The formula from hell, May 13, 2002 By Candis McLean

A divorced dad uncovers a deliberate policy to drive separated parents farther apart

Toronto geologist Alar Soever was going through a divorce early in 1996 when he first encountered the Federal Child Support Guidelines which recommend amounts non-custodial parents should pay for child support. "My lawyer couldn't tell me how the figures were arrived at," he recalls, "so I contacted the federal Department of Justice which said that the document to explain the formula would be published in the fall of 1996. That made sense, since Parliament was going to debate the guidelines that winter." Mr. Soever then telephoned every two months, but the guidelines were never "ready."

The controversial guidelines were passed by Parliament in February 1997 and came into effect two months later.[1] The research report (CSR-1997-IE) which explained the formula was not released until 14 months after Parliament's decision.

Mr. Soever is a methodical man, and was intrigued by a number of issues, including how regulations affecting the lives of hundreds of thousands of divorcing parents could have passed without any public documentation as to how the guideline amounts were calculated. To find out, he undertook four years of investigations. On April 5 he released his findings to an Ottawa forum, Toward Shared Parenting, co-sponsored by the Family Forum of Ottawa and the National Alliance Advocating for the Needs of Children and Parents. His 31-page document was titled "The Federal Child Support Guidelines: A Breakdown of Democratic Process and the Canadian Legal system." According to B.C. resident Ross Bailey who attended the meeting, "Alar's paper has the whole non-custodial and grandparenting community across the country buzzing because they knew something was wrong with the guideline formula, but needed someone to tell them how it was wrong."

That community may buzz even louder with the news that last week, among materials obtained by Liberal MP Roger Gallaway through the Freedom of Information Act, Mr. Soever finally found an explanation of the guidelines which had been prepared in the fall of 1996. He believes the explanation was repressed because it gives examples of the financial consequences of the guidelines, "transparently indicating how unfair the formula is" (see story, p. 54). One of those to whom he revealed the document compared the situation to the "tainted-blood scandal," in which the government's suppression of information caused irreparable damage; "By not telling the judiciary what the formulas really meant, they caused serious harm which has included driving people into bankruptcy and even suicide."

As a geologist, Mr. Soever examines mineral reserves to separate the truth from self-serving hype, checking assumptions, formulas and calculations. "When I examined the guidelines," he says, "I realized it was like the Bre-X scandal, complete with flawed assumptions and skewed calculations. It was driven by psychology, with everyone thinking it was child support so it must be good, but it's actually promoting custody battles and hurting children. The bottom line? No one appeared to have done the due diligence on the underlying formula." He ended with a stunning question: "How is it that in a democracy we can have guidelines which contravene the Divorce Act, are based on a largely unknown, admittedly deficient formula, and are derived from undisclosed policy decisions that promote the loss of substantial contact with one parent?"

What Mr. Soever learned is that the guidelines as implemented contain not only child support but spousal support, (which contravenes the Divorce Act), and overestimate expenditures on children for the custodial parent while underestimating them for non-custodial parents. That conclusion is also reached by University of Calgary sociology Ph.D. student Paul Millar (http://www.canadianfamilyresearch.org), in research to be published in the June edition of the peer-reviewed academic journal, the Canadian Journal of Law and Society.

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The formula used to generate the guidelines, Mr. Soever learned, makes two key assumption in all cases, whether valid or not:

1.  The paying parent is always assumed to have the expenses of a single adult (i.e., no parenting expenses); and

2.  The incomes of the paying and receiving parent are assumed to be equivalent.

In those cases where these assumptions match reality, the model does meet its objectives: equal standards of living and sharing of expenses between the two parents. In practice, however, the amount of time that the non-custodial parent has custody of the child can range up to 40% (when over 40%, the guidelines do not apply). Among parents with average incomes, if the paying parent spends no time with the children and thus has no expenses, his standard of living tends to be 16% higher than the receiver's. If, however, the paying parent is an involved one, he or she has expenses—often almost as high as the other parent's. Yet the guidelines deny recognition of this. In fact, Mr. Soever has determined, if the parents have average incomes, once custody exceeds 5% (roughly one night every two weeks), the noncustodial parent and the children when they are with him are penalized with a lower standard of living than in their other home. Once custody approaches 40%, the standard of living in that home is almost 30% lower than in the other home, and barely above the poverty line.

In other words, concludes Mr. Soever, the more time children spend with their divorced non-custodial father, the poorer he gets and the more difficult and impoverished their time together. "The guidelines," he says, "offer clear and powerful financial disincentives to joint parenting by penalizing those payor parents with substantial custody. Most perversely, parents who abandon their children are actually rewarded with a higher standard of living than the children they abandoned."

