Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 8 - Evidence - March 31, 1998
OTTAWA, Tuesday, March 31, 1998
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 10:00 a.m. to monitor the implementation and application of Chapter 1, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act, and the associated Federal Child Support Guidelines.
Senator Lowell Murray (Chairman) in the Chair.
[English]
The Chairman: This is our seventh meeting on the subject of the child support guidelines. Our first witness is Ms Elizabeth Beattie. To say that Ms Beattie has been waiting patiently for her opportunity to testify before this committee would be the understatement of the year. She attended our first very meeting on December 15. She has been present at every one of our meetings since then. She has been making copious notes. She testified before the parliamentary committees on Bill C-41 when that bill was before the last Parliament. She has sent us some material.
She is, I may say, a custodial parent, and she is particularly interested in issues of enforcement and in the tax regime that applies to new settlements. That is not to restrict her in any way because, as I say, she has been here at all the meetings and has heard all of our previous witnesses. I, for one, am looking forward with great interest to what she has to say.
Ms Beattie, welcome again and please proceed.
Ms Elisabeth Beattie: I am very glad to be here and I thank you for inviting me.
I am here as an individual. I do not represent a women's group. I represent my children, and by extension, all children in similar circumstances.
As for my credentials, and Senator LeBreton may appreciate this, I have more on-the-ground experience than anyone could ever wish to have on the issue of wilful child support default involving interprovincial and international flight, and where the defaulter was either self-employed or employed by the federal government or the United Nations. It is to those situations that I will be speaking.
The extent of my experience can be summed up in the numbers: 15 years of effort and $350,000 in legal fees; the involvement over time of seven federal departments and three police forces; two court proceedings in which the Attorney General of Canada opposed us; 40 court orders relating to child support enforcement; 14 citations for contempt outstanding, including 10 involving serious non-financial matters such as failures to appear before the court; an arrest warrant and privately laid criminal charges outstanding; and the defaulter's passport being revoked but never recovered.
The arrears are approaching $500,000. My children have passed from ages three, five and eight, to 20, 23 and 25. There are no seizable assets in Canada and no realistic chance of realizing on any of the arrears without definitive federal legislation. Bill C-41 did not help us.
That I should find myself in this position after expending so much time, effort and money is a clear condemnation of the system. My case cried out for federal assistance, and that assistance was not forthcoming. Both Conservative and Liberal governments failed us.
Friends refer to me as a "one-person marching band," and that is exactly what I have been.
There is a widely held view that since enforcement is a provincial responsibility, it cannot be a national issue as well. I do not agree with that view and have spent the last six years lobbying for a more pro-active federal role. It has been a lonely and often frustrating struggle. I believe that I have made some progress, but there is still a long way to go.
It is easy to discount my proposals on the grounds that my situation is unique. However, it is not unique. Cases such as mine are becoming more frequent as a result of increased social mobility. My task today is to enlist your help in bringing our plight to the attention of policymakers.
Bill C-41 is mostly about guidelines. That is reflected in the evidence you have heard to date. In my respectful view, the government put carts before horses. Unless and until enforcement is ensured to the extent possible, the best guidelines in the world risk becoming academic.
We need a national enforcement strategy and a standard across the country. We need the federal government to give substance to its rhetoric by getting its own house in order and by demonstrating, in an equivocal and official way, that "the buck stops here."
In previous testimony, Phil Epstein told the committee that there is no doubt that the threat of losing a driver's licence or a passport are significant incentives to pay support. He also said that the government can do more in the enforcement area and ought to consider a national program on enforcement to further encourage people to comply with child support orders.
I believe there is a model for such a program. The Subcommittee on Human Rights and International Development of the House of Commons Standing Committee on Foreign Affairs and International Trade has just completed an examination of the issue of international child abductions. Sergeant Oliver of the RCMP's Missing Children's Registry testified:
We use all the resources at our disposal, depending on what country we're dealing with and how difficult it's going to be.
Those resources include community social groups, all levels of government, and a multitude of international organizations. The enforcement tool kit includes mediation, civil and criminal law, extradition, diplomacy through consular operations, bilateral treaties, and the October 25, 1980 Hague Convention on the Civil Aspects of International Child Abduction.
Although the subcommittee did not examine the reciprocal issue of international child abandonment, which would include international flight to avoid child support, it is clear from reading the testimony that many of the same issues, strategies and problems pertain.
My case would have benefited from the interdepartmental cooperation, the integration of policy and operations, and the multiplicity of enforcement levers that are applied in cases of international child abduction. Children should not be viewed as property. Abduction and abandonment should be pursued with equal vigour.
It is my recommendation that the Subcommittee on Human Rights and International Development examine the issue of international child abandonment, including cross-border flight to avoid child support. In that review, consideration should be given to criminal sanctions, passport policies and operations, extradition and other bilateral treaties, international conventions, and the policies of both the federal government and the United Nations as regards employees and former employees.
Eleven of the 12 recommendations in my written submission address these considerations. My remarks here will focus primarily on the recommendations regarding criminal sanctions, international conventions, policies of the United Nations and the garnishment of federal pension credits.
I have recommended that the federal government enact a criminal offence of wilful default of child support, to be implemented as an offence against the person. The offence would apply to intractable and cross-border cases. It would include a standard package of practical remedies to be applied as an alternative to incarceration, in order to effect restitution in the amount of child support arrears. Those remedies might include seizure of passports, appointment of trustees, orders to report monthly, and suspension only of the citation for contempt.
This is a new approach that is squarely within the jurisdiction of the federal government, which has constitutional authority over criminal law and matters of a cross-border nature, and a mandate to act in matters of public order. In my respectful view, child support is a matter of public order.
Bill C-41 used the Divorce Act to create a framework and national standard for child support awards. The enactment of a criminal offence would create the much-needed framework and national standard for enforcement, without interfering with or diminishing provincial responsibilities. The proposed section would put wilful default where it belongs, in the same category of seriousness as abuse, abandonment and neglect. In the words of a Globe and Mail editorial writer:
The deliberate neglect of these payments should be regarded as a failure to provide a child with the necessities of life. It should be socially unacceptable, and it should be punishable.
On the practical side, it would provide three essentials things which are currently lacking: a powerful deterrent; a strong incentive to settle existing arrears, and, where necessary, an ultimate sanction, and a uniform, Canada-wide enforcement mechanism, from which much would follow.
Significant for young people, it would show even-handedness in the light of the proposed toughening of the Young Offenders Act. Fairness dictates that, if you are going to get tough on the kids, you should get equally tough on irresponsible parents whose actions help to create "the walking wounded."
Passport controls and extradition treaties are part and parcel of this new approach, and I dealt with these in sections 3.1 and 3.2 of my written submission.
Officials in Manitoba and Saskatchewan have informed me that the passport measure in Bill C-41 has been effective in eliciting settlements in the small number of cases where the measures have been applied. Betty Ann Pottruff confirmed that advice in her testimony a few weeks ago. It is gratifying news, since my case was instrumental in the decision to suspend passports and that provision has attracted a great deal of criticism.
However, for the worst cases, federal passport policy and operations need to be enhanced, and I refer you to the four recommendations in section 3.1 of my written submission.
I will also leave with the clerk a letter that I wrote to The Globe and Mail. It addresses the contention by a member of this committee that the passport provision is degrading and draconian.
