“Lying-in expenses”

While a white-hot debate over abortion engulfs the United States and threatens to spill over into Canada, this Washington Post column by law professor Carliss Chatman purports to take the anti-abortion position to its logical conclusion:

…When a state grants full personhood to a fetus, should they not apply equally?

For example, should child support start at conception? Every state permits the custodial parent — who has primary physical custody of the child and is primarily responsible for his or her day-to-day care — to receive child support from the noncustodial parent. Since a fetus resides in its mother, and receives all nutrition and care from its mother’s body, the mother should be eligible for child support as soon as the fetus is declared a person — at conception in Alabama, at six weeks in states that declare personhood at a fetal heartbeat, at eight weeks in Missouri, which was on the way to passing its law on Friday, but at birth in states that have not banned abortion.

Interestingly, the Parenting and Support Act in Nova Scotia does allow for child support once a child has been conceived – sort of.

Section 11(1)(a) allows an expectant mother to apply for a contribution toward “lying-in expenses” even before the child is born. The Legal Information Society of Nova Scotia defines such expenses as follows:

…These expenses are meant to contribute to the reasonable costs that a woman has while pregnant to carry the baby and prepare for the birth of the baby. These costs usually include things like maternity vitamins, maternity clothes and baby-related items, like a crib, stroller, or car seat. They can also include maintenance of the mother during the pregnancy and expenses related to the birth of the child.

An unmarried woman may ask to have lying-in expenses paid as part of a child support application to the court. A judge can order the mother or the possible father, or both of them, to pay certain amounts toward these expenses. The costs have to be proven (for example, by giving receipts or confirmation of costs) and they have to be reasonable and necessary.

Applications for lying-in expenses can be made during the pregnancy, or after the birth of the child. Often, the application is made after the child is born, and combined with the application for child support , to make things easier (making one application instead of two).

If the application is made before the child is born, the applicant mother must provide confirmation that she is in fact pregnant:

In practice, lying-in expenses are rarely sought. The most recent Nova Scotia decision on the CanLII case-law database in which they were awarded is from 2010. The issue came up in a 2017 case, but they weren’t ordered, at least in part because of the applicant’s tardiness in raising the issue.

In twenty years of practicing family law, I’ve only worked on a handful of cases where lying-in expenses are an issue, and never one where the application was commenced before the birth of the child. But the option is there.

Putting the “dead” in “deadbeat”

An Indiana man who left his family, moved across the country and started a new life with a dead man’s stolen identity has been ordered to pay almost $2 million in unpaid child support:

Linda Iseler said her ex-husband, Richard Hoagland, called her at work on Feb. 10, 1993, to say he was leaving her. She then raced to get the couple’s 6-year-old son, Douglas, at day care before returning to the family’s five-bedroom home in Fishers, where their 9-year-old son, Matthew, was already home alone, the Indianapolis Star reports.

“I can’t live this way anymore,” Hoagland told Iseler, she recalled in a journal. “I feel you would be better off without me.”

Later that evening, Hoagland sealed the family’s fate for good, telling Iseler: “I don’t want to go to jail. I’m never coming back.”

Hoagland cruelly and inexplicably kept his word, eventually remarrying and fathering another son using the name of a dead man whose identity he stole in Florida. But the family’s decades-long quest for answers and justice came to an end on May 14 when a judge ordered Hoagland to pay $1.86 million in back child support, including the maximum allowable annual interest of 18 percent.

[…]

In 2016, Hoagland’s web of deceit collapsed in Zephyrhills, where he was living as Symanksy until he met a police detective in his driveway.

“He told me he was Terry Symanksy,” Pasco County Sheriff’s Office Detective Anthony Cardillo told the newspaper in 2016. “He showed me his driver’s license and gave me the Social Security number for Terry Symansky. Then I showed him the death certificate.”

Hoagland later admitted to living as Symansky and remarrying. He also fathered another son, who was 19 at the time of his father’s arrest. Along with his new wife, Hoagland bought property in Florida and obtained a private pilot’s license. He also owned an airplane, according to the newspaper.

