Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Issue 15 - Interim Report
The Senate
THE FEDERAL CHILD SUPPORT GUIDELINES
INTERIM REPORT
of the
Standing Senate Committee
on Social Affairs, Science and Technology
Chair
The Honourable Lowell Murray, P.C.
Deputy Chair
The Honourable Peter Bosa
June 1998
MEMBERSHIP
The Standing Senate Committee on Social Affairs, Science and Technology :
The Honourable Lowell Murray, Chair
The Honourable Peter Bosa, Deputy Chair
and
The Honourable Senators:
Cohen, Erminie J. Cook, Joan Cools, Anne C. Ferretti Barth, Marisa *Graham, B.A., P.C. (or Carstairs, Sharon) Johnstone, Archibald |
Kenny, Colin (Acting Deputy Chair) Lavoie-Roux, Thérèse LeBreton, Marjory *Lynch-Staunton, John (or Kinsella, Noel) Maheu, Shirley Phillips, Orville H. |
*Ex Officio Members
Nadine S. Huggins
Acting Clerk of the Committee
Former members:
The Honourable Senators Jean B. Forest, Duncan J. Jessiman, Q.C. (retired) and Haidasz, Stanley, P.C., M.D. (retired).
Staff from the Research Branch of the Library of Parliament:
Margaret Young, Law and Government Division.
ORDER OF REFERENCE
Extract from the Journals of the Senate of Wednesday, November 5, 1997:
The Honourable Senator Murray, P.C., moved, seconded by the Honourable Senator Phillips:
That the Standing Senate Committee on Social Affairs, Science and Technology be authorized to monitor the implementation and application of Chapter 1, S.C. 1997, 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.
The question being put on the motion, it was adopted.
Paul Bélisle
Clerk of the Senate
TABLE OF CONTENTS
GENERAL VIEWS OF THE WITNESSES
A. Special or Extraordinary Expenses ("add-ons")
E. Access to Revenue Canada Information
F. Child Support and the Income Tax System
G. Parents’ Income for the Purpose of the Table Amounts
APPENDIX / ANNEXE : LIST OF WITNESSES / LISTE DES TÉMOINS
THE FEDERAL CHILD SUPPORT GUIDELINES: INTERIM REPORT
In 1997, amendments to the Divorce Act effected by Bill C-41 significantly changed how child support awards are calculated in Canada. Enacted as regulations pursuant to the Divorce Act, the Federal Child Support Guidelines came into force on 1 May 1997. They had been under study and discussion, although not without controversy, for almost a decade prior to their enactment. At the same time, amendments to the Income Tax Act changed the longstanding treatment of child support payments. Henceforth payers of child support would no longer deduct the amounts from their income for tax purposes, and recipients no longer include the amount of child support payments in their income for tax purposes. *(note: The tax changes apply to: awards after May 1997, awards re-opened on the basis that the Guidlines constitute a change of circumstances, and existing awards where both parties consent to a change in the tax treatment. Spousal support was not affected by the changes.)
Although the Federal Child Support Guidelines are subordinate legislation enacted under the authority of the federal Divorce Act, their actual applicability and influence is much broader than that. Most provinces have adopted for their own use in provincial family law matters either the federal Guidelines as they stand, or as slightly modified. The federal Act permits the Governor in Council to authorize provinces to apply their own guidelines to divorces, provided they are comprehensive and deal with the matters required by the Act to be included in the federal Guidelines. Only Quebec has developed its own, substantially different Guidelines.
In the winter of 1997, this Committee studied Bill C-41. At that time, the Committee had a number of concerns about the bill and about the Federal Child Support Guidelines to be made by regulation pursuant to the amendments to the Divorce Act. As a result of its concerns, the Committee received commitments that two initiatives be pursued in the near future. The first commitment, by the then Minister of Justice and the then Leader of the Government in the Senate, was to establish a joint parliamentary committee to study issues relating to child custody and access under the Divorce Act, questions that had arisen repeatedly in the course of the C-41 hearings but that were not dealt with in the bill itself. The Special Joint Committee on Child Custody and Access was indeed formed for that purpose, and its work is well underway. It is expected to report in November 1998.
The second commitment by the government was for support for this Committee to seek a mandate to monitor the implementation and application of Bill C-41 and its associated Guidelines. On 5 November 1997, the Committee duly received an Order of Reference from the Senate to pursue this study.
The Committee began its work in December 1997 and continued through the winter and spring of 1998. All told, the Committee heard from close to 20 groups and individuals. On the government side, we heard from representatives from the Child Support Team at the Department of Justice, the Child Support Advisory Committee, and the Federal/Provincial/Territorial Task Force on Implementing the Child Support Guidelines. Witnesses not connected to the government included the Canadian Bar Association, the Barreau du Québec, lawyers in private practice, groups representing primarily fathers, groups representing primarily mothers, groups representing both custodial and non-custodial parents, individuals affected by the system, and an accountant who is the author of one of the software programs designed to assist parties apply the Guidelines.