I have recommended that the federal government promote an international convention on child abandonment similar to the Hague Convention on Child Abduction. Subsequent to writing my submission, I became aware of the April 15, 1958 Hague Convention concerning the Recognition and Enforcement of Decisions relating to Maintenance Obligations towards Children. I have not yet obtained a copy.
The world has changed a great deal since 1958 and no doubt that convention needs a review. In 1976, Canada instigated the drafting of the Hague Convention on Child Abduction. It would be appropriate for the Department of Foreign Affairs to instigate a review of the 1958 convention in the context of an examination of international child abandonment.
I have recommended that the federal government undertake to promote improved internal control and financial accountability by the United Nations and its agencies, with particular reference to salary enhancements, dependents' allowances and education grants paid to divorced or separated employees who do not have custody of their children.
I have further recommended that the federal government initiate policies to protect children through the garnishment of salary and pension benefits paid to Canadian citizens by the United Nations and its agencies, in order to satisfy child support obligations.
Canadians who work for the United Nations enjoy generous tax-free salaries payable in U.S. dollars. In addition, they are eligible for salary enhancements, dependents' allowances and education grants if they have dependent children.
These allowances for dependents are payable to divorced or separated employees whether or not they have custody of their children. At least one agency pays the allowances even when the organization is aware that court-ordered child support payments are not being made. This practice should be unacceptable. Not only is the parent not paying child support, he or she is enriching himself by virtue of his children. The add-ons can amount to tens of thousands of U.S. dollars.
Because of the special privileges and various immunities available to them, the enforcement of child support orders against international civil servants is virtually impossible. The United Nations and its agencies are safe havens. This should be unacceptable, given the widespread public commitment of the Canadian government and the United Nations to put children first.
It is appropriate therefore that the Minister of Foreign Affairs undertake initiatives to ensure that child support obligations are fulfilled by Canadians employed by the United Nations and its agencies. This could be accomplished through the garnishment of salary and pension benefits consistent with each country's national practice.
There are two recommendations in my written submission that relate directly to my personal battles with the federal bureaucracy, battles which are not yet won. I am an independent person who does not ask for help easily. I am appealing to this committee to exercise its collective influence to assist me, and in so doing, to help others like me.
Because of special circumstances, a sizeable tax refund is due to the defaulter for a particular tax year. That refund is subject to a garnishment order, but the taxpayer has not filed the tax return.
The former Minister of National Revenue acknowledged that she had the authority to demand a return whether there were taxes owing or not. She admitted that the department's efforts have generally focused on issuing such demands only where the taxpayer owes the government money. In January, 1997, she informed me that department officials were examining the issue. Since then, there has been a cabinet shuffle and my requests for a status report have fallen on deaf ears. I have addressed this particular issue in recommendation number 4 in my written submission.
I have recommended that legislation be enacted which would permit, as a last resort, the seizure of federal superannuation credits to be paid out as a commuted lump sum to satisfy child support arrears.
A child's needs are immediate. They cannot be postponed. When support payments are not forthcoming, custodial parents must draw on all resources, including RRSPs. Fairness demands that the same obligation to draw on all personal resources be imposed on child support delinquents.
In 1996, both Manitoba and Saskatchewan enacted legislation which allows the garnishment of pension benefit credits for purposes of maintenance enforcement as a last resort. In Manitoba, the government can seize the amount already banked and garnish future pension credits as they are earned, with no cap. In Saskatchewan, seizure is limited to inactive pension accounts.
The Manitoba legislation received all-party support, and officials in both provinces have informed me that the legislation has been very effective.
In my own case, there are three court orders which restrain the defaulter from receiving, assigning, or dealing in any manner whatsoever with his superannuation credits or CPP entitlements. As matters stand, unless the federal government is intending to be an accomplice in contempt of those court orders, and I have received no assurances on that score, the pension capital will never be paid out to anyone.
Legislation enabling the garnishment of superannuation and CPP credits would provide a mechanism to resolve the stalemate. I was hoping to see such an amendment in Bill C-41. I was sorely disappointed.
In responding to my proposal, the President of the Treasury Board cited actuarial and administrative considerations. In my respectful view, the actuarial consequences of my proposal would be insignificant. It is really a matter of political will.
In May 1996, the same minister defended generous buy-outs of the federal public servants as "the cost for social stability and social peace." Given the impact of default on the lives of children, the removal of protection for federally regulated pensions in cases of child support default should likewise be viewed as a necessary price for social stability and social peace.
A judge in my own case wrote:
...the Canadian dependents of a fugitive from financial responsibility ought to have more immediate and complete access to any monies the government may have to which the fugitive is or may become entitled.
Indeed, there are numerous precedents for lump-sum payouts from individual public service superannuation accounts in a variety of circumstances, some involving transfers to third parties. I have described those at length in my written submission.
Clearly, both the concept and the calculation of a commuted lump sum have been accepted by Treasury Board in the context of federal pensions. The time is right to implement my proposal, given the government's plans to overhaul the public service pension plan.
Apart from being the right thing to do for all custodial parents with significant arrears, the garnishment of pension credits would be particularly appropriate for custodial parents who were divorced prior to 1986, when pensions were not viewed as property and were not taken into consideration in property settlements. Those custodial parents did not benefit from the Pension Benefits Division Act.
Why the inaction? In my respectful view, the context bothers policymakers. Despite the rhetoric, child support is still not viewed as a serious children's issue and the federal government is not prepared to crack down on the defaulters within its ranks. It should also be noted that there is a high risk of conflict of interest on this issue.
There has been a lot of rhetoric in recent years about children being first in line. Child support enforcement is about the right of children to come first, no matter what. It is about the obligation of parents, the state, and the courts to ensure that this right is a meaningful one.
Bill C-41 introduced some important adjustments to child support enforcement policy, but more comprehensive legislation is required if children are to be first in fact.
That is the end of my opening statement. I would be glad to take questions. I would first like to submit three documents for your consideration in relation to what I have just said.
The first, from the Province of Manitoba, is a letter from the Director of the Maintenance Enforcement Program, including a document entitled "Department of Labour, Pension Commission Update No. 16.1, Garnishment of Pension Benefit Credits for Purposes of Maintenance Enforcement." That is the Manitoba legislation.
The second, from the Province of Saskatchewan, is a copy of their legislation in regard to the garnishment of pension credits.
The third, which I would like also to have attached, if you agree, to your proceedings, is my submission to the Banking Committee regarding the tax change, which Senator Kirby was good enough to attach to the minutes of the meeting they held on Bill C-92. I have not had time here to cover the tax change but it is a comprehensive document, and I think it is an important issue. If you would agree to that, I would be very happy.
The Chairman: We will certainly take them as exhibits here for the benefit of members of the committee. Thank you, Ms Beattie.
Senator LeBreton: Thank you very much for appearing, Ms Beattie. When Bill C-41 came into effect, what impact, if any, did it have? What was your anticipation of the effect it might have for your particular case, which obviously is quite similar to a lot of other cases?
Ms Beattie: I made a great many recommendations to the Department of Justice and the various other departments involved in preparing the bill. There were two key ones. The first was the criminal offence, which I feel is really important for the tough cases where you have cross-border flight. Civil orders are not recognized internationally. I must say, in my own case, until I succeeded in laying criminal charges, not associated with the default but associated with other things, I did not get anyone's attention. I only got the attention of various officials once there were criminal charges laid. I think that is a sad commentary.
The second important recommendation was the seizure of the pension credits. This would be used only as a last resort. I know that in Manitoba they use it, which you will be able to see from the letter, where the defaulter is outside the province and it is the only resource left.
