Only the Child, M'am!

By Marcel Strigberger

A bizarre thing happened to me in one of my divorce or rather uncontested divorce files.

I represented a single mother of a 10-year-old girl. She was married to a man from down east who had moved back there about 3 or 4 years ago after the separation. He had not seen the child since. I suppose you are wondering if he had been supporting her. I didn't think you were.

I am sure dad had good reasons for financially ignoring his obligations to this child. One reason no doubt was that the guy rarely worked. He would dabble in this or that at his pleasure and then get unemployment insurance for a while. Another good reason was that he was busy trying to balance supporting the various children he had with the various women in the different towns in Ontario and Nova Scotia.

My client who was perhaps a skip and a jump above the poverty line eking out a living doing some white-collar job retained me on borrowed money to get a simple uncontested divorce. No problem. Or so I thought.

I knew it would be futile to try to get support for the child but I am cognisant of section 11-b of the Divorce Act that says a judge can stay the proceeding unless he or she is satisfied that reasonable arrangements have been made for the support of the child. I did not think it would be of much use not to claim child support and to cite in the affidavit for the divorce judgement that it was most unlikely that dad would ever pay a penny. We decided to spring for the futile expense of doing a financial statement.

Then we had to track down the prolific husband/father somewhere in Booniesville Nova Scotia. This proved to be somewhat difficult as his address was rather rustic and quaint. It was something like "RR4 Harbourtown just around the corner from the angry lobster."

After blowing $300 to search and serve Mr. Stud, we started waiting the required 40 days before which we could note the man in default and get our uncontested divorce. All we asked for in the prayer for relief other than a divorce was custody and child support in accordance with the Guidelines.

After 39 days of course, we heard from the husband. Actually we received a letter from a Legal Aid staff lawyer in Glace Bay pleading hardship as the guy was not earning any money. I am certain this was due to the fact that he really had no time to earn child support money because he was too busy making more children. The letter went on to say that the gentleman was surviving from handouts by the good graces of his lady friends. Eminent Glace Bay counsel indicated that they would not be any contesting the divorce and that we could go ahead and claim support under the Guidelines. If and when dad received UIC, the guideline amount would be about $100 for our child. He had no problem with this.

I put together the wife's affidavit attaching a letter of Glace Bay counsel. I expected the Court to the west of Toronto to readily grant the divorce judgment. Then again the Blue Jays probably expect to win a pennant again this millennium.

A week or so later the Registrar mailed us back a copy of the judge's endorsement, which read:

I am not satisfied that the needs of the child are presently being looked after by the husband. I am therefore exercising my discretion under section 11b of the Divorce Act to delay the application pending receipt of further material which will satisfy me that the husband in fact will adequately assist in looking after the child's needs; . . .

I called the wife whose special $550 flat fee in this matter not to mention the hundreds of dollars in disbursements had already well been spoken for by now. She was a slight bit livid for not having yet received her uncontested divorce as she was eager to jettison herself from her freeloader husband and get on with life. She started to make unkind comments about the law calling it an ass and then some. At least she was quoting Charles Dickens, in part.

I explained the purpose and intent of section 11-b. I told her the parties cannot trample on and compromise the rights of the children to get support from both parents. If the court senses that the father say, is not doing his fair share, then the court can whack the mother and deny her divorce, as she too is part of the problem. It was the child and only the child that counted.

She queried, "How does the child benefit if the mother must go broke trying to get a simple uncontested divorce?"

I did not have an answer to that one. The lawyer's job is not to reason why. Ours is but to prepare further materials. That's Rudyard Kipling, in part.

As my client had not burnt all her bridges with her husband, she told me she would call him and get back to me for the purpose of doing a supplementary affidavit. She advised me that the next time around the judge would be very satisfied that the child's needs would be taken care of by both parents. I did not know quite what she meant but I was curious to find out.

A week later who calls me? The husband. He told me he was no longer being represented by the legal aid lawyer as he had had a change in fortune. I conference called my client and then the husband related additional information to both of us following which I promptly drew up a supplementary affidavit:

We submitted this supplementary affidavit. Guess what? His Honour granted the divorce. The judicial endorsement read:

I am now satisfied that the husband has come to the realization that the support of the child involves both parents. I am also satisfied that the wife did well to hold out for more in the best interest of the child. Petition granted.

Justice has prevailed. I have a happy client. His Honour feels vindicated in having held up the divorce. Most important, the interests of the child have been fully protected.

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© 2007 Marcel Strigberger. This article CANNOT be copied or reproduced in any way without the expressed written consent of the Author.