The Committee wishes to emphasize that this Report is an interim one. It is our first, but not our final Report. Our examination of this fundamental change in how our society establishes appropriate child support rules and amounts is continuing. After all, the Guidelines have been in effect for just over one year and may still be considered as a work in development. We feel that the Senate is an ideal body to undertake this ongoing monitoring role, and intend to take it very seriously.
We note that the government and Parliament wanted the Guidelines to be closely monitored as well. Bill C-41 amended the Divorce Act as follows:
28. The Minister of Justice shall undertake a comprehensive review of the provisions and operation of the Federal Child Support guidelines and the determination of child support under this Act and shall cause a report on the review to be laid before each House of Parliament within five years after the coming into force of this section.
We wish to make a distinction with regard to the above statutory duty placed on the Minister of Justice. Although the Minister must table a comprehensive report within five years, nothing prevents needed changes to the Guidelines from being made before that time. Indeed, the statute speaks only of a report; the implementation of amendments could push the timetable for actual change well beyond the five-year period.
We are aware that some minor amendments have already been made to the Guidelines, but we speak here of more substantive matters. A significant number of our witnesses felt that five years was too long a period to wait to make needed amendments. We agree with that position. Nevertheless, we take note of those who urged caution in concluding that modifications are necessary before, in effect, the dust has settled. In this report, we have thought carefully about this question of timing, and believe we have made appropriate distinctions between those matters we think bear close scrutiny but about which a decision on amending the Guidelines can be deferred, and those issues that need more immediate and concrete attention.
We urge the government to make this distinction as well. We are aware that the Department of Justice’s consultation process is ongoing and that they are monitoring the caselaw and other relevant developments carefully. We recommend that once they conclude that a change to the Guidelines is warranted, it be made. In this context, however, we make one very important request. In view of this Committee’s initial and ongoing interest in this field, we strongly urge that no changes be made without consulting us.
Recommendations
1. The government should introduce amendments to the Federal Child Support Guidelines when the need for them is evident, rather than waiting for the results of the comprehensive review at the five-year mark.
2. Before the government makes any substantive changes to the Federal Child Support Guidelines, the Committee strongly recommends that they consult with the Standing Senate Committee on Social Affairs, Science and Technology.
GENERAL VIEWS OF THE WITNESSES
Although a few of the Committee’s witnesses were opposed even to the idea of child support guidelines, the rest of the witnesses spoke positively about them to a greater or lesser degree. Most agreed that the Guidelines, although needing clarification or modification in at least several respects, were, even at this early date, proving their worth and were achieving most of the goals established for them. By replacing the previous case-by-case litigation model, it was recognized that the Guidelines have introduced a degree of objectivity into the process of settling child support issues, although there was some disagreement about the degree to which individual cases were actually easier to settle. This fact is largely attributable to those provisions of the Guidelines that permit deviation from the table amounts. Witnesses pointed out, not surprisingly, that in these cases litigation under the Guidelines was frequent.
It became apparent to the Committee early in the study that several areas of the Guidelines were of general concern in these early days of implementation. Not surprisingly, these were issues that had appeared problematic to the Committee when Bill C-41 and the draft Guidelines were before the Senate for consideration prior to their coming into force. In this part of the report we will explore these issues in some depth.
A. Special or Extraordinary Expenses ("add-ons")
Section 7 of the Guidelines is headed "Special or extraordinary expenses." It states that either spouse may request an amount of money to cover certain specified expenses. The factors to consider in this regard are the necessity of the expense in relation to the child’s best interests, and the reasonableness of the request, having regard to the means of the spouses, the means of the child and the family’s spending pattern prior to the separation. It is stated as a principle that, if the expense qualifies, the amount is to be shared by the spouses in proportion to their respective incomes, after deducting any contribution made by the child.
The specified expenses are: child care expenses; that portion of medical and dental insurance premiums attributable to the child; major medical expenses; extraordinary expenses for primary or secondary school education or for any educational programs that meet the child’s particular needs; expenses for post secondary education; and extraordinary expenses for extracurricular activities.
Many of the Committee’s witnesses focused on this section as one of the most problematic in the Guidelines, although only parts of it were criticized. To begin with the heading of the section – Special or extraordinary expenses – we agree with the witnesses who noted an ambiguity in that some of the listed expenses, child care, for example, were not special at all. The Committee agrees with this comment, and feels that the purpose of the section would be clearer if the heading were changed. We suggest: "Additional or extraordinary expenses."