Senator LeBreton: Is it fair to say that Bill C-41 did not make any real difference to your specific case?
Ms Beattie: Absolutely not, but then I do not think the legislation, when it first was drafted, was intended to deal with enforcement in any way whatsoever. I would wager that if I had not been banging on the door, the passport suspension would not have been there and neither would the minor provision for pension diversion.
Senator LeBreton: I was very interested in your comment that the UN and its agencies are safe havens for people. Have you had any comment from or specific dealings with the United Nations? Have they ever responded to this particular observation that you have made? Have they done anything?
Ms Beattie: No. This fellow left in 1985. We have written to everybody at the United Nations, from the janitor on up.
The Chairman: He left where in 1985?
Ms Beattie: Left Canada. He was on an executive exchange. We tried sending letters, both from me personally and from my lawyer. We went right up to the director general. We never received any response. Finally, Stephen Lewis agreed to make some representations on my behalf.
The Chairman: When he was ambassador?
Ms Beattie: I think it was subsequent to that. He did this on his own time. We were very upset that someone could enrich himself in this way, that the organization was paying out these allowances even in the face of knowing that child support was not being paid, school fees were not being paid, and so on. Stephen Lewis reported to me that the director general said to him that they were very reluctant to finger a Canadian.
We have also heard since that their policy is that, as long as there is a court order that says that child support and school fees are to be paid, their assumption is that that is being done. If it is not being done, it is between me and him. Basically, they will not get involved.
Senator LeBreton: They have just washed their hands of it.
Ms Beattie: They have washed their hands of it. I find this completely unacceptable.
Senator LeBreton: Is it correct to say that the income this individual is paid takes into account the fact that he has children, so, therefore, he is benefiting monetarily from having children even though you are not seeing any benefit yourself, nor are the children?
Ms Beattie: That is right, particularly where school fees are involved. The only way I could have prevented that would have been to take the kids out of school. I was not prepared to do that.
Senator LeBreton: I am glad that you are going to table with the committee the Manitoba and Saskatchewan legislation. Manitoba seems to be a little farther ahead on this. Have you received any reports as to how this is working now in Manitoba?
Ms Beattie: I am attaching a letter. It is a year out of date, but it gives you some statistics as at December, 1996. They had issued 60 orders and collected approximately $250,000, with the payments ranging from $1,000 to nearly $45,000.
Senator LeBreton: What does that represent? Does that mean those 60 orders are completed? Are these success stories?
Ms Beattie: These are 60 orders where they actually garnisheed the pension credits and paid out the money. She said it totalled $250,000, payments ranging from $1,000 to nearly $45,000.
In my case, if the pension were paid out as a lump sum, I have calculated it might be $100,000 or even $200,000, depending on various factors. In my own case, the arrears absolutely overwhelm any lump sum, however they wish to calculate it.
Senator LeBreton: So we have now precedent that this can be done.
Ms Beattie: I had hoped that when Betty Ann Pottruff appeared, she would mention the Saskatchewan legislation because it is very similar. She told me that she had told the Department of Justice here that the amendment relating to pensions in Bill C-41 was absolutely not helpful to them. It is too little, too late. It only kicks in when the person is 50 years old and retired, and the account has to be inactive and so on.
There are two provinces now which have really cracked down in a significant way. They only use it as a last resort. If one lever does not work, you go up to the next level and increase the pressure a notch.
This is the way they deal with child abductions. They start at a low level and then lay on the lumber in increasing strengths. If you do not have these provisions, especially the criminal sanction, then you have a huge loophole. These guys know civil orders mean absolutely nothing once you are across the border.
Senator LeBreton: In legislation like this, the people who are meant to be helped are the children. You do not have to answer this if you do not want, but can you tell us what kind of impact this ongoing struggle has had on your children? Have they been able -- thanks to you largely, I am sure -- to go on with their lives and not let this consume them as well?
Ms Beattie: Only recently, once they have become adults, have they become fully aware of all that has gone on. They are quite mature about it all. They were affected most of all in their self-esteem. Kids often do not think of these things in money terms. The custodial parents do but, for the kids, it is more a matter of self-esteem. My children knew he was not paying and they knew he had left the country. We were very lucky because my parents stepped in, so in that sense there was continuity in their lives, but I would say that custodial parents as a rule do not have that kind of support, and the kids suffer.
Lately my children have turned a corner. For them now it is a principle. Whether or not we get the money now does not matter. What they want is to have policies put in place that would ensure to the extent possible that this would not happen again. That is why I have been sitting here in the background. When Betty Ann Pottruff said they had taken away four passports and that that had worked, I was able to go home and tell that to the kids. I said it did not work for us but it worked for four people, and they smiled.
Senator LeBreton: I must say, in answer to the comments about the seizing of a passport being degrading, what about the people who are on the other side of that problem?
The Chairman: Do I understand correctly that, in your case, the defaulter is a person who was a federal public servant and is now with the United Nations?
Ms Beattie: He worked for the United Nations for about 12 years. He was not paid from Canada but he was on an interchange from Privy Council Office as it turns out.
The Chairman: He was a federal public servant?
Ms Beattie: He was a federal public servant who took leave to work at WHO in Geneva and basically kept renewing that every two years. He does not work there any longer, but to my knowledge he is still offshore.
The Chairman: He is out of country. Is it your view that federal governments over the years have been lax in enforcing orders against their own employees, or is it simply that federal policy is inadequate, or both?
Ms Beattie: I think it is both. Certainly our communications with the Privy Council Office would indicate that when push comes to shove, the power is always on the other side. I do not know whether it is the same in court, but it was throughout all my court experiences. The three-piece suit gets believed. It was an uphill battle for me to get the credibility. With the government, it was a bit of both.
The Chairman: You went to court to seek relief, as it were. I think that is the legal term. The Attorney General of Canada opposed you. Was it on constitutional grounds? What were the grounds for the Attorney General?
Ms Beattie: The first time we met up with the Attorney General was when we got wind of the fact that this fellow was trying to roll his public servant pension out into the UN plan in New York. For us, that would have had devastating consequences. We took the government to court to try to get, in effect, a restraining order. We had orders where judges had said this fellow cannot deal with his pension in any way and we sent them off to Treasury Board and asked them, "Will you obey the spirit of these orders?" They did not give us those assurances. They basically said, "If this fellow defies the court order, we cannot do anything to help you." That indicated to me that if he had tried, in contempt of those court orders, to roll the pension out, the government would have just sat back and watched it happen. We could not afford to let that happen so we actually tied the government up in court during the window of opportunity when it could have been done, and in that way prevented it from happening.
The Chairman: Was there a finding against the government?
Ms Beattie: No. What happened basically was that the motion was adjourned and no-one ever brought it back. It went into legal limbo. By tying the government up, they could not take any action on his request because there was a court proceeding pending. That is how we prevented it. We would never have got that restraining order.
The Chairman: That is not permanent, is it? Of course, he is no longer with the UN.
Ms Beattie: Now he is past the window of opportunity when he could have done it.
The Chairman: But their legal right to do what they were apparently proposing to do has not been successfully challenged as we sit here, right?
Ms Beattie: You mean the Attorney General?
The Chairman: The government, the Privy Council, Treasury Board.
Ms Beattie: Yes.
The Chairman: In other words, the law as it now stands is that they could proceed to allow a defaulter, who is subject to a court order with regard to his superannuation benefits, to fold his or her superannuation benefits into some international agency?
