In a major victory for a client, the Queen’s Family Law Clinic (QFLC) has obtained what Professor Nick Bala calls “one of the largest and most far-reaching retroactive child support orders ever made in Canada.” The Ontario Superior Court of Justice has ordered a wealthy father who refused a paternity test to pay more than $500,000 in child support covering the past 12 years to a mother and child on social assistance. QFLC lawyers’ and students’ heavy investment in time and hard work has paid off not only for their client, but also for the clinic and family law in Canada.
“Our clinic is here to increase access to family justice, and this was one of the most clear-cut cases of extreme barriers to that access that one could imagine,” says Karla McGrath, LLM’13, QFLC Director. “This mother and child lived in poverty while the child’s father lived a life of luxury as an orthopedic surgeon in Australia and not only refused to provide support but used his financial superiority to fight her efforts to get him to pay even the barest amount of financial support.”
Linda Smith, Law’92, QFLC review counsel from 2017 to 2020, adds, “This case shines a light on how low-income parents (usually women) attempting to access financial justice for themselves and their children have an uphill battle against an opposing party who has deep pockets and engages in a planned and deliberate litigation strategy of denial, evasion, and delay.” Smith has remained on as a special project lawyer to see this matter through to trial.
The QFLC became involved in the case, Woodland v. Kirkham, in 2017, when the Duty Counsel at the Kingston Family Court referred Erica Woodland to the pro bono clinic for advice and guidance about ongoing and retroactive child support for her then-16-year-old child, L., who had a learning disability. Back in 2000, Woodland conceived a child with respondent Stuart Kirkham. Not able to finish her employment training when L. was born in 2001, she applied for social assistance. Later that year, she first contacted Kirkham, but he said he said he was not responsible for the child because she did not terminate the pregnancy.
“When this matter first came to us, it was not complex and we had every reason to believe that our students could assist this mother as a self-representing litigant,” explains McGrath. “Other than having to locate and contact the father in Australia the plan was fairly simple: raise the matter with the father, encourage him to get independent legal counsel, arrange paternity testing and, once it was proved that he was the father, negotiate some amount of child support.”
Both Smith and McGrath note that, in their experience, cases involving paternity and child support rarely go to court; they are settled on consent. If the paternity test results are positive, then the amount of child support payable is determined in accordance with the Child Support Guidelines. “This should have been a relatively straightforward matter,” Smith says.
In January 2018, five months after the QFLC helped Woodland issue an application for child support with the Superior Court of Justice, Kirkham retained an Ontario lawyer. The case was clearly going to continue in Family Court and was going to require more support than the small student law clinic was equipped to give. They helped Woodland obtain a certificate from Legal Aid Ontario (LAO) for 21 hours of free counsel from a lawyer on the LAO family law panel and QFLC members continued to assist to optimize that time. But Kirkham continued to resist, and Woodland’s certificate hours were depleted before the case was headed to the higher-level Divisional Court for the first time as Kirkham was appealing the Family Court’s order for him to participate in paternity testing by a set date. “Family Court is complicated, but the Divisional Court is something else altogether and there was no way that this mother and child could have prevailed without assistance,” says McGrath.
Realizing the breadth and depth of the challenge of fully taking on this case, McGrath and Smith discussed what would be required of the QFLC, the importance of the matter to the family that had no other option but to give up, and the importance to their students of their role in this “David and Goliath” battle. “I didn’t want to let Goliath win and I didn’t want to let our client down but most of all I didn’t want to face the students telling them that we had given up,” says McGrath.
Over a four-year litigation period, clinic lawyers McGrath and Smith and an articling student spent more than 400 hours and student caseworkers spent a further 220 hours on the case. “We were the foil against one determined respondent with deep pockets,” says Smith. “We prevented our client from being starved out of the litigation.”
After numerous court appearances, multiple motions, and two forays to the Divisional Court –including one that was speciously set down as an “emergency” and the decision by the Family Court to strike Kirkham’s pleadings due to his ongoing refusal to provide disclosure – there was finally a Family Court trial in July 2021.
Justice Wendy Malcolm ordered that Kirkham pay Woodland over $500,000 for 12 years of retroactive child support and gave permission to put the father’s name on the child’s birth certificate against the father’s protestations.
This decision took important retroactive child support principles from Supreme Court of Canada rulings Michel v. Graydon (2020) and D.B.S. v. S.R.G. (2006), which paved the road map for an individualized and holistic approach when retroactive child support is an issue.
Stated in Malcolm’s decision is a point Smith made at trial: “The juxtaposition of the respondent selling a $4-million home and L. not having access to food, clothing, shoes, or bedding when required is startling.”
“A court must take account the interconnected nature of issues of child support, child poverty, violence and intimidation and the consequent feminization of poverty,” Smith explains. “These are valid reasons to excuse delays in actively pursuing child support, even very long delays.” Smith notes that Malcolm did take these factors into account in finding that a 12-year retroactive child support claim was fair and reasonable. “Justice Malcolm went on to say that if she did not make this order, she would be sending a message to other litigants that stalling and non-disclosure are effective litigation plans.”
Dozens of young and aspiring lawyers working with the QFLC have formed their impressions of poverty, fairness, and access to family justice by their exposure to this case, notes McGrath. Several of them have worked directly on this matter.
Beth Ambury, Law’18, was the second student to work on the matter and initiated the legal process. “Most often, family court cases are about shades of grey,” she says. “This case was special because there was a clear right side, and we got to advocate for it.”
Now practising with RST Law in Kingston, Ambury credits the QFLC with preparing her to work as a family lawyer. “It’s rare for a freshly graduated law student to know the applicable rules, the timelines, how to draft court documents, and how to docket,” she says. “These skills helped me to hit the ground running as soon as I graduated.”
Rachel Law, Law’18, was the QFLC articling student who did the groundwork for both Divisional Court matters. “This file presented so many unique challenges and new areas,” she says. “The unfortunate reality for so many people is that they cannot afford to access legal assistance or representation. In a complex, lengthy, drawn-out case such as this one, I do not know how a person would or could be expected to navigate the family law system on their own.”
Now a lawyer with the Community Advocacy & Legal Centre in Belleville, Law says, “My QFLC experience truly helped me become a better lawyer and advocate for my clients. I gained experience representing clients in court and advocating orally and in written submissions. Amongst the many things that the QFLC taught me, compassion for and the ability to interact with clients has been extremely valuable in my career.”
Erica Woodland expresses her optimism for future cases like hers. “My hopes are that this can be helpful to many, that it will be an example for parents who choose to not pay support, especially when they have the means to do so,” she says. “The issue of ‘dead-beat parents’ is endemic and requires attention. It’s often too easy for these parents to get away with ignoring their responsibilities. L. and I have been fortunate to have this come to fruition. I know we have yet to see payments but getting as far as we have in this process is phenomenal in itself."
While Justice Malcolm’s decision marks an important milestone in concluding this legal saga, Smith cautions, “We are not finished yet. Student caseworkers have learned another valuable lesson; a court order is simply a piece of paper that must be enforced.”
The Queen’s Law Clinics gratefully acknowledge the support of Legal Aid Ontario, the Law Foundation of Ontario, Pro Bono Students Canada, the Class of Law’81, the United Way of KFL&A, and alumni, friend, and industry sponsors.