Do Judges make justice unaffordable or not?

Family Law is a mess. Only the courts do not recognize it.

On Nov 18, Karen SELICK wrote this op-ed piece critical of a recent Supreme Court refusal to hear an appeal of a Ontario Family Court decision that over-rode a pre-nuptial contract because of inaccurate property values.

On Nov 24, John T. SIRTASH, counsel to Bnai B'rith Canada Family Law responded with "Don't blame the judges" - which I took as an odd instance of flattery except he has been a lawyer for 27 years and so is clearly angling for his appointment to the bench.

I fully support Karen's points. It was irrelevant that the husband-to-be misrepresented in good faith the "true value"1 of his assets/property owned before he agreed to marry his wife-to-be (the gold-digger) as she signed a pre-nup disavowing any claim to such assets/property. Further he made it clear that he would not have made a marriage proposal otherwise.

Mr. LeVan was happy to remain in a committed common-law relationship with this women. However in a common-law relationship - unlike formal matrimony2 - she could not have gained any rights to any of his assets/property owned before they began their relationship.

Comments in both are worth reading, especially Karen SELICK's rejoinder to SIRTASH on these points in following the "Comment" section.


Footnotes:
1) Partially due to cost (estimated at $10,000) the husband did not bother to provide an "official" valuation of his personal business interests. Eventually these assets were proven to be worth $5.3 million and so obviously he was a wealthy man. His failure to provide an accurate valuation was construed as a "material" misrepresentation in the pre-nuptial contract. As the final indignity the husband was charged $500,000+ and the wife $244,753 for appraisals of both parties assets.

2) Common Law relationships are governed by Provincial Statutes that intentionally adopt lower social obligations (which itself is a highly debated subject depending on your gender) for the parties involved. A formal marriage must be registered under Federal Statute and holds to established traditions.

Childhood's End - the Decline of the British Family

This 15 year old girl, Scarlett KEELING - precocious by necessity due to her mother's irresponsible parenting - was found murdered on a beach in Goa INDIA on Feb 18, 2008. She has become a poster child of the recognition in England that childhood is under serious siege from a breakdown of the family - never a strong point for the Brits - because of willful state intervention.

Theodore Dalrymple's writes:

Scarlett's mother, Fiona MacKeown, brought 8 of her 9 children on a six-month vacation to India with her boyfriend in November 2007. (The one left behind—her eldest, at 19—was a drug addict.) Her nine children were fathered by 5 different men. She had received $50,000 in welfare benefits a year, and doubtless decided—quite rationally, under the circumstances—that the money would go further, and that life would thus be more agreeable, in Goa than in her native Devon.

Reaching Goa, MacKeown soon decided to travel with seven of her children to Kerala, leaving behind one of them, 15-year-old Scarlett Keeling, to live with a tour guide ten years her elder, whom the mother had known for only a short time. Scarlett reportedly claimed to have had sex with this man only because she needed a roof over her head. According to a witness, she was constantly on drugs; and one night, she went to a bar where she drank a lot and took several different illicit drugs, including LSD, cocaine, and pot. She was seen leaving the bar late, almost certainly intoxicated.

The next morning, Scarlett's body turned up on a beach. At first, the local police maintained that she had drowned while high, but further examination proved that someone had raped and then forcibly drowned her.

Scarlett’s mother, expressed surprise at the level of public vituperation aimed at her and her lifestyle in the aftermath of the murder. She agreed that she and her children lived on welfare, but “not by conscious choice,” and she couldn't see anything wrong with her actions. Apparently neither could many other parenting experts.

Dalrymple goes on to suggest:

This nonjudgmentalism surely helps explain why British youth are among the Western world’s leaders in such indicators of social pathology as teenage pregnancy, violence, criminality, underage drinking, and consumption of illicit drugs. Britain has the third-highest rate of teenage pregnancy in the industrialized world, according to the UNICEF report (only the United States and New Zealand are higher)—a startling case recently made headlines of 16-, 14-, and 12-year-old sisters, all of whom gave birth within a year of one another. British children have the earliest and highest consumption of cocaine of any young people in Europe, are ten times more likely to sniff solvents than are Greek children, and are six to seven times more likely to smoke pot than are Swedish children. Almost a third of British young people aged 11, 13, and 15 say they have been drunk at least twice.

The main consideration inhibiting elite criticism of MacKeown is that passing judgment would call into question the shibboleths of liberal social policy for the last 50 or 60 years—beliefs that give their proponents a strong sense of moral superiority. It would be to entertain the heretical thought that family structure might matter after all, along with such qualities as self-restraint and self-respect; and that welfare dependency is unjust to those who pay for it and disastrous for those who wind up trapped in it.

One day after Scarlett Keeling’s murder, a nine-year-old girl, Shannon Matthews, went missing from her home in Dewsbury, in northern England. Twenty-four days later, after an extensive police search, she was found alive, locked in a drawer under a bed in her stepfather’s uncle’s house. Shannon’s mother, Karen Matthews, 32, was also arrested, for child cruelty, neglect, and obstructing the police by lying during the search for her daughter. Ms Matthews also was a regular recipient of welfare payments of $40,000 a year, and had borne seven children to five different men. She has now became clear that Ms. Matthews engineered a kidnapping plot in order to win a newspaper award.

Here are some other points to consider:

• 4/10 British children are born out of wedlock and the unions of which they are the issue are notoriously unstable.
• Easy divorce means that a quarter of all marriages break up within a decade.
• Britain does have the highest rate of child poverty in the West (except the U.S) defined as the percentage of children in households with an income of less than 50 percent of the median. So after many years of various redistributive measures and billions spent to reduce child poverty - it is, if anything, more widespread.
• The British government thus pursues social welfare policies that encourage the creation of households like the Matthews’, and then via yet more welfare spending, to reduce the harm done to children in them.
• Both women lived free of rent and local taxes and received healthy subsides from the state and boasted three computers and a large plasma-screen television.

A system of perverse incentives in a culture of undiscriminating materialism, where the main freedom is freedom from legal, financial, ethical, or social consequences has led to he state-encouraged breakdown of the family.

[Update: 2009Feb13 Recently, after news of a 13-year-old father there were calls for better sex education.]

Minority Report - *New* Massachusetts Child Support Guidelines

Dr. Ned HOLSTEIN - Executive Director of Massachusetts Fathers and Families (MAFF), was a member of the Massachusetts Child Support Guideline Task Force and put together a dissenting opinion. Background information can be found at www.fathersandfamilies.org

It is his position that Child Support Guidelines should require payments sufficient for both parents to equitably meet the important needs of their children. Above those levels of support, additional, excessive child support orders impair the payor’s parenting and thus have adverse consequences for children that far outweigh the benefits.1

At issue is the negative effects of excessive child support orders. They diminish the standard of living children enjoy in the payor’s2 household. They alienate payors, require them to work excessive hours, and may force them to live far from their children, making parenting time impractical and potentially isolating children from friends and activities during such times. Very excessive child support orders may present payors with the constant threat of incarceration despite the best of intentions.

Here is a summary of key points:

Improvements

• Under federal law, Massachusetts must review its Guidelines not less than every four years, and revise them if it seems appropriate. Here are the new ones effective Jan 1, 2009. They must be next reviewed again by January 1, 2013. Existing orders and judgments less than three years old as of date of these guidelines shall not be modified unless the income of one or both parties changes or new circumstance warrants.3

• Determining the Child Support Guidelines has been given to the Chief Justice for Administration and Management (“CJAM”) Robert A. Mulligan. Over two years ago, Chief Justice Mulligan appointed a Task Force to advise him on the revision. This process has been significantly improved to be more open and transparent as A) The twelve members who advised CJAM are no longer secret and included Dr. Ned HOLSTEIN to represent men and payors views (9 lawyers included 6 women and men until one member retired) and B) 13 public hearings were held across the state, hundreds of non-custodial parents and others testifying. C) In addition to a majority report by the Task Force, a minority report with Dissenting Viewpoints was presented. (www.mass.gov/courts/childsupport)

• Principle 3 which encouraged the courts “To provide the standard of living the child would have enjoyed had the family been intact” was dropped from the 2009 Guidelines. Despite being noble it was rarely achieved in practice without impoverishing the Payor, which is not in a child’s best interest. In the 2009 Guidelines it now reads "to meet the child’s survival needs in the first instance, but to the extent either parent enjoys a higher standard of living, to entitle the child to enjoy that higher standard."
  

• The $20,000 "head start" for custodial parents that disregarded the first $20,000 of income in child support calculations has been abandoned. This provision no longer exists. All income of the custodial parent now counts.

• The automatic 10% increase in the child support order for children age 13 or over has been eliminated.

• In the past it was extremely difficult to get a child support order modified by the court unless one's income varied by at least 20%. Any change in income is now sufficient to qualify one to be heard in court for a modification. [Editor: Obviously the burden of time/cost just to appear in court will disabuse frivolous cases.]
  

• As shared parenting is the best arrangement for children, the Guidelines should adjust child support orders when there is shared parenting. This principle will be adopted in the 2009 Guidelines for cases where parenting is equal or approximately equal.

• In the past, the child care credit was only available to the custodial parent, and the cost of child care could be deducted regardless of the reason for putting the child into care. MAFF won provisions that the deduction for child care expenses may be available to either party, and to qualify, child care must in most cases be for the purpose of gainful employment. [Editor: Quite similar to tax rules in Canada, this means existing child-care and health-care expenses can only be applied against employment income.]

• Under existing Guidelines, whomever pays for Health Insurance recovers half of that cost through an offsetting decrease in their child support order. Now that offset will only be in the range of about 20% to 25%. This will also be the case with child care expenses. [Editor: I like this alot as this is a rough approximation of the net after tax advantage of deducting such health-care expenses BUT more importantly, it introduces a co-sharing of responsibility for these expenses which may mitigates irresponsible "expense downloading".]
  

• A major issue for Payors has been the extreme financial distress that excessive child support orders can create. Under current legislation, if a payor took a second job or made overtime it became counted at the time of a subsequent modification of the child support order and he was no better off. Many payors found themselves unable to work their way out of an arrears situation. This has been relaxed somewhat under the new guidelines to allow a judge to exclude such temporary income if it is unlikely to continue in the future, or consider if the extra work is a requirement of the job, and the evaluate the impact of the overtime on a parenting plan at the time of the initial order. If however a payor or recipient obtains a secondary job or begins to work overtime after a child support order is entered, it shall not be considered in a future support order.
  

No Change

• For the very poorest payors there is no letup. For someone earning only $7,800 per year, already in poverty, must pay $1,638 in child support for one child, pushing him/her close to homelessness. [Editor: In his Minority Report Dr. HOLSTEIN goes into greater details about the negative effects on low income payors. The guidelines simply require desperately poor men to make token payments they cannot afford and that make little difference to the recipient when compared to the level of social assistance received.]

• There is no cap on child support for very wealthy Payors. They may still be paying for “three ponies” for the child by court order.

• The expenses of second families still cannot be used as a reason to decrease an existing child support order, although such expenses still can be used as a defense to a request to increase the child support order. Thus, the well-being of children of second families is often ignored by the Guidelines. A child of a second family is often raised in a household that is quite less well off than the household of the first child, to which child support is being paid.

• Massachusetts remains the only state other than Hawaii that allows child support to age 23. Except where there are circumstances like "special needs" it is discriminatory to insist divorced parents provide for the post-secondary education of their children when intact families do not have that legal duty. The Task Force declined to place "de minimus" rules for college expenses that can be ordered or recommend reasonable limitations on the payments.
  

Steps Backward

• Overall child support levels remain too high. It is clear that Recipients usually have a substantially better standard of living than a Payor unless she/he has little or no earnings of her own. Here are some comparisons:

Table MR1: Low Income Groups - 2009 Guideline Increases
Low Income - A minimum wage payor earns $16,640 annually. If the recipient has no earnings, the proposed child support order will be $4,004. After paying income and payroll taxes, the payor will have $9,978 to live on for the year. At $832 per month rent, the payor will have no money left. The proposed child support order of $4,004 is 13% higher than the $3,546 currently required. (refer to Table MR1: Low Income Groups - 2009 Guideline Increases). Whereas the current guideline order is unpayable, the newly proposed guideline order is still more unpayable.

• The Guidelines simply require poor people to make payments they cannot afford and which make little difference to the recipient relative to the level of public support. Federal data bear this out as about 70% of the total child support arrears nationwide are owed
  by people earning less than $10,000 per year, and 96% is owed by those earning less than $40,000 per year. Child support debt is almost entirely a problem of poverty. Child support orders for the poor should be lowered, not raised.
  

Table MR2: Middle Income Groups - Relative Standards of Living

• Middle-Class - Even these payors will have difficulty remaining active parents to their children under the 2009 Guidelines. In above Table MR2: Middle Income Groups - Relative Standards of Living “Disposable Income” (DI) is the money left after paying Income and payroll taxes, and after paying (or receiving) child support. In the examples above in which the payor and recipient earn equal amounts, the payor will have only about half the disposable income of the recipient after taxes and child support transfers. Even a payor who earns three times as much as the recipient will have less disposable income than the recipient (85%). In addition, the proposed increases will be large - double and triple for many.
  

• Massachusetts is in the paradoxical situation that the 2009 Guidelines have adopted a number of principles and concepts for which MAFF has long fought to achieve, but the actual amounts of child support have made an inequitable situation worse in most cases.

Footnotes:
1) To some extent children of divorce who experience "asymmetric support" (child support that provides children proportional financial benefits without proportional responsibility) are denied important lesson in life that intact families still enjoy - those oldtime virtues of thrift, self-denial and placing needs of the collective family first.

2) Payors in Massachusetts are known as "debtors" in Alberta (and there is something not so subtle behind that).

3) Other relevant supporting information for The Massachusetts Child Support Guidelines can be found here, here, and here .

References:
Massachusetts Child Support Task Force - Majority Report
http://www.mass.gov/courts/childsupport/task-force-report.pdf
Massachusetts Child Support Task Force - Minority Report
http://www.mass.gov/courts/childsupport/minority-report.pdf
*New* 2009 Guidelines
http://www.mass.gov/courts/childsupport/guidelines.pdf
*New* 2009 Guidelines Worksheet
http://www.mass.gov/courts/childsupport/worksheet-child-support-guidelines.pdf
*New* 2009 Guidelines Reference Tables
http://www.mass.gov/courts/childsupport/child-support-guidelines-chart.pdf