Ms Beattie: The mechanism is still there. I believe -- and this is one of my recommendations -- Bill C-41 made a very small amendment, the practical effect of which would be that if there are arrears registered with the government and someone attempts to use this reciprocal agreement, then the lump sum that would normally go to New York is subject to garnishment. That provision is there, but it does not protect people in my situation. In my instance, the arrears before he left were very small. The pension could have been rolled out and then the arrears explored.
The Chairman: Where is the pension now?
Mrs. Beattie: We think it is still here, but no-one has ever told me it is still here.
The Chairman: You do not have access to it?
Ms Beattie: No.
The Chairman: Why?
Ms Beattie: It is not being paid out, and it is not subject to garnishment until it starts to be paid out. As I said, there are three orders that prevent the payout. We had to tie it up in a Gordian knot. Bill C-41 did not help me because I cannot get an order that would trigger the payment. Even if I did, the amount that is to be paid out on a monthly basis is not worth the price of going to get an order. It would be extremely difficult and costly to get the order. The pension is tied up. I do not foresee anyone getting it unless something like the Manitoba legislation is put into place.
The Chairman: You say the amount is not large.
Ms Beattie: If it were paid out in a lump sum, it would be $100,000, which is something towards a $500,000 debt.
The Chairman: Do other senators have questions?
Senator Maheu: I want to understand something you said earlier. Provincial authorities have absolutely no agreement with the federal government whereby they can help you if, say, your ex-husband was in another province. Is there any way the federal government can gain access to the revenues in those provinces? You said they could not do so for those out of the country. What about interprovincially?
Ms Beattie: I think you would find that people with interprovincial problems find the enforcement agencies are not helpful. My order was registered with the Ontario office very briefly. They got me into more trouble. They did not do anything to help me but they got me into a great deal of difficulty. When agencies use reciprocal orders, they are really reluctant to deal with the difficult cases. They are more concerned with the easy ones because then they appear as successes on their statistics. The people with difficult cases get dealt with when they have time.
Reciprocal agreements, when they are used, can get you into great difficulty because a common reaction to an enforcement procedure is to try a variation proceeding. Those proceedings will be heard, not in the province where the child lives but in the other province, so you can get into considerable difficulties.
I was told that even though there is a reciprocal agreement between Ontario and some of the European nations, if I ever tried to enforce payment, I would end up in a variation proceeding in France, which would get to a certain point and then he would move to Switzerland, and we would have to start all over again. This is why it is really important and more efficient to bring the people back from another province to the province where the child lives, or from another country to where the child lives, because that is where the legal proceedings have taken place.
Senator Maheu: It would take an extradition treaty, then.
Ms Beattie: That is right. To some extent, the passport legislation is intended to try to remedy that problem but I think you need all of the levers because from what I heard at the committee that was studying international child abduction, it was quite clear that you should throw all the levers at once and perhaps one of them will work.
Senator Maheu: I believe Prince Edward Island is having some success with garnishment of licences and passports. You might look into that.
Ms Beattie: Pam Dunlop, who is the Manitoba enforcement director, told me that the threat against a driver's licence has really been the most effective tool for them. I think that is understandable. The passport threat was really intended for more difficult cases.
Senator Maheu: Such as yours.
Ms Beattie: Yes, although I would have done it differently. I do not think the government should have abdicated responsibility to the enforcement agencies for anything to do with passports. It should have been kept within the federal program, but that is neither here nor there.
The Chairman: If there are no further questions, do you have any final comments you wish to make? Unfortunately, two members who as you have observed participate in the committee quite actively, as others do, are out of town, I think with the Joint Committee on Custody and Access. Some of our members are doing double duty.
Ms Beattie: Just to repeat, there are two recommendation I would really like to see come out of this. The first is the criminal offence because I think it would work as a deterrent, and for my kids it would provide the recognition that this is a serious issue. The Criminal Code is our standard of right and wrong.
When I would go to the police or to the employer, they would say, "But he has not done anything wrong." Having this in the Criminal Code would mean they have done something wrong. It recognizes it for what it is, which really is the failure to provide the necessities of life. It is not a money issue between spouses. This is about taking care of your kids.
I thought, if we have some time, I might just read the recommendations that I made on the tax change because they might trigger some questions.
The Chairman: Yes, I see them there. We have five minutes.
Ms Beattie: I recommended, first of all, that the existing deduction-inclusion system be retained if one tax structure is to be applied across the board. You can see I do not agree with the government on this issue, and I do have a tax background.
Second, it was my recommendation that as an optimum, the Income Tax Act be amended so that deduction-inclusion is the rule, unless an order, judgment or written agreement provides that the relevant deduction and inclusion paragraphs of the Income Tax Act are not to apply; in other words, there should be a choice. The old system would be retained, but for the few who would benefit from the new structure, it would be possible if there was a judgment saying that.
There is actual precedent for choice in the Income Tax Act in relation to specific purpose payments. For example, if you are paying tuition, normally that would not be included in the custodial parent's income, but if a judge writes an order saying that it should be or is going to be, then it will be. So there is a precedent already in the sphere of child support for that.
My third recommendation was -- and this is where I will differ from the men's groups -- that any decision to opt out of the existing deduction-inclusion system -- and I say "existing" because I was writing this back then -- be left in the hands of the recipient custodial parent, and that such an election be similar to informed consent. I said that because under the new tax rules, it is the custodial parents who bear the brunt. Because of the guidelines, the old income-splitting benefit will no longer be able to be retained by the non-custodials as they could be under the old system where judges were making all kinds of different awards. The ones who really bear the brunt, depending on which tax system is in place, are the custodial parents and the kids.
I said "informed consent" because there are severe consequences, many of which custodial parents are not aware of. I mentioned specifically RRSP contribution room. Informed consent gets the government off the hook. Also, when you give them the choice, the parents are on the hook. As it is, a lot of these custodial parents wake up at some point and realize they would have been better off had made a different election, and they will point the finger at the Minister of Finance saying that he did not tell them this.
The fourth recommendation I made was that the Revenue Canada review its information for single parents, as well as its advisory services, with a view to making taxation and financial planning a less intimidating subject for custodial parents and for women generally. If women and custodial parents had been educated, I think they would have realized the benefits of the old structure. After I take half an hour explaining the system to some custodial parents, they say, "Oh, now I see how paying taxes can end up giving me more." It is a concept that is very difficult for people to understand.
This is very timely because there was an article in the Star this weekend saying girls lack confidence in dealing with boys and money. It is really true. Women are not brought up to deal with money. I must say in my own case, when I was divorced, I had not a clue. Everything I learned about money I have learned the hard way. What I found is that it is empowering if you can go into Revenue Canada and not have them bowl you over, and if you can go into your bank and have the confidence to make your investments, and if you can fill out your income tax return. It is empowering. I think the government missed out there. They kind of took advantage of ignorance to put in place something that would hurt.
The Chairman: Are you finished with those recommendations? I want to ask you one question before you go.
Ms Beattie: I have two more, one of which relates to enforcement matters, and that is that the government implement a national advanced maintenance child support system. This was part of the alternative federal budget and it was something that I have rather close to my heart because it is like a targeted family allowance. You use the tax structure and whatever is in place to get money from the non-custodial parent and put it through the tax structure to the custodial parent. I have a real soft spot for that particular recommendation because my father was the person who came up with the idea for the family allowance and he is the one who sold it to Prime Minister Mackenzie King. I push that every time I can.
The last recommendation I made was that the government, in order to avoid some of the problems of this new structure, should put in an amendment which would allow custodial parents to deduct their legal fees for enforcement, whether or not they include the child support as income. That is totally at odds with tax rules and, in a sense, one group would have it both ways, and that is the high-income custodial parents who earn $60,000 to $75,000.
The Chairman: I want to ask you this because it is an area where obviously we should be interested. It is in regards to what you say is the laxity of the federal government in dealing with its own employees in these matters. I do not know whether we will have an opportunity or whether it will be useful to have somebody from the federal government -- I am talking about the bureaucracy -- come and testify about this. If we did, can you give me a title? Who would you have come here to this committee to discuss these matters? If you can do so in about 30 seconds, what are the questions you would ask him or her?
Ms Beattie: I would be glad to submit some questions to you.
The Chairman: About the policy.
Ms Beattie: I would go right to the top.
The Chairman: The Secretary of the Treasury Board?
Ms Beattie: The deputy minister at least.
The Chairman: The deputy minister of what?
Ms Beattie: Treasury Board, Foreign Affairs, National Revenue, Finance, Justice.
The Chairman: Somebody has custody of the policy. Is it the Secretary of the Treasury Board with regard to the government's own employees? Is it the deputy minister at the Treasury Board or is it somebody else? We can invite them all but whether they will show up is another question.
Ms Beattie: The problem I have had, and this is why it has taken 15 years, is that you cannot find the person with the policy.
The Chairman: This is a fairly long-term proposition we are into here. I hope this committee will be able to make some recommendations before the summer break. The guidelines have been in place only since last May. We will have a report and perhaps some recommendations before the summer break. My thought, subject to what the committee thinks, of course, is that we might come back at this about this time next year. You have raised some very important issues here and we will consider them now where appropriate. If we do not have an opportunity to talk to bureaucrats before the summer break, that is something we might plan for a year from now. So long as this session of Parliament continues, this committee is operating under a mandate to monitor the implementation of the child support guidelines.
Thank you very much, Ms Beattie. I am sure we will see you again. We would appreciate receiving any information you may have in terms of the policy and the implementation of that policy by the federal government with regard to its own employees.
Ms Beattie: The one question that springs to mind to ask is whether the federal government is subject to provincial court orders. For example, where somebody is restrained from dealing with a pension, will the government recognize that order, or is the government a law unto itself where it is not bound by anything?
The Chairman: Let us have something in writing on that and we will try to follow it up.
[Translation]
We now have the pleasure of welcoming representatives of the Barreau du Québec. With us are Suzanne Vadboncoeur, Director of Research and Legislation, Barreau du Québec, and Secretary of the Committee of the Bar on Family Law; Miriam Grassby, Chair, Committee of the Bar on Family Law; Jean-Marie Fortin, Member of the Committee of the Bar on Family Law and Dominique Goubau, Member of the Committee of the Bar on Family Law.
Ms. Suzanne Vadboncoeur, Director of Research and Legislation, Barreau du Québec, Secretary of the Committee of the Bar on Family Law: Mr. Chairman, we have been invited here as representatives of the Barreau du Québec to speak to you about the child support regulations in force in Quebec rather than about the federal guidelines. The Senate committee is interested in knowing how the Quebec system works and obviously, in most cases in Quebec, as you know, the Quebec guidelines apply given that in the vast majority of cases, the two parents reside in Quebec. I will summarize for you the main components of the Quebec system.
Several years ago, Quebec decided to draft its own regulations respecting the determination of child support payments. The guidelines, which can be found in the Regulation Respecting the Determination of Child Support Payments enacted on April 9, 1997, by order 484-97, draw their legal basis from an Act to Amend the Civil Code of Quebec and the Code of Civil Procedure respecting the determination of child support payments, commonly referred to as Bill 68.
The legislation and the regulations came into force on May 1, 1997.
Pursuant to the legislation, the Quebec guidelines apply to all applications for a support order brought by a parent in respect of a minor child or an adult child who is not able to support himself, whether it be as a result of a legal separation, divorce or common law relationship. However, both parents must reside in Quebec, failing which the federal regulations apply, specifically the table used in the province in which the parent making the support payments resides.
The Quebec model calls for the use of a table which determines the amount of support payable based on the disposable income of the two parents and the number of children, factoring in certain child-related expenses such as daycare, postsecondary education expenses and special expenses, as long as these are considered reasonable under the circumstances by the court. Special expenses include medical expenses, expenses for primary or secondary studies or for extracurricular activities linked to the needs associated with the particular situation experienced by the child. The amount of support payable is then determined based on a proportion of the income of each parent in relation to overall family income and based on the type of custody under consideration. There are various types of custody that can be granted in Quebec: exclusive custody, shared or joint custody or even a combination of the two. The final consideration is the amount of time that the non-custodial parent intends to spend exercising his access rights. If exercising these rights accounts for between 20 per cent and 40 per cent of the custodial time, then the non-custodial parent will benefit from "visiting and prolonged outing rights" which could result in a reduction in the amount of support that he would otherwise be required to pay.
All of these calculations are made using a form. One difference between the Quebec model and the federal model is the use of a form contained in Schedule I of the above-noted regulations, a form which parents are required to complete, either jointly or separately, pursuant to the provisions of article 825 of the Code of Civil Procedure. The court will not consider an application for child support which is not accompanied by the prescribed form and documents or consider a challenge to this application if the fault lies with the respondent.
The parties may agree on an amount that departs from the amount provided for in the guidelines; in such instances, they must explain the reasons for this variance in their agreement. They are required to do so under article 825.14 of the Code of Civil Procedure and in accordance with Part 7 of the form in question. However, the court must verify that the amount of support agreed upon is sufficient to meet the needs of the children. Similarly, a court that orders support payments which do not correspond to the agreement worked out by the parties or, in the case of an application that has been challenged, do not correspond to the information provided by the parties in the form, must justify its decision by referring to the relevant parts of the form.
One of the parties may invoke "extreme difficulties" in requesting an increase or decrease in the amount of support calculated pursuant to the regulations. This concept is found in article 587.2 of the Civil Code of Quebec. In accordance with the second paragraph of this article, the court may grant a request for a reduction or increase in the amount of support established by the tables if it is of the opinion that maintaining support payments at the current level would, under the circumstances, cause the parent "extreme difficulties". Certain examples are provided: difficulties resulting from support obligations assumed in respect of persons other than the child, expenses related to the exercise of access rights or debts "reasonably incurred for the needs of the family." The value of a parent's assets or of the child's resources may give the court reason to depart from the amount established in accordance with the regulations.
Finally, the Quebec legislator has chosen to discriminate in favor of the child rather than the spouse or ex-spouse. Paragraph one of article 825.13 of the Code of Civil Procedure as enacted by Bill 68 states the following:
The support to be provided to a child is determined without regard to support claimed by a parent of the child for himself.
Moreover, section 8 of the regulations stipulate that unless the assets of the non-custodial parent can justify a higher amount, the support payable by a parent in respect of his child may not exceed 50 per cent of his disposable income. This is nonetheless a considerable amount.
The amounts set out in the table found in Schedule II of the regulations will be indexed on January 1 of each year. I have brought along a copy of the indexation table, if you are interested in looking at it. I also have copies of the regulations in French and in English.