The child support clawback

In several Canadian provinces (including Nova Scotia) child support payments are deducted from social assistance.  A group of single mothers in British Columbia has launched a court challenge against this policy:

The case will argue that the deduction of child support payments from income and disability assistance violates single parent’s right to equality under the Canadian Charter of Rights an Freedoms.

Milne said the law is unconstitutional because it conflicts with the purposes of the child support system, denies the children of parents on income or disability assistance the right to benefit from their child support, and has a disproportionately negative impact on parents with disabilities and single mothers.

“Other kinds of families are better able to earn other kinds of income and they are allowed to keep some of it before it is deducted from their income or disability assistance,” said Viveca Ellis of the Single Mothers’ Alliance of B.C. “Meanwhile, these vulnerable children have an opportunity for better lives through their child support, but they are not allowed to benefit from it and their parents experience additional financial consequences.”

I’m not aware of any court rulings on this issue, so I’ll be keeping an eye on this one. (There is a PEI Human Rights Panel decision which found that the clawback was not discriminatory, but that wasn’t a Charter case.)

His condition was updated to “alive”

1990: man mysteriously disappears without a trace.

2000: his grieving wife reluctantly has him declared legally dead, and begins collecting his pension.

2010: man reappears, claiming he had amnesia. Now he has commenced legal action to recover the pension:

…four years ago — 20 years after he disappeared — he came home. Bright said it wasn’t for a reunion.

“All he talked about was money,” she said.

Court documents show her husband filed a petition to prove he’s Winston Bright and to win back his pension, CBS 2’s Weijia Jiang reported.

He was not only alive but well, and teaching in San Diego with a new identity — “Kwame Seku.”

In his court filing, the “missing” man said, “I was never returned home but rather found myself in California with no recollection of how I got there or who I was.”

Seku said he suffered from amnesia, but his son A.J. said he isn’t buying it.

“You don’t just walk down the black and catch amnesia,” he said.

I’m not sure how this will play out, but by revealing he was alive all along, Mr. Bright/Seku has opened himself up to a potential claim for child support arrears:

Leslie said if Seku proves he is her husband, she’s taking him to divorce court. She said they’re still legally married and he owes her a lot — money to cover years of child support, for starters.

Friends don’t let friends donate sperm for friends

A man in Kansas donated his sperm to a lesbian couple so they could have a child. Now, even though none of the parties intended it, he has been ordered to pay child support:

Shawnee County District Court Judge Mary Mattivi wrote Wednesday that because a licensed physician was not involved in the artificial insemination process, William Marotta is more than a sperm donor and thus responsible for the child.

The Topeka Capital-Journal reports the Kansas Department for Children and Families filed the case in October 2012 seeking to have the Topeka man declared the father of a girl born to Jennifer Schreiner in 2009.

Marotta argued that he didn’t intend to be the child’s father and signed a contract waiving his parental rights.

Could this happen in Canada? Karin Galldin and Leslie Roberson, writing for Slaw, note that this case has several features unique to the United States and Kansas in particular, but that a Canadian sperm donor could potentially be on the hook for child support if the parent seeks it:

As I told my friend, there are a few things about this story that differ from how things would go down in Ontario (his observations about heteronormativity is not one of them). First, Canadian law doesn’t distinguish between DIY and physician-led insemination. Here we’re more concerned with whether the donor is known or anonymous, i.e. sperm purchased from an international sperm bank. The other major difference here is that unlike Kansas, the province of Ontario doesn’t go after people for child support against the wishes of the custodial parent (oh and not to mention that here the state doesn’t ask us to reimburse them for hospital bills).

Despite these differences, the big question is the same: does the law consider known sperm donors to be parents? This question has yet to be answered in Ontario. In fact it is an unknown in all provinces other than Quebec where the Civil Code explicitly recognizes the intended “parental project”. The question of sperm donor rights (and presumably financial responsibilities) is at issue in an upcoming family law trial in Northern Ontario where a sperm donor is now requesting rights of access to the child of two lesbian moms. In both the Kansas and Ontario cases the parties signed a contract identifying their intentions that the donor not be considered a father and the validity of these contracts remains to be seen.

So I had good news and bad news for my friend. The bad news is that yes sperm donors in Ontario could still potentially be ordered to pay child support. But the good news is that it wouldn’t happen against the wishes of the parents.