As noted, most of the expenses listed in section 7 occasioned little comment. With few exceptions, our testimony was that child care expenses, health premiums and major health expenses were not generally problematic. One witness pointed out that health premiums were such small amounts that the Committee wonders whether it is worthwhile retaining them as an additional expense. Another witness noted an apparent problem regarding child care when a recipient parent does not claim tax relief on the amounts paid to a child caregiver. We note, however, that the payer parent has a right to the benefit of any tax deduction that the recipient is eligible for, so we feel that this issue is dealt with adequately by the Guidelines in their current form.
On the other hand, it is fair to say that a significant number of witnesses noted widespread confusion over the meaning of "extraordinary" in connection with school expenses, educational programs and extracurricular activities. Because the term is not defined, and its meaning is not immediately apparent from the wording or the structure of the section, conflicting interpretations of the word have arisen among lawyers, judges and lay people alike. As a result, a number of witnesses told us that the provision promotes conflict and litigation.
Under this provision, some parents are apparently attempting to collect proportional reimbursement for any and all extra school and extracurricular expenses, whatever their nature. Others insist that only expenses that are exceptional in relation to the particular activity come within the section. Some judges apply an objective test, others a subjective test.
In the face of this confusion, the Committee has concluded that the meaning of the term "extraordinary" should be clarified. This does not seem to be one of those cases where the wise choice would be to wait for the courts to sort things out. The caselaw itself is taking completely contradictory views, and it may be years before a definitive approach is established. Meanwhile, lawyers are unable to properly advise their clients, and two of the goals of the Guidelines – to reduce conflict and tension between spouses by making the calculation of child support orders more objective, and to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement – are not being achieved.
The Committee approaches this dilemma by first outlining the method by which we understand the basic table amount, the core of the Guidelines, was constructed. The basic table amount does not represent an itemized and costed list of the expenditures parents are required to spend on their children to meet their basic needs. Instead, it represents an approximation of the percentage of their incomes parents spend on their children. Of course, those percentages, and the dollar amount they represent, will vary according to the income of the parents. At an income of $20,000, parents will spend less on their children, clearly, than those with incomes of $50,000, and $100,000. As income rises, therefore, what are seen as "normal" expenditures also changes. For example, an expense for piano lessons for very low income parents would be likely be exceptional and would perhaps entail sacrifice on the parents’ part; that same expense for middle and high income parents would likely be a normal amount for those in comparable income groups.
That pattern of rising expenditures on children in intact families, including expenditures for school and extracurricular activities, is reflected in the fact that the table amounts in the Guidelines rise as the income of the payer rises.
With this in mind, let us return to the issue of "extraordinary expenses." Using the foregoing analysis, we may assume that a certain amount of money for expenses for school, educational programs and extracurricular activities is already covered in the basic table amount, for people at that income level. Extraordinary expenses thus means those expenses that are over and above what people at that income level would normally spend on their children for such activities.
We hasten to add, however, that just because an expense is found to be extraordinary does not automatically mean that a payer must contribute. The expense must also be in the child’s best interest, and a reasonable expense in relation to the means of the spouses. Even if an extraordinary expense was affordable for an intact family, spouses’ means change after separation and that will be taken into account in assessing all section 7 expenses.
The Committee wishes to propose a definition of extraordinary that we believe is in keeping with the above analysis and would clarify the intent of this aspect of section 7. As noted, this is one area where we feel that remedial action should be taken sooner rather than later.
Recommendations
3. The heading preceding section 7 should be changed to "Additional or extraordinary expenses."
4. A definition of "extraordinary" in section 7 should be added as follows:
Definition of Extraordinary
(2) In paragraphs (d) and (f), "extraordinary expenses" shall be interpreted to mean expenditures that exceed what would be considered typical amounts for parents at comparable income levels to spend for those purposes.
When the Committee previously studied Bill C-41 and the then draft Guidelines, certain Senators were concerned, and have remained concerned, about the treatment of support for adult children who are pursuing post-secondary education. We note that a number of witnesses who appeared before the Committee in the course of the current review continue to share those concerns.
Caselaw under the Divorce Act has for many years included adult children attending post-secondary institutions within the definition of "child of the marriage." The relevant part of the definition for this purpose is as follows: [a child of the marriage is] "the age of majority or over … but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life" (emphasis added). Judges interpreted the section so that adult children still in school came within the meaning of "or other cause," in the absence of any express inclusion of these children.
The Guidelines treat adult children still in school in two ways. First, they give a judge discretion to award child support according to the applicable table as if the child were under the age of majority, or, if that approach is considered inappropriate, to order that a different amount be paid, having regard to the means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the child’s support. Second, expenses for post-secondary education are included in the list of additional expenses in section 7 that may be apportioned between the spouses.