From a procedural standpoint, the form, which in many respects resembles an annual income statement, contains nine parts, one of which is the statement of parents' income. Each parent is required to provide specific information about his or her financial situation. Section 9 of the regulations gives a definition of "annual income" which my colleague Jean-Marie Fortin will focus on later. Parents must attach to the form a pay slip or financial statements, depending on whether the parent is employed or self-employed, as well as a statement of income and expenses respecting the immovable, if the parent earns rental income. The parent must also attach a copy of his or her provincial and federal income tax returns and the assessment notices for the last fiscal year. Finally, he or she must also complete part 8 of the form which gives a detailed statement of each parent's assets and liabilities.
It should be noted that when the information stated in the form or in the documents is incomplete or contested or when its accuracy has been called into question, the court may establish the income of a parent. The court may do so pursuant to article 825.12 of the Code of Civil Procedure. This concludes my overview of the legislative provisions and applicable rules under the Quebec system.
My colleague Dominique Goubau will now talk about the fundamental differences between the two systems, that is between the federal guidelines and the Quebec regulations.
The Chairman: Would one of your colleagues care to add something to that?
Mr. Dominique Goubau, member of the Committee of the Bar on Family Law, Barreau du Québec: At this time, I would like to point out some of the basic differences between the Quebec child support guidelines which have been in effect since May 1 of last year and the federal guidelines. I will not highlight all of differences, only the major ones which make the Quebec system fundamentally different.
In many respects, the two systems are similar. I will be focusing on the distinguishing features.
The first distinction, as outlined in the presentation by my colleague, Ms Vadboncoeur, is the fact that the Quebec guidelines formally take into account both parents' income in the calculation of support payments, that is the income of the custodial parent as well as that of the non-custodial parent. Unlike the federal guidelines, the Quebec guidelines are not based on the assumption that the custodial parent uses a proportional amount of his income to meet the needs of the child.
Both incomes are combined to fix an amount in the table and to determine a proportional amount that the non-custodial parent shall assume in the form of support. Therefore, when both parents earn an income, both incomes are taken into consideration.
Consequently, we note a series of procedural differences. For instance, a number of documents must be submitted and these differ somewhat from those required to be submitted in accordance with the federal guidelines.
The second major distinction is the fact that the amount of custodial time assumed by each parent is taken into account when determining the amount of child support payable. The Quebec guidelines, unlike the federal guidelines, introduce the concept of access rights, visiting rights and prolonged outing rights. Quite apart from the concept of custody, when the non-custodial parent exercises visiting rights which correspond to between 20 per cent and 40 per cent of the custodial time, this will affect the amount of child support payable. This impact must not be overestimated in that only any proportion above 20 per cent will be considered for the purpose of reducing the amount of child support. For example, if the access rights of the non-custodial parent correspond to 25 per cent of the custodial time, the maximum impact on the amount of child support payable will be five per cent.
Only basic needs are affected, along with the basic amount established in the tables, the same as those used at the federal level. Accordingly, the percentage of overall custodial time has no impact on other or special expenses such as daycare, extracurricular activities and education expenses not affected by the amount of time the child spends in the presence of the non-custodial parent. This distinction must be born in mind when comparing the two systems.
In the brief by the Barreau du Québec concerning the Quebec model for determining child support payments which dates back to August of 1996, the impact of joint custody and the amount of custodial time assumed by the non-custodial parent is discussed on several occasions, and specifically on pages 7 and 8. When this document was drafted, the Barreau was reacting to the first draft regulations which contained a reference to the non-custodial parent assuming between 20 per cent and 30 per cent of the custodial time, whereas the regulations were subsequently amended and the percentage changed to between 30 per cent and 40 per cent. In other words, once the amount of custodial time exceeds 40 per cent, the arrangement is deemed to be a shared custody arrangement and when access rights account for between 20 per cent and 40 per cent of custodial time, this will be considered extended access rights with a possible impact on the amount of child support payable. The percentage has been increased from 30 per cent to 40 per cent, which appears to be a much more realistic figure.
The third distinction, which may be perceived rather than genuine, although it bears mentioning, is the possibility for the parent to argue extreme difficulties. The Quebec guidelines, like the federal guidelines, include a safety valve of sorts whereby support payments can be increased or reduced if one parent faces extreme difficulties. A number of definitions exist as to what constitutes "extreme difficulties."
The federal guidelines stipulate that the parent who is the most economically disadvantaged or the household that is the most economically disadvantaged may argue extreme difficulties. This safety valve prevents just anyone from arguing extreme difficulties and endangering in the process the very principle of the child support determination system. There is no such safety valve in the Quebec guidelines which make no provision for comparing income levels or household standards of living. Theoretically, income levels and household standards of living have no impact. Still theoretically, this means that the more financially secure parent could, despite his situation, apply for a reduction in the amount of child support payable arguing extreme difficulties, this despite the fact that economically, he is better off than the other parent. When we analyze how this principle has been applied by the courts over the past year or so, we note that although no such principle requiring a comparison of income levels is included in the Quebec regulations, the courts nevertheless tend to compare income levels anyway. However, they do not to do so as rigorously as in the case of the federal guidelines. The federal guidelines spell out a fairly complex procedure for comparing income levels. No such procedure exists at the Quebec level. This being said, the courts have a tendency to take a hard-line approach when dealing with the more financially secure parent who is arguing extreme difficulties. The courts are more inclined to accept this argument when raised by the parent who financially is less well off. This stands to reason, even though there is no specific provision for invoking "extreme difficulty" in the Quebec regulations, contrary to the federal system.
The final minor distinction, as already mentioned by Ms Vadboncoeur, is the provision whereby the amount of child support payable, barring exception, may not exceed 50 per cent of the disposable income of the parent paying the support. There are exceptions in the case of very high income earners. There are also exceptions when there is no possibly way to compare the assets and real estate holdings of a parent with those of the other parent. In such instances, the court could, given a parent's assets, order that parent to pay support in an amount that exceeds 50 per cent of his income.
These are the basic differences between the Quebec regulations and the federal guidelines. This being said, we can argue that the two systems are similar in many respects.
[English]
Senator LeBreton: It strikes me that this system of basing this on the income of both parents makes a great deal more sense. The system you are using seems much more civilized.
[Translation]
The Chairman: One moment, Senator LeBreton. Would the witnesses care to comment further before we proceed?
Mr. Jean-Marie Fortin, member, Committee of the Bar on Family Law: As we address your questions, we can also comment on income levels.
Ms. Grassby: Mr. Goubau highlighted the major differences between the two systems. However, I would like to point out that there are also differences in the amount of child support that can be ordered. In the case of incomes below $80,000, there is not a great deal of difference between the two systems. However, in the case of incomes totalling $80,000 and up, we do note major differences. Recently, we had a case where the father earned $198,000, whereas the mother had no income at all. According to the indexed federal scales, the father was required to pay $1,410 in child support, whereas under the [provincial] scales, he would have had to pay $2,156. We are talking about a fairly substantial difference here, over $640 per month.
For example, consider a situation where the woman works and earns $50,000. Based on the federal scales, the father would be required to pay X amount, whereas the woman would pay in accordance with her income level. According to the federal scales, the father would still be required to pay $2,156 even if the mother earned $50,000, and presumably, the mother would contribute $630 toward child support, for a total of $2,786 in child support.
In Quebec, the amount listed in the tables is the total amount that parents contribute jointly for child support. If the father earns $190,000 and the mother $50,000, the father would have to contribute only $1,281 toward child support. The overall contribution would be set at $1,560 instead of at $2,786.
At these income levels, there is nevertheless a considerable difference between the two systems and we have not yet begun to look at the reasons for this. The "excessive difficulty" argument may perhaps be invoked, but this is still far from clear. We have encountered problems in the case of children from families with higher incomes.
[English]
Senator LeBreton: It seems to make sense, because if the custodial parent has income, obviously some of that income will be going to the benefit of the child. To me, it just makes a lot more sense.
How do you take into account the time spent by the non-custodial parent, in terms of how it impacts on the payments of the non-custodial parent? What formula do you use? You talked about 20 to 40 per cent. The custodial parent has some ongoing expenses related to the care of the children that perhaps the non-custodial parent does not have. How do you take into account how the non-custodial parent's contribution is lessened as a result of 20 to 40 per cent of the time spent with the children? I want to know what kind of formula you use or how you figure that out.
[Translation]
Mr. Goubau: There are two things we need to consider. First, as I explained earlier, there is the corresponding impact when the amount of custodial time exceeds 20 per cent. This percentage, whether five, six or seven per cent above this threshold, will be applied taking into account the proportional income of both parents. In the case of access rights which correspond to 25 per cent of the custodial time, 5 per cent is a maximum, assuming that the non-custodial parent is the sole income earner. If that parent earns only 60 per cent of the total income, the impact on the amount of child support he pays will be 60 per cent of this five per cent.
This in no way alters the fact that the Quebec regulations, like the federal guidelines, provide that if other special expenses must be incurred in the exercise of access rights, the non-custodial parent can argue that the special expenses have caused him or her "excessive difficulties." The federal guidelines provide for this, although the non-custodial parent is not required to demonstrate that his income level is lower than that of the custodial parent. These two points must be taken into account in assessing the impact of custodial time.
[English]
Mr. Fortin: This is technically taken care of by the form itself. The calculations are mathematically done in the form. The problem we have, which is actually still in the court, is how you calculate the amount of time the non-custodial parent has with his child. The law right now says it must be calculated in days, but there is a trend in the courts toward using hours. If you play with those concepts, you might arrive at more or less than 40 per cent time, if you take into account hours or days. That is the problem we have in Quebec. It is not the calculation; the formula provides for that. It is how to calculate the time itself. When you have your answer, the form takes care of it.
Senator LeBreton: One of the problems this committee has is how to define time spent. Does it include hours sleeping? It is difficult to calculate in terms of real time spent.
Ms Grassby: It becomes a little more complex for us in Quebec because not only is it the federal 40 per cent or over, but if you have 22 per cent of the time, you have your 2-per-cent reduction. In many cases, it becomes an object of discussion and negotiation.
There is also the other element of the problem, and I am not sure whether Mr. Goubau covered it. You were thinking about it when you were asking your question. The non-custodial parent who takes a child has some expenses. If he or she spends more time, it does not seem abnormal for there to be some reduction, but that does not necessarily mean that it corresponds to the custodial parent having fewer expenses. There is no way of saying, for example, if the non-custodial parent is taking the child 37 per cent of the time and getting the 17-per-cent reduction, whether he will pick up paying for 17 per cent of clothes or 17 per cent of certain activities. No one has figured out the solution to that, whether it is in the shared custody over 40 per cent federally, or provincially. It is not something that has been dealt with yet.
[Translation]
Senator Ferretti Barth: I have looked at the forms and I find them most confusing. Parents who are required to complete these forms need someone to advise them. I think that we should look at these forms and simplify them because the people who will be required to complete them are not experts. I find them quite complex.
Could you explain to me how, in the Quebec regulations, the income of the custodial parent is calculated? How do you proceed?
Mr. Fortin: Income is defined in the legislation and once it is calculated, for each parent, we subtract the sum of $9,000 which corresponds to a basic amount which a parent must earn in order to pay child support.
At the federal level, this basic amount is established by law and set out in the form. With respect to the federal guidelines, a parent who earns less than $6,000 will not pay any child support.
Senator Ferretti Barth: Who pays the child support then?
Mr. Fortin: No one will be required to pay child support.
Senator Ferretti Barth: Does the responsibility for child support then fall to the government?
Mr. Fortin: In such instances, child support is paid by the provincial governments, pursuant to social security programs in place. Once the base amount of $9,000 has been subtracted from the taxable incomes of each parent, two other deductions are allowable, unlike the federal guidelines which allow other deductions. These allowable deductions are union dues and professional dues. Once these amounts have been determined, we arrive at an amount which corresponds to the disposable income of each parent. These amounts are added to give us the total disposable income of both parents. Working from the tables, we calculate the basic parental contribution according to the percentage of disposable income of both parents. If the woman earns $40,000 and the man $60,000, this gives us 40 per cent and 60 per cent respectively, for a total of $100,000; accordingly, 40 per cent of the basic parental contribution must be assumed by the woman and 60 per cent by the man. If the amount of child support totals $10,000, the woman must contribute $4,000 and the man, $6,000. Once this exercise has been completed, we look at the custody issue. If the woman has been granted sole custody, the man will be required to pay the woman $6,000.
Senator Ferretti Barth: An additional $6,000?
Mr. Fortin: That is the total amount payable. The table lists the cost for one child. A child whose parents have incomes like this has needs totalling $10,000. What proportion of this $10,000 must each parent assume? We look at the percentage of each parent's income. If the woman has custody, and the amount of child support has been pegged at $10,000, then she must assume $4,000 of this total amount. If the woman has sole custody, then the man will pay the woman $6,000.
Senator Ferretti Barth: What happens in the case of shared or joint custody?
Mr. Fortin: A different mathematical calculation is done. Last year, I toured Quebec and gave courses prior to May 1 on the federal and provincial guidelines. Looking at the provincial form, my natural tendency was to say that the federal formula was simpler!
I have been working on a Canadian program for one year. I developed a software program in Quebec for doing the calculations required on the form. At the federal level, income is a much more complex concept. The calculations are even more complicated to do. If you take the Justice Department guides and look at some of the calculations that are done, when it comes to excessive difficulties, the calculations are even more complex. A year later, I have come to the conclusion that the process followed in Quebec is simpler. The mathematical formula used may seem complicated in some respects, but it simplifies the actual calculations that must be done.
In response to Senator LeBreton's earlier comment, the fact that both parents' incomes are given equal consideration in Quebec is a much more humane and pleasant way to proceed. It emphasizes the fact that both parents have a responsibility to contribute to child support.
The problem in Quebec, and my colleague Ms Grassby alluded to it, is the contribution amounts listed in the tables. These amounts are much lower, not only when income levels are very high, but also when they are very low. The differences between the amounts listed in the federal and provincial tables are quite striking.
If you look on page 11 of our brief, you will note that at the time, I drew up a table. You can see that there are significant discrepancies between the federal table applicable in Quebec and the Quebec table. Our approach may be more equitable, but when we look at the actual figures, we note that the result in Quebec is something else.
In defence of the provincial guidelines, I have to say that it is easier to make a case for special expenses; this is one area where perhaps some ground can be made up. However, there is still a problem in Quebec in terms of the very low amounts listed in the tables. However, I do favor the Quebec system which is simpler. The formula used may seem complicated at first, but in reality it is not.
Senator Ferretti Barth: I must congratulate you. The Quebec system is better. It is more humane and more considerate of those who are going through this experience.
Ms. Grassby: I do not know whether Mr. Fortin mentioned this, but one of the benefits of his software program is that he has developed a tool that people actually use.
Madame Senator was correct when she said that the form appeared complicated. However, it is relatively easy to provide the basic information requested. Lawyers, judges and officers of the court work with this document.
