Courts father unfairness
April 30, 2009
The erratic treatment of Rod Refcio in Ontario family court is an extreme but powerful example of disturbing flaws that continue to plague Canada's spousal support system.
Two courts incredulously concluded Refcio's responsibility to his ex-wife extends to her twins; twins who were born well after the marriage ended and who were fathered by another man.
In 2006, Ontario Court Judge Thomas Granger ruled Refcio owed his ex-wife Katia $1,500 per month, for an indefinite period of time. For the payer of spousal support, the length of the order is crucial.
Without an end date, a person's life is on hold indefinitely, making a clean break from a former spouse impossible.
Thankfully a Divisional Court also saw it that way, and finally restored some sanity to the situation last week.However, even that court upheld the amount, but said the payments must have finality, and will come to an end next year.
The problem with both rulings is that two courts now have essentially held Refcio responsible for someone else's children. Refcio's obligation to his former wife, after just two years of marriage, should look more like $180 to $300 a month, not five times that amount. That's the amount he would pay according to federal guidelines, introduced to reform some of the flaws in the system.
The courts have made a mockery of those guidelines, brought in four years ago in an attempt to address shortcomings and make awards more uniform across the country.In determining spousal support, courts should be weighing such factors as the length of marriage, child-rearing responsibilities and the spouse's ability to pay. The fact Katia is raising two children on her own should be irrelevant to spousal support, because she should be receiving child support from the children's father.
It's one thing when a spouse has given up a career, and spends 20 or so years at home, raising children, and finds him or herself untrained and unprepared for the workforce. This situation doesn't even compare. The biggest obstacle to returning to the workforce in these instances is the amount of the support, which acts as a disincentive.
Sadly, there's nothing new about Refcio's Kafkaesque story. It plays out in family court all too often, where men seem to be treated unfairly and women as though they are helpless damsels requiring saving by a judicial patriarchy.
Judges need to be more mindful of the devastating consequences of such irrational rulings, which are akin to a life sentence.
By setting an end date to the payments, the Divisional Court has only partly made things right.
But short of meaningful reform -- and adherence to the guidelines --unfair and irrational spousal support decisions seem unlikely to end.
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