A commenter notes, however, that Ontario legislation does require a social assistance recipient to make every effort to obtain income from another source, including child support. Most other provinces have similar laws in place, so while the provincial department of Community Services might not commence the support application itself (as apparently happened in Kansas) it may still lean on the support recipient to go after the other parent. I doubt they would distinguish between someone who fathered a child the “old-fashioned” way, and someone who donated his sperm.

As for a case where social assistance is not a factor, I can’t see any court agreeing to uphold an agreement that no child support would be paid by a sperm donor. In cases where a child is conceived “naturally,” it’s a non-starter – child support is considered to be the right of the child, not the custodial parent, and a parent is not allowed to bargain away the little one’s right to financial support. I’ve worked on many divorces where the parties have agreed on everything, but it’s been held up by a Justice who wants a good explanation for why the agreed-upon child support payments are lower than the Child Support Guidelines amount. (If the payor doesn’t make enough money to pay support under the Guidelines, the court will not order it – but it will insist on annual disclosure of income information.)

Courts in this country have generally taken a very expansive view of when child support should be paid, and I can’t see that changing just because a laboratory was involved. Until we see some decisions saying otherwise, I would hold off agreeing to provide sperm to a willing couple unless you understand that you could find yourself forced to pay up.

Crime doesn’t pay. Criminals do.

So your income went down after you were convicted of a criminal offence, and now you can’t pay child support?  Too bad:

When it comes to paying child support, courts won’t sympathize with parents who are the authors of their own financial demise through criminal activity, a family court judge recently ruled this month.

In Rogers v. Rogers, Superior Court Justice Alex Pazaratz found an Ontario father who lost his well-paying job due to criminal convictions couldn’t use his reduced income as an excuse to stop paying child support.

The father, Scott Rogers, “is intentionally under-employed. His intentional behaviour caused him to lose employment and limit his opportunities to find replacement employment,” wrote Pazaratz.

Rogers drove without a licence for 10 years and was convicted of driving while suspended 12 times, according to the ruling. He kept driving after each conviction until “it all caught up with him” in February 2011, wrote Pazaratz. The court sent him to jail for eight months, the judge noted.

Rogers’ employer refused to take him back after he got out of jail, forcing him to take up another job that pays far less than his previous income of $74,500. Rogers also accumulated convictions for uttering threats and harassing his ex-wife.

According to the judge, the father “made conscious decisions to do things — illegal things — with the full knowledge that his reckless and anti-social behaviour would make him unavailable (let alone, unacceptable) for employment. The net result is the same as if he’d handed in his resignation.”

The father of two had gone to court with an application to stop paying child support once his income plummeted to an expected $33,000 in 2013. But Pazaratz said his children and ex-wife shouldn’t have to pay for his bad decisions.

[…]

The Ontario Court of Justice decided similarly in Costello v. Costello. In that case, a father sought reduced support for his two children after losing his job following run-ins with the law.

Toronto family lawyer Bill Rogers calls the decision a “really good reminder” for both family lawyers and litigants of how the courts treat parents who lose their jobs through their own actions. “It’s basically like quitting your job,” he says.

According to Pazaratz, the definition of intentional doesn’t require establishing that the father lost his job just so he could stop paying child support. “There is no requirement of bad faith or need to find a specific intent to evade child support. Rather, as the objectives of the child support guidelines state, parents have a joint and ongoing obligation to support their children. Imputing income is one method which courts can use to give effect to this obligation.”

He added: “The expectations placed on the applicant were not terribly onerous: Obey the law. Support your children. It would be counter to public policy to allow the applicant to deliberately breach the first obligation and then use his own misconduct to avoid the second.”

“Putting photos of me rolling in money on Facebook when I haven’t paid child support is the best idea I ever had!”

said one “father,” anyway:

Facebook helped the Milwaukee County District Attorney’s office charge a wayward father for failing to pay child support.

Christopher Robinson, 23, is facing three felony counts of failure to support his 3-year-old child, according to a complaint filed with the criminal division of the Wisconsin Circuit Court.

The complaint indicates that for three years, Robinson never made any of the required $150 monthlychild support payments.

But pictures that Robinson posted to Facebook that show him posing with cash and bottles of liquor helped the district attorney’s office build a case against him.