willick+v+willick

This case is all about the methods courts use to establish child support.
 * Notes:**

Parties separated. As part of the separation agreement, husband agreed to pay wife $450 per month for each of their two kids, and $700 per month spousal support. The husband was employed as an airline pilot while the wife’s only income was support payments and family allowance. The husband’s income increased dramatically (over threefold). A divorce judgment was then issued, incorporating the terms of the separation agreement. The wife later applied for an increase in child support, pursuant to s. 17(4) of the Divorce Act.
 * Facts:**

1) 1. Should courts intervene once parties have settled their affairs pursuant to a separation agreement? 2) 2. Was s. 17(4) of the Divorce Act satisfied? I.e., was there a material change in circumstance that would justify modifying the amount of child support? 3) 3. The other big issue is whether the broader social context should be considered: namely that woman and children, according to statistical data, are generally not awarded sufficient child support.
 * Issues:**

1) 1. Yes. S. 17(4) of the Divorce Act allows for this. 2) 2. Yes. (So child support should be increased.) 3) 3. The majority (led by Sopinka, J) says no. The minority (led by L’Heureux-Dube, J) says yes, the broader social context must be taken into account.
 * Held:**

__Majority:__ Divorce Act s. 17 (4): “Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.” A material change in circumstances is required in order to change the amount of child support: i.e. “a change that, if known at the time, would likely have resulted in different terms.” -Child support can be changed when the “relationship between the needs of the children having regard to the means of the parents changes in a material way.” I.e. if the kids’ needs change, **or the parents’ means change**, this can justify changing child support. -N.B. a parent whose income drops could use s. 17(4) to reduce child support, even if the child’s needs haven’t reduced. -The needs of children are “affected by the standard set by the means of the parents.”
 * Reasoning:**

__Minority (concurring):__ Courts are not bound by agreements of the parties regarding child support. The courts must consider the right of the child to be supported, not simply the agreement that parents have made between themselves.
 * Prior agreement issue**

Two parts of the “threshold test” to justify s. 17(4): 1) There must be a “change in the condition, means, needs or other circumstances of either former spouse or of any child of the marriage.” 2) Sufficiency of the alleged change in circumstances In the case at bar, both parts of the threshold test have been met. The father’s income increase and the children’s needs had increased, although a change in just one would have been sufficient. N.B. that the Court of Appeal held that the trial judge had erred by looking only at the father’s income first without inquiring as to whether there had been a material change in the children’s needs and the parties’ circumstances. “[Children] have a right to benefit from the better lifestyles of their parents as the circumstances permit.”
 * When should child support be modified?**

L’Heureux-Dube, J., defends the use of social science in family law judgments. She draws on lots of statistical analysis to demonstrate that there are high levels of poverty amongst children in single-parent households, and that courts have failed to contemplate hidden costs in their calculation of child support awards (e.g. additional housekeeping). Based on available data, the courts have traditionally awarded way too little child support. -The courts need to take into account the broader social context when interpreting this statute. Sopinka, J., writing for the majority, disagrees. -L’H-D says that we should determine the children’s needs by evaluating both direct and hidden costs. Then, taking this total, we should evaluate it against the parents’ means (taking into account each parent’s need for subsistence).
 * Social context**

1)1. 1. When it comes to child support, courts are not bound by agreements made by the parties. 2) 2. A material change in the parents’ means is sufficient to invoke s. 17(4) and modify child support. 3) 3. L’H-D makes a strong case for taking into account broader social problems regarding female-headed single-parent households, although she’s in the minority.
 * Ratio:**