When people earn specific salaries, it is very easy to use this software to calculate the amount of child support payable. The program and the scales simplify the calculation process.
A word of caution: the federal and provincial tables cannot be read the same way. With respect to the provincial tables, an income of $50,000 translates into $6,090 in support payable for one child, whereas in the federal tables, an income of $50,000 translates into approximately $4,000 per child per year. The amounts payable are different. This means that in Quebec, parents whose combined income totals $50,000, or even slightly more than this, will be required to pay this amount in child support, because of the $9,000 deduction. That would be the total amount of child support payable, whereas at the federal level, the amount quoted represents only the share of the non-custodial parent. To this we must add the amount payable by the custodial parent. The amounts listed in the tables cannot easily be compared.
The Chairman: With respect to the application of the guidelines and in particular to income determination, a witness suggested to the committee several weeks ago that tax returns be made available to provincial officers in charge of applying the regulations. Obviously, this raises other questions such as the right to privacy. Does the Quebec Bar have an opinion on this?
Mr. Fortin: The Quebec Department of Revenue has a system for collecting child support in place. When this bill was first tabled in 1995, one of the Bar's biggest concerns -- especially for a tax specialist like myself -- was the intrusion by the Department of Revenue into people's private lives for reasons other than family-related ones. The revenue department told us at the time that it was going to create a special division to deal with the child support issue. We subsequently realized that there was no barrier between this division of the revenue department and the revenue department as such. Which means that the revenue department already intrudes into people's private lives. The Quebec Department of Revenue already has responsibility for the collection and payment of child support.
This system is already in place. A taxpayer cannot call the department and ask for information on another taxpayer who may be a spouse or future ex-spouse. Such information will not be disclosed. However, the revenue department does possess information of this nature.
The Chairman: Unfortunately, one of our colleagues, Senator Jessiman, is not here today. He, along with our colleagues senators Pépin, Cools and Cohen, is a member of a special joint committee on child care which is travelling across the country.
Senator Jessiman wrote a letter to the Deputy Minister of Justice, a copy of which I presented several minutes ago to Ms Vadboncoeur, arguing that the definition of a child of the marriage as contained in the guidelines is not in keeping with the provisions of the Divorce Act. I will understand if you refrain from expressing an opinion immediately on this subject, but have you had an opportunity to read this letter and have you formed an opinion?
Mr. Goubau: I have just now read this letter. Admittedly, there is a difference, which I would qualify as technical, in the definition given of a dependent child in the guidelines and the definition contained in the Divorce Act.
This definition could be construed as giving adult children or at least adult children who are no longer dependent an opening to request support payments. When I read everything that has been written on the subject by authors or legal precedents, I see that people in legal circles have no qualms whatsoever about saying that the definition in the guidelines is consistent with the long-held interpretation of the definition of "dependent child" as contained in the Divorce Act. The only distinction made since May 1, 1997 is that instead of talking about a 16-year-old child, the term "dependent child" can now apply to an 18-year-old. As spelled out in the guidelines, an 18- year-old adult child in need could apply for support, and this is consistent with the notion of "dependent child" as we have always known it, that is a child who, to all intents and purposes, is dependent on the parent claiming support. To my knowledge, this is the way all authors understand the term and I am confident that this is the interpretation that the courts will give as well. If somehow we conclude that an adult child who lives on his own and who is no longer dependent on a parent can invoke the guidelines or the Divorce Act to claim support, then we are going to encounter some problems. However, I do not see how the courts could come to this conclusion.
Senator Ferretti Barth: Has the approach that you have just described for us been generally well received in Quebec?
Mr. Goubau: Yes, it reflects the status of the law in Quebec. In the province, direct line parents share responsibility for child support, regardless of the age of the child. A 20-year-old child may, albeit under more stringent conditions than an eight-year old, request some form of child support, just as a parent may claim support from his child and we have seen cases of this happening. The definition provided in the guidelines is an extension of what we have seen with the reform of the Divorce Act. It is consistent with the status of the law in Quebec regarding this matter.
Senator Ferretti Barth: Why did we not receive a copy of the letter that Senator Jessiman sent to the department?
The Clerk: This letter was sent before you became the member of this committee. That explains why you did not get a copy.
Senator Ferretti Barth: But that was two or three months ago.
The Clerk: I can take that matter up with you after the meeting.
Senator Ferretti Barth: It is not right to discuss something that committee members are unfamiliar with. We did not agree to send this letter. Mr. Chairman, I recommend that we receive copies of all letters having to do with decisions of this committee.
The Chairman: I am sure that you all know Senator Jessiman's views on the subject. He has brought the matter up on several occasions in committee. Are there any further questions?
Mr. Fortin: The federal as well as the Quebec guidelines provide details regarding financial responsibility for children, but there are no clear rules as to who is responsible for managing the needs of the children.
In a shared custody situation, the father pays so much to the mother, although the children split their time equally between the two parents. Given the difference in income, the father awards X amount to the mother in child support. However, the tables list the cost of caring for a child. There is no mention of who manages these sums of money. This can be a source of debate and friction between the parents. Would it not be possible to indicate to some extent which parent must assume responsibility for managing the needs of the children?
Take, for example, a father who says that he is going to buy his child a $275 pair of running shoes. The mother may disagree with that decision, since she has to pick up half the tab. The Quebec regulations are clearer than the federal guidelines on the issue of how financial responsibility is to be shared or on what the parents' contribution should be when it comes to their children's needs, but they are not clear on who exactly is responsible for managing these expenses. This is a real problem which, in my opinion, can easily be resolved with legislation.
If the parties fail to come to an agreement, the court should step in and decide who is responsible for overseeing the needs of the child.
Senator Ferretti Barth: For example, if the mother has custody of the children, she should be the one to make the decisions when it comes to the children's needs. That goes without saying.
Mr. Fortin: Of course, that is true in a classic case of sole custody. However, in a case of joint custody where one parent has custody more than 40 per cent of the time, and the other parent, between 20 and 40 per cent of the time, then the amount of support payable decreases, the assumption being that the father is going to assume more of the expenses. It has yet to be determined who administers these expenses. When there are daycare costs involved, who pays these costs? Is it necessarily the mother? In a joint custody situation, does the father pay the child's daycare costs at school when the child is with him or is it the mother who pays?
Ms. Grassby: That is the problem we encounter when the amount of child support is reduced as result of an increase in custodial time. The issue of who is responsible for paying certain expenses, which often do not change, is not confronted. You are quite right to say that the assumption is that the custodial parent is capable of managing his or her own budget. If you have a joint custody situation where the non-custodial parent argues that he is responsible for only 50 per cent of these expenses because he only has custody 50 per cent of the time, it does not change the fact that the child still has 100 per cent of the same expenses. One of the parents might then say: I refuse to buy the child any clothes. There is no longer any order. Since the child must have clothing, one parent must then assume all of the costs and cannot claim the difference from the other parent.
[English]
The Chairman: Thank you very much. The question of the differences between the Quebec and federal guidelines has come up on a number of occasions and colleagues have commented on them in various ways. Your testimony today has been extremely helpful. Thank you for coming.
Colleagues, we meet tomorrow at 3:30 p.m. to continue our study. It is unlikely that I can be present tomorrow. If the acting deputy chairman, Senator Kenny, is not able to preside, the clerk will take you through the process of choosing an acting chairman for tomorrow's meeting only.
The committee adjourned.