CHILD SUPPORT PROCESSES
OPTIONS FOR CANADA
Certain issues should be addressed when establishing a dispute resolution process. Dr. Lee Axon and Robert G. Hann suggest that some of the more important features of any model implemented should be:
- accessibility to the disputants both in terms of physical location and hours of operation;
- protection of the rights of disputants, for instance where one of the parties is at a disadvantage relative to the other party;
- efficiency in terms of cost and time and tailoring to the nature of the dispute;
- perceived as a fair process within society when measured against the nature of the dispute;
- inclusion of a means by which both finality and enforceability of the decision are assured;
- viewed as a legitimate system of justice, and staffed by competent and well-trained people; and
- that gives expression to the community's sense of justice through establishing norms and guidelines.
These suggestions are valid in relation to any model, regardless of its specific features. In addition, there are other issues that should be considered in regard to establishing the most appropriate child support model.
In jurisdictions outside Canada, expedited child support systems, whether court-based or purely administrative, all share the feature of treating child support as an exclusive issue, separate from any other domestic relations matters. In those programs where this approach is taken, the common practice tends to be that less significance is placed on attempts at bringing the parties to some form of reconciliation. Rather, the central goal of the expedited processes is to establish or modify the child support amount in an efficient and decisive manner.
In most places, parties dealing with a divorce case and with a number of other issues - including custody, access and property division - are channelled out of the expedited child support process and into the court process. In some jurisdictions, all issues including child support are dealt with by the court whