- lar focus on the income of the non-custodial parent leads to increasing litigation. "Litigation related to fam- ily matters is surely one of the most stressful, time-wasting, and money consuming exercises in futility," he wrote in his report last month. "If they have the means, both parties will come armed with lawyers." So does that mean family law boutiques have thrived since the guidelines came into eff ect? Gary Joseph, managing part- ner of MacDonald & Partners LLP, says the guidelines have in fact translated into more busi- ness for his fi rm. "We're busier than ever," he says. But accord- ing to Joseph, that's primarily because his fi rm focuses on high net-worth individuals. "For the guy who works at hydro and makes $60,000 a year and his wife works somewhere else and makes $40,000 a year, the guidelines are terrifi c; they're a cost-saving mechanism, with- out a doubt," says Joseph. "But for self-employed and high net- worth individuals, the guide- lines have defi nitely increased the cost of family law." George Karahotzitis, a part- ner in omson Rogers' family law practice, says the guidelines provide for more discretion when it comes to high net-worth individuals, something that can lead to more litigation in those cases. "Discretion is necessary, but because there is discretion on the application, that can lead to debate which may lead to confl ict," he says. John-Paul Boyd, executive director of the Canadian Re- search Institute for Law and the Family, says the guidelines are very benefi cial for the major- ity of people but notes they also have a dark side. "When every- thing boils down to income, in- come is what you end up fi ght- ing about," he says. "So although much has been saved in terms of the money people spend on lawyers by converting to a table- based format, which is arbitrary but fi xed and determinable, it is possible for even more money to be spent by lawyers arguing about income." In his report, Sarlo also argued the guidelines are fundamentally unjust. " e guidelines claim to be based on studies of the actual expenditures on children and claim to be equitable to both the paying and recipient parents," wrote Sarlo. "A close examination of the guidelines, and the formula used to create the child support payments, demonstrates that nei- ther claim is true." As a result, Sarlo suggested, the guidelines ignore principles set out in the Divorce Act, which is the governing federal legis- lation. " is, of course, raises issues of the appropriateness and, perhaps, the legality of the guidelines," he wrote. e specifi c section of the Di- vorce Act Sarlo said the guide- lines confl ict with is the second principle. " e guidelines shall be based on the principle that spouses have a joint fi nancial obligation to maintain the chil- dren of the marriage in accor- dance with their relative abilities to contribute to the performance of that obligation," it reads. e report sets out a number of circumstances that the guide- lines don't take into account when determining child support pay- ments. ey include government benefi ts available to custodial parents, diff ering costs related to the children at various ages, and the fact the guidelines ignore any costs incurred by a non-custodial parent who has less than 40 per cent of the time with a child. " e guideline table amounts are based on a formula, which uses an arbitrary equivalence scale and a number of unrealis- tic assumptions that make them unfair," wrote Sarlo. Boyd, however, thinks many of the issues the report suggest- ed are problems with the current system are actually features. "I think they're raising points that are legitimately raised because they're right — the guidelines don't take into account non-cus- todial parents' costs and they're right that they don't consider the particular circumstances of each and every child," says Boyd. "But the point of the introduction of that arbitrary exercise was to simplify everything." According to Boyd, prior to the guidelines, child support proceedings involved lengthy battles over exactly how much the custodial parent should re- ceive. "What lawyers found is that an enormous amount of money was being spent on this kind of budgetary analysis," he says. Also, parties would spend a lot of eff ort scrutinizing the spending habits of the custo- dial parent and the suitability of certain expenses. Instead, by focusing on only the income of the non-custodial parent under the guidelines, parties can avoid a lot of that type of litigation and excessive intrusion. "It's trying to simplify things down to the very nub of the issue, which is that the payor has an obligation to sup- port his children," he says. e advantages and disad- vantages of the guidelines not- withstanding, there's no doubt they've had a big impact on the work of family lawyers. While Joseph says the child support guidelines have created more work for family lawyers work- ing with high net-worth indi- viduals, large law fi rms that have largely stayed out of the family law realm have missed out. But Joseph expects that to change as large fi rms come back to the family law fi eld. " at's a trend that I think will be reversed. I think they're going to see how valuable we are to a fi rm," he says. Joseph says that because of the volume of clients family lawyers bring in, having a fam- ily practice group within a larger fi rm is a good way to origi- nate new business. "We're like a Walmart in terms of the number of people that come through our door," he says. "One of my best friends is with a big fi rm and he has fi ve clients. I have fi ve new clients every other week." Joseph notes family litigants also run companies, buy houses and other property, and have estate issues. At the moment, many of the boutiques, small fi rms, and sole practitioners that dominate the family law fi eld will refer that work out. A large fi rm that incorporates fam- ily lawyers would have an edge over their competitors, he says, "because we as family lawyers generate an enormous amount of spinoff work." LT BRIEF: FAMILY LAW BOUTIQUES YOUR ADVANTAGE, in and out of the courtroom. Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. TF: 1.888.223.0448 T: 416.868.3100 W: www.thomsonrogers.com TRUST (YHU\WLPH\RXUHIHUDFOLHQWWRRXUßUP you're putting your reputation on the line. It's all about trust well placed. Proud Member ALEKS MLADENOVIC | RICHARD HALPERN | SLOAN MANDEL Untitled-9 1 14-08-26 4:32 PM A DAILY BLOG OF CANADIAN LEGAL NEWS FEEDS LEGAL POWERED BY CANADIANLAWYERMAG.COM/LEGALFEEDS W

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