The Committee heard testimony as to some of the anomalous situations that can arise as a result of including these adult children within the basic table amounts. For example, it is possible for a custodial spouse to receive significant amounts of money for such a child, while the child attends university in another city. The degree to which the recipient of the money passes it along to the student is entirely discretionary. Meanwhile, the paying parent will also be responsible for his or her share of the section 7 educational expenses.
The Committee has concluded that adult children attending post-secondary institutions should not be included, in section 3, in the basic table amount in the Guidelines. Nor should the provision permit a judge to make an award that deviates from the table amount. Instead, we have concluded that all support for adult children still in school should be dealt with under section 7, or under a new provision. Thus, both parents would be responsible according to their financial means, and the means of the child, and the recipient spouse would not be in a position to benefit unduly in the type of situation described above. Of course, we would expect that if an adult student continued to live with the recipient parent, the associated basic living expenses would be included in the amount awarded. In most cases, we believe that the obligations of each parent would best be payable directly to the child. In some cases, for example, where the child was living with one parent, payment to that parent would be acceptable.
Recommendation
5. Adult children attending post-secondary institutions should not be included in the basic table amount under the Guidelines, nor should a judge have discretion to award a different amount. Instead, all post-secondary support issues should be dealt with as an expense under section 7, or a new provision, with the money payable either directly to the child, or to a parent, depending on the circumstances.
Section 9 of the Guidelines is entitled "Shared custody." It provides that where a spouse has a right of access to, or has physical custody of, a child for not less than 40% of the time over the course of a year, the amount of the child support order must reflect, in addition to the table amounts for each spouse, the increased costs of the shared custody arrangements and the conditions, means, needs and other circumstances of each spouse and any children involved.
The above provision recognizes the important fact that where one parent is performing a significant amount of parenting, even though it is less than 50%, there are expenses entailed. It permits those expenses to be taken into account when establishing that parent’s financial responsibilities. The Committee is reminded that when the draft Guidelines were under study the percentage of parenting required to come within the provision was set at 50%. We strongly criticized that figure, and as a result the threshold was lowered to the current 40%.
At the time, the figure of 40% was itself a compromise between those who sought the higher figure of 50%, and those who wished to lower it to 30%. While there is still some support within the Committee for the lower figure, or for a sliding scale as suggested by some of our witnesses, for the moment the Committee is reluctant to recommend changes to the provision. The 40% figure may yet turn out to be the best compromise, but more time will be necessary before a definitive judgment can be made. We are reluctant to support a sliding scale because it would introduce more judicial discretion into the Guidelines. While a degree of discretion is warranted, even necessary, the more that discretion is introduced the less will the Guidelines be able to meet the important goals of making the calculation of child support orders more objective, encouraging settlement, and ensuring consistent treatment of spouses in similar circumstances.
We note the concerns of a number of our witnesses that this section promotes disagreements and litigation among spouses. A custodial parent under the provision has a financial motive to try to restrict parenting by the other parent to less than the 40% threshold (and vice versa). For low and middle-income custodial parents this is an entirely natural reaction, for in many cases it is undeniable that the primary caregiver’s actual child-related costs will not decrease as much as the amount of the decrease that will arise once the other parent exceeds the 40% parenting level. As one witness put it, a low income parent needs to be able to provide the basics, even if the children’s time is split 50/50.
For that reason, we recommend that the Department examine other methods of more objectively apportioning shared parenting costs. For example, in one jurisdiction we understand that the extra costs of the spouse sharing the parenting are estimated and added to the table amount before it is apportioned among both parents. This approach provides a higher percentage of support for a lower income primary caregiver.
Although the Committee recognizes that the 40% rule may cause uncertainty and disagreements, it is ironic that it may also serve to foster an important principle – the importance, whenever possible, of children having both parents as significant factors in their lives. Even though some parents may initially seek to take advantage of the rule primarily for financial reasons, if the end result is a stronger relationship with their children, then a beneficial result will have indirectly been achieved.
Recommendation
6. The Department of Justice should examine other methods of more objectively apportioning shared parenting costs for the purpose of section 9 of the Guidelines.
The Committee heard some testimony concerning the difficulty of determining income for the purpose of applying the Guidelines. In particular, the problems centered on accurately assessing the income of spouses who are self-employed, a problem, of course, which is equally applicable to both parents. On the other hand, we are aware that difficulties in determining income for self-employed spouses predate the Guidelines. Indeed, one witness pointed out that the Guidelines have merely brought the previous difficulties to light. That same witness felt that, overall, they have been a real improvement in the calculation of income.
While the Committee has been alerted to some specific difficulties in determining income, we do not feel able at this time to make specific recommendations. This is one area that most witnesses agreed is complicated and needs to be watched closely. Amendments and fine-tuning may be necessary in the future after we have additional experience with the provisions.
Section 10 and Schedule II of the Guidelines permit a court to award an amount of child support that is different from what would otherwise be awarded if the spouse making the request, or a child of that spouse, would suffer undue hardship. Contributing circumstances are listed (although they are not inclusive) that would cause undue hardship; they include such matters as reasonable debts incurred during the marriage to support the family or earn a living, unusually high expenses in exercising access to a child, and other legal support duties. The provision is very tightly structured -- even if undue hardship is found, an application must be refused if, after calculating the normal child support that would otherwise be awarded, the household of the applicant spouse would have a higher income than the other spouse’s household.
Schedule II is entitled Comparison of Household Standards of Living Test and is over four pages long. It provides the steps necessary apply the test, a test that ends with a calculation and comparison of income ratios. Most witnesses felt that the required calculations were very complicated. Even the government witnesses agreed that lawyers and judges found the test difficult to apply. Their hope was that a new guide would help those concerned. Others insisted that using one of the computer programs developed specifically by the private sector for the Guidelines was essential for this provision. We cannot presume that such a program is available to all lawyers or litigants.
The Committee recommends that the government try to simplify and clarify the "undue hardship provisions," while keeping in view the best interests of the children and the importance of fairness to all parties concerned. These include the two spouses and any second families that have formed, in view of that fact that their incomes are relevant as part of the household comparison. In particular, we have been informed that there is a lack of clarity as to when a new spouse’s income and expenses are to be included.
Recommendation
7. The government should try to simplify and clarify Section 10 and Schedule II of the Guidelines, the Undue Hardship Provisions, while keeping in view of the best interests of the children and the importance of fairness to all parties concerned.
E. Access to Revenue Canada Information
Financial information is important in assessing appropriate child support amounts. The calculation of the annual income of a spouse begins in section 16 of the Guidelines with a reference to the T1 General form issued by Revenue Canada. Section 21 places an obligation on spouses whose income is relevant for child support purposes to supply, at a minimum, copies of their personal income tax returns and notices of assessment for the last three years. Upon demand, these obligations are ongoing on an annual basis. There is a range of penalties for non-compliance. In cases where spouses have the information in their possession, Revenue Canada need not be involved. If that is not the case, they would have to approach Revenue Canada for their records.
In the course of our hearings, one witness made a suggestion that took the Committee aback. The recommendation was that a provincial enforcement agency should have the right to go directly to Revenue Canada for the required information. (Currently, a spouse may delegate to the enforcement agency the right to ask the other spouse for financial information, but only the affected spouse approaches Revenue Canada.)
The Committee feels strongly that, if there is a problem obtaining financial disclosure in a timely manner, allowing provincial enforcement agencies access to Revenue Canada’s tax information is not the proper cure. One of our witnesses noted that the sanctions for non-compliance in the Guidelines were entirely appropriate, but were not being strictly applied. It may be, therefore, that this is one case where an apparent problem in the child support Guidelines has a ready answer if judges apply the existing sanctions. If down the road, close monitoring reveals the problem to be widespread and not responsive to the current sanctions, then compliance mechanisms may need to be revisited. Until then, the Committee rejects any measures that would allow confidential tax information to be more widely available.
F. Child Support and the Income Tax System
As was noted previously, at the same time that Parliament was considering the amendments to the Divorce Act, amendments to the Income Tax Act were also in process; these provided that child support payments were no longer deductible for income tax purposes, and no longer needed to be included as income. These changes were controversial at the time, particularly on the part of paying parents.
Not surprisingly, one year later, there are a significant number of people who still feel that the decision to change the former deduction and inclusion system was a mistake. They point out that the tax changes resulted in a sizeable loss of income available to a separated family unit in all cases in which a paying parent was in a higher tax bracket than the recipient parent, a not uncommon situation. The result was additional tax revenue for the federal government. Although the government pledged to direct that money to low income families, that was small comfort to separated and divorced couples whose economic situation was worsened by the changes but who derived no benefit from the redistributed additional tax revenue.
On the other hand, some of our witnesses noted that the change freed recipients of child support payments from the obligation to set aside money to be able to pay their taxes when due. Many individuals at lower income levels, and indeed a number at middle income levels as well, found setting that money aside a difficult challenge, and one that often caused them problems. They are now free of that worry.
The Committee is sympathetic to those individuals whose overall economic situation was worsened by the tax changes. A number of witnesses suggested that the tax régime should be optional; that is, payers and recipients could agree on whether they wanted the former system or the current one to apply to them personally. We realize, however, that the support tables are based on the current tax rules, and that to allow for choice would introduce a significant degree of complexity into the system, a result that we generally oppose. We are also aware of the possibility that choice in the matter might introduce a whole new element that would make settlement negotiations more complex, and could also lead to unfair pressure being applied by paying parents. For these reasons we are unwilling to recommend that the current tax rules be changed.
G. Parents’ Income for the Purpose of the Table Amounts
Prior to the institution of the Federal Guidelines, the income of both parents was relevant in establishing the amount of child support that would be paid upon separation. The Guidelines break with that tradition by providing that, for the purpose of the basic table amount, only the income of the non-custodial, paying parent is relevant, except in cases of shared and split parenting. The income of both parents is also relevant for the purpose of the section 7 add-ons and the undue hardship provision.
For many commentators on Bill C-41 at the time of its passage, taking into account the income of only the paying parent for the basic table amount seemed intuitively unfair, since both parents are under an obligation to support their children. The explanation that recipient parents’ income was implicitly taken into account, since they would be contributing to the children’s support according to their means without the necessity of a court order, was not entirely convincing.
For some of our witnesses, the perception of unfairness in the Federal Guidelines continues. Others, however, have concluded that the current system produces results that are reasonable in the circumstances, and they now believe that the system is appropriate.
The Committee received evidence about Quebec’s Guidelines, which do take into account the income of both spouses, so it is clear that a Guideline system does not preclude either approach. We note that the Quebec model has not been subject to criticisms of unfairness in the way it deals with parental income as the Federal Guidelines have been.
Although some members on the Committee lean toward the Quebec model, the Committee has concluded that this issue should, rather, be monitored closely and dealt with, if necessary, in the five-year review. We have already noted that controversy over the original decision has abated considerably, and it may be that time will prove the choice to have been a wise one, particularly in straightforward cases where having to assess only one income doubtless simplifies the calculation considerably.
8. The government should monitor the application of the principle
that, with specified exceptions, only the payer’s income is relevant
to the calculation of the basic table amount.
Several witnesses pointed out that the costs that non-custodial parents must incur to visit their children may be very high in cases where either parent (or both) has moved from the area of the original family home. In an extreme case, a parent might have to fly across the country, or pay for a child, or children to fly, in order to maintain contact with them. Such costs can be a serious impediment to nurturing a strong parental relationship, a goal that the Committee wishes to support.
Currently, access expenses are taken into account only in calculations relating to the undue hardship provisions. Thus, they are not relevant to most situations, and the parent who wishes to visit the children, or have them visit over long distances, must absorb all the costs. The Committee feels that this situation is unfair, particularly where the decision to move was the custodial parent’s.
The Committee has concluded that there should be an express recognition of access costs in the Guidelines that would be applicable whenever such costs become significant. We would propose an approach similar to the one in section 7 in which costs are shared in proportion to the parents’ means, taking into account the necessity of the expense in relation to the child’s best interests and its reasonableness.
Recommendation
9. The Guidelines should reflect the access costs that may result
from one parent living a significant distance from his or her
children. The provision should be modeled on section 7 of the existing Guidelines.
One of the major concerns of a number of witnesses, particularly those representing parents’ groups, was the high cost of family law litigation and the effect of recent cutbacks to legal aid funding on their access to the courts. The Committee is very sympathetic to these views; unfortunately, legal aid is a provincial matter and so remains beyond the purview of this Committee. We remain concerned, however, because rights that cannot be asserted are little consolation.
On the other hand, the Committee is aware of recent efforts to minimize the adversarial and litigious nature of family law to the greatest extent possible. In this connection, we will await with interest whatever recommendations the Special Joint Committee on Child Custody and Access may make in this area.
The Committee was presented with a number of concrete suggestions as to how child support enforcement could be strengthened. One suggestion was that there should be a Criminal Code offence of wilful default of child support. The Committee has some concerns about this proposal, including whether or not it would actually be used in practice. We also note that it is a provincial offence to defy a court order, such as an order to pay child support. This provision is used from time to time, and conviction can result in incarceration.
Despite the above concerns, the Committee recognizes that a Criminal Code offence would send a strong message to potential defaulters that society takes child support very seriously. Some who would take their responsibilities lightly might be deterred from defaulting merely because of the existence of such a sanction. We therefore intend as a Committee to study this matter in depth when we revisit the question of the Guidelines in the future.
The Committee’s attention was brought to a situation in which it would appear to be virtually impossible to enforce child support orders. The issue arises for employees with the United Nations, and presumably other international bodies. It appears that the United Nations does not have procedures to permit the garnishment of salary and pension benefits in order to satisfy child support orders validly obtained in the employee’s home country. Moreover, it appears that the UN will ignore such orders, and actual family situations, to the extent of paying child-related bonuses to such employees, even though they do not have custody of their children and are in arrears of their child support obligations.
Although in the overall scheme of things there may not be many individuals in this situation, there is a serious matter of principle at stake. The Committee feels it is unfair that a Canadian working for an international body should be able to evade his or her responsibilities, with no recourse by the other parent. We therefore recommend that the Minister of Foreign Affairs work to ensure that international agencies of which Canada is a member develop procedures by which child support orders may be honoured.
There are two final measures that the Committee wishes to address that would assist parents who are owed child support to collect lump sum amounts. The first concerns the pensions of federal government employees. At present, there is no provision in federal law to permit the value of a pension, or a portion of it, to be paid out as a lump sum to satisfy child support arrears. The Committee was directed to the experience of several provinces where this is possible, and believes that it is worth exploring at the federal level. Such a measure would only be used as a last resort, and because of the seriousness to an individual of the loss of pension rights, could serve as a strong inducement to settle the arrears.
The other situation involves income tax refunds that would be due to a taxpayer, if he or she were to file an income tax return. Under section 150(2) of the Income Tax Act, the Minister of Revenue may serve a demand on any individual to file a return, whether tax is owing or not. Normally, such demands are made when there is tax owing, but, as noted, nothing precludes a demand where there is an entitlement to a refund. This provision is relevant to the enforcement of child support because, in cases where a refund is due, it could be garnished to pay the arrears.
The Committee recommends that in this kind of situation, the Minister of Revenue should make a demand to file a return upon receipt of a notice of a court order under the Family Orders and Agreements Enforcement Assistance Act.
Recommendations
10. The Minister of Foreign Affairs should work to ensure that international agencies of which Canada is a member develop procedures by which child support orders may be honoured.
11. The government should explore the possibility of changing the law to permit the value of a federal pension, or a portion of it, to be paid out, as a last resort, as a lump sum to satisfy child support arrears.
12. Where taxpayers are owed a refund of income tax and have not filed a return, the Minister of Revenue should respond to notices of court orders under the Family Orders and Agreements Enforcement Assistance Act and make a demand to file a tax return so that it may be garnished to pay arrears of child support.
Social changes as widespread and important as the new child support Guidelines need to be monitored closely for their impact on individuals and society. To do that, targeted data must be generated and a well-designed research plan adopted and implemented as close to the beginning of the project as possible. Only then can the results be fully assessed and areas of success and failure be identified. From the ideal research plan, our witnesses stressed that we should also try to learn more about the broad social aspects of divorce, family breakdown and its affect on children, and the different parenting arrangements that follow family breakdown (such as shared parenting, split parenting and so on). It is also important that the research encompass the different regions of the country; what may be a problem or pattern in one part, may not be problematic elsewhere.
The Committee has examined the proposed research framework for monitoring the major components of the Child Support Initiative. We agree with the Department’s intention to seek input from a wide variety of individuals. Some of our witnesses argued that payers of support had been neglected in the past; we note that they are specifically mentioned as part of the key informants who will supply data necessary to assess the Guidelines. Others who might otherwise have been overlooked, but who will specifically be included, are Aboriginals, people with low literacy levels, low income people, and so on.
The proposed research framework has been devised so as to evaluate the success of the Guidelines in attaining each of the four goals specified in section 1. An evaluation will also be made of federal enforcement measures. The Committee is satisfied that the government has given careful thought to the extremely wide range of issues relevant to a thorough evaluation and to the research strategies that will enable it to provide answers to the many questions that have to date lacked empirical data. We are confident that by the year 2002, when the Minister of Justice will report to Parliament on the operation of the Guidelines, that there will be a solid foundation upon which to draw conclusions.
1. The government should introduce amendments to the Federal Child Support Guidelines when the need for them is evident, rather than waiting for the results of the comprehensive review at the five-year mark.
2. Before the government makes any substantive changes to the Federal Child Support Guidelines, the Committee strongly recommends that they consult with the Standing Senate Committee on Social Affairs, Science and Technology.
3. The heading preceding section 7 should be changed to "Additional or extraordinary expenses."
4. A definition of "extraordinary" in section 7 should be added, as follows:
Definition of Extraordinary
(2) In paragraphs (d) and (f), "extraordinary expenses" shall be interpreted to mean expenditures that exceed what would be considered typical amounts for parents at comparable income levels to spend for those purposes.
5. Adult children attending post-secondary institutions should not be included in the basic table amount under the Guidelines, nor should a judge have discretion to award a different amount. Instead, all post-secondary support issues should be dealt with as an expense under section 7, or a new provision, with the money payable either directly to the child, or to a parent, depending on the circumstances.
6. The Department of Justice should examine other methods of more objectively apportioning shared parenting costs for the purpose of section 9 of the Guidelines.
7. The government should try to simplify and clarify Section 10 and Schedule II of the Guidelines, the Undue Hardship Provisions, while keeping in view the importance of fairness to all parties concerned.
8. The government should monitor the application of the principle that, with specified exceptions, only the payer’s income is relevant to the calculation of the basic table amount.
9. The Guidelines should reflect the access costs that may result from one parent living a significant distance from his or her children. The provision should be modeled on section 7 of the existing Guidelines.
10. The Minister of Foreign Affairs should work to ensure that international agencies of which Canada is a member develop procedures by which child support orders may be enforced.
11. The government should explore the possibility of changing the law to permit the value of a federal pension, or a portion of it, to be paid out, as a last resort, as a lump sum to satisfy child support arrears.
12. Where taxpayers are owed a refund of income tax and have not filed a return, the Minister of Revenue should respond to notices of court orders under the Family Orders and Agreements Enforcement Assistance Act and make a demand to file a tax return so that it may be garnished to pay arrears of child support.
APPENDIX / ANNEXE : LIST OF WITNESSES / LISTE DES TÉMOINS
Witness / Témoin |
Date |
| Department of
Justice/Ministère de la Justice George Thomson Deputy Minister/sous-ministre Thea Herman Senior Assistant Deputy Minister/sous-ministre adjointe principale Murielle Brazeau, General Counsel and Team Leader, Child Support Initiative /avocate générale - chef d’équipe, Initiative sur les pensions alimentaires pour enfants |
16-12-1997 |
| Philip Epstein,
Q.C./c.r. Family Lawyer / avocat en droit de la famille |
10-02-1998 |
| Federal-Provincial-Territorial
Task Force on Implementing the Child Support Guidelines/ Le Groupe de travail fédéral-provincial-territorial concernant la mise en oeuvre des lignes directrice sur les pensions alimentaires pour les enfants Betty Ann Pottruff, Q.C./c.r. Co-Chair/co-présidente |
17-02-1998 |
| Canadian Bar
Association/ l’Association du Barreau canadien Jennifer Cooper, Q.C./c.r. Chair, Guidelines Implementation Committee, Family Law Section/présidente, Comité de mise en oeuvre des lignes directrices, Section nationale du droit de la famille Tamra Thomson, Director/directrice Legislation and Law Reform/Legislation et reforme du droit |
24-02-1998 |
| Lynn Reierson Family Law Practitioner/avocate en droit de la famille |
24-02-1998 |
| Barry R. Gardiner,
FCA/FCA Chartered Accountant/comptable agréé |
17-03-1998 |
| Equitable Child
Maintenance and Access Society Michael A. LaBerge President/président Marina Forbister Past President/présidente sortant |
17-03-1998 |
| Support for Children:
An Organization for Public Education (SCOPE) Judy Poulin President/présidente |
24-03-1998 |
| National Association
of Women and the Law/ Association nationale de la femme et du droit Carole Curtis Family Lawyer, Member of Family Law Working Group/avocate en droit de la famille, membre du groupe de travail en droit de la famille |
24-03-1998 |
| FatherCraft Canada W. Glen Cheriton Director/directeur |
24-03-1998 |
| National Alliance for
the Advancement of Non-Custodial Parents/ Alliance nationale des organizations pour l’entraide des parents non-gardiens L. Jason Bouchard Coordinator/coordinateur |
24-03-1998 |
| Elizabeth Beattie Individual/individu |
31-03-1998 |
| Quebec Bar
Association/Barreau du Québec Suzanne Vadboncoeur Director of Research and Legislation, Department of the Quebec Bar Association and Secretary of the Committee of the Bar on Family Law/directrice du Service de recherche et de législation du Barreau du Québec et secrétaire du Comité du Barreau sur le droit de la famille Miriam Grassby President of the Committee of the Bar on Family Law/présidente du Comité du Barreau sur le droit de la famille Dominique Goubau Member of the Committee of the Bar on Family Law/membre du Comité du Barreau sur le droit de la famille Jean-Marie Fortin, Member of the Committee of the Bar on Family Law/membre du Comité du Barreau sur le droit de la famille |
31-03-1998 |
| Queen’s
University Professor Nicholas Bala Associate Dean, Faculty of Law/vice-doyen, Faculté de droit |
01-04-1998 |
| Mothers Against
Fathers in Arrears Kaarina Pakka Co-founder/co-fondatrice Regina May Co-founder/co-fondatrice |
01-04-1998 |
| Karen Selick Family Law Practitioner/avocate en droit de la famille |
28-04-1998 |