A further by-product of the guidelines, the researcher says, is that they encourage custody battles as parents strive for the magical 40% threshold, and the benefit to the custodial parent is lost. Mr. Soever knows of one case where a wife was prepared to allow her ex-husband joint custody and about 58% residence time with the children, but not the 50% he desired. This led to protracted mediation and negotiations. The father suspected the guidelines' magical 40% threshold was the root of the problem. To test his theory, the father asked if the children might occasionally have lunch at home with him on Fridays. "Obviously, a hot lunch at home with a parent was preferable to brown-bagging it in a crowded cafeteria," he says. "This, however, would have put him over the magical 40%. It was not really a surprise when the mother's lawyer responded, 'My client is absolutely not agreeable to your suggestion with respect to the children having lunches.' The mother was prepared to fight a costly custody battle just to retain the 40% threshold. Could there be any more blatant example of the insidious nature of these guidelines?"

Ottawa economist Ross Finnie, now an adjunct professor with the School of Policy Studies at Queen's University in Kingston, was one of the developers of the guidelines, but has since published critical articles in the Ottawa Citizen-. "A dubious 'victory' for divorced families" and "Federal proposal may worsen custody, payment programs," as well as a paper, "Good Idea, Bad Execution; The Government's Child Support Package" (caledon@caledoninst.org).

Mr, Finnie believes the underlying guidelines are fair, but objects to the custodial parent receiving all the tax credits, His major criticism, however, is the same as Mr. Soever's. The 40% threshold with no allowance for expenses, he says, "came out of the air with no real explanation. It came from within the Justice Department. Some people were top-notch, working with technically difficult concepts such as 'What does a child cost?' and just wanting to do the right thing, but that was not uniformly the case. I suspect someone said, 'How can we ratchet up these awards a little bit?' Let's just say," he smiles enigmatically, "It ended messily between myself and the Justice Department."

Look Who Doesn't Want A Divorce, By Candis Mclean, 25 Jan 2008

2008-01-25  Look Who Doesn't Want A Divorce, By Candis Mclean

New Studies Indicate Women Are First To File But That Joint Custody Keeps Families Together

We ought to stop kidding ourselves about men," wrote Winnipeg talk-show host John Collison in the National Post last month. "Whether it be biology or the legacy of Bob Guccione [publisher of Penthouse magazine], when it comes to a troubled marriage, the male is more ready, willing and able to bail." Mr. Collison epitomizes the popular view that it is the man who usually breaks up a family in hot-blooded pursuit of a "trophy wife" or casual affairs. In reality, says a wave of new research, throughout most of North American history wives have filed for divorce twice as often as husbands. For good or ill, the news comes just in time to reinforce Parliament's joint Commons-Senate committee conclusion that Canada's divorce laws should no longer assume the wife is the morally superior parent who should automatically assume custody of the children.

The proportion of divorces initiated by women ranged around 60% for most of the 20th century, and climbed to more than 70% in the late 1960s when no-fault divorce was introduced: so says a just-released study by law professor Margaret Brinig of George Mason University in Arlington, Virginia and Douglas Allen, economist at Vancouver's Simon Fraser University. The researchers undertook one of the largest studies ever on divorce, using 46,000 cases from the four American states that keep statistics on which partner initiates the action. In addition to women filing twice as often, the researchers found, they are more likely to instigate separations and marriage break ups.

The Brinig-Allen study also explodes the myth of the brutish husband, finding, for instance, that cruelty is cited in only 6% of divorce applications in Virginia, one of the few states that still uses fault grounds for divorce. More women than men obtain desertion-based divorces in Virginia, but adultery cases are evenly split between men and women.

Arizona State University psychologist Sanford Braver provides backup for the Brinig-Allen study. In his new book, Divorced Dads: Shattering the Myths, Mr. Braver surveyed 400 divorcing couples seeking causes for the breakdown of their marriages. He found "violence or abuse strikingly absent." Instead, less dramatic factors prevailed, such as "growing apart" or "spouse not able or willing to meet my needs." In Canada, adds economist Allen, where one divorce occurs in every three marriages, the findings are similar.

Theories abound as to why it is so often women who file. Janis Magnusson, a Calgary divorce mediator, says she frequently sees women with unreal expectations of marriage and their partners. "Women expect a Prince Charming, while men just want a wife, sex, food and a job," she says. One of her clients left her husband for a younger man she found more exciting. But to her "great chagrin," the woman discovered after five years of marriage and two children that her new husband was a fake.

"His home was filled with easels holding half-finished paintings," recalls the woman. "He seemed so cultured. But once we married, I never once saw him paint a picture." Now back with her first husband (who had also remarried and separated), the woman says, "I joke that we originally divorced because he left wet towels on the bed. Seriously, he wasn't much help. But did I ever say, 'Could you put in a load of laundry?' No, I was busy being the martyr. I just fumed, stomped and slammed. Now we talk."

"I did avoid conflict," her husband admits. "I'm a police officer and I treat words as bullets. I know you don't get them back. However, both my wives also had unrealistic ideas. I wasn't playing the husband role the way they perceived it in the fairy tale world. But men are different. They don't believe in gift horses or fairy tales."

"Leslie," a Calgary psychologist, reports a similar experience. After leaving her husband in 1976, she remarried. Then, 20 years later, she returned to husband number one. "I had such huge expectations that no husband could have met them," she says. "Now I have comfort, security and companionship. But I wish I hadn't had to subject all of us to such trouble." Leslie believes she was a product of the age: "I wanted this perfect thing; I was very disappointed. He probably was, too, but I was the one leaving."

"In informal surveys in my classes," reports Prof. Brinig, "women say they thought marriage and courtship were alike. Men seem to feel that when they're married they can be themselves because they have succeeded in the battle." She is not sure whether that means women are unrealistic, or that the courtship ritual just means different things to each. In 25% of marriage breakdowns, she adds, men have "no clue" there is a problem until the woman tells them they want out. She also notes that women are more likely to file if the divorce rate is high in their area or if their friends and families are doing it. "Where the divorce rate is low so there's a lot of stigma attached," she says, "they won't leave."

"The woman is more willing to take risks because she has more of an emotional support network," asserts Calgary engineer Mahedi Meghani, dismayed that the wives of three close friends have left in the past two years. "She feels better equipped to cope with post-divorce trauma, while he realizes he hasn't even phoned his sister in three years. A woman who is alone is seen to be lonely, so people phone her. A man is supposed to look after himself."

Some men experience an increase in material well-being following divorce. But clinical studies suggest that thanks to better support networks, divorced women undergo less depression than do divorced men. Studies indicate that men tend to get more health, sexual and economic (wage) benefits from marriage than do women, regardless of the quality of the marriage.

"The rights of women in society have been pushed to such an extent that they now feel if they're not happy, it's their partner's fault," says marriage researcher Walter Schneider, who hails from Bruderheim, 20 miles northeast of Edmonton. "That perception is heightened by the social conditioning of men to be chivalrous. Men have to be protectors of women and children, so they are reluctant to become involved in an adversarial process against a woman. They're also less likely to seek divorce because that would destroy their self-image as providers and protectors of the family. It would destroy their world; all they've sacrificed for would go down the drain."

Mr. Schneider points to an Australian study indicating that of four marital categories divorced persons have the highest suicide rate, with divorced males suffering 54 deaths per 100,000 and divorced females one-third that number. By comparison, people who had never married had the next highest rate of suicide with 32 per 100,000 for men and one-quarter that number for women.

Notwithstanding the new studies, the perception that men are pigs still finds abundant anecdotal support. Marney Hollingshead of Edmonton, a 28-year-old mother of two, says she is the classic example of a single mom who tried to maintain a relationship with her husband, but was totally abandoned. "I've got a maintenance order back-dated to '93, but right from the get-go he never bothered to pay maintenance," she reports. "I've involved the police, but for years he hasn't worked enough to file income tax, so there's not much they can do. They took away his licence and he got one in his brother's name."

Ms. Hollingshead, who returned to university and now commands a good salary, is repaying $17,000 in student loans. She says the effect on her  hildren of growing up in poverty "truly, deeply affects them." But growing up without a father is even worse. "My son was four when he last saw his dad," she says. "He went from being happy and easy-going to angry and disrespectful. For the longest time he didn't trust men. 'They'll just leave anyway,' he'd say."

Ms. Hollingshead doesn't believe the proposed amendments to the Divorce Act will have much effect on a man like her husband. "I know a lot of men who have put up with a lot of stuff to see their kids," she says. "But rather than pay maintenance, my husband gave up his kids. What can you do unless you're dealing with someone of character?"

But according to Professors Brinig and Allen, Ms. Hollingshead's custody of the children may be the very reason her husband provides so little support. There are three basic reasons people file for divorce they say: (1) to stop being exploited within the marriage, (2) to exploit the other spouse by running off with marital investments, or (3) to establish custody over children. They believe that determining which of the three predominates could assist divorce law reformers.

If divorces result mostly from bad (or exploitive) marriages, the Brinig-Allen study suggests, then divorce should be made (or kept) easier; if divorces result mostly from a desire to exploit the partner, then it should be made more difficult or expensive; and if it is custody outcomes which most influence divorce filings, a presumption of joint custody, except where one parent can demonstrate the other is unfit, would "mitigate the incentive for one party filing for the purpose of gaining unilateral control over the children and therefore the other spouse."

After analyzing 21 wide-ranging variables, the Brinig-Allen study concludes that the person who anticipates gaining custody of the children is the one most likely to file for divorce. Therefore, Prof. Brinig speculates, if joint custody were the norm, there would likely be fewer divorces, not more. Her conclusion directly contradicts critics of the proposed changes to Canada's divorce laws, who argue that if men no longer fear losing custody of their children they will have one less incentive to stay married.

In fact, however, divorce rates are plunging in states where courts typically award custody of children to both parents. A study headed by Richard Kuhn of the Children's Rights Council based in Washington, D.C., found that states with higher levels of joint custody awards in 1989 and 1990 "have shown significantly greater declines in divorces in the following years through 1995, compared with other states." Overall divorce rates declined nearly four times faster in high joint-custody states compared with states where joint custody is relatively rare. A large factor, the researchers believe, is that joint custody "removes the capacity for one spouse to hurt the other by denying participation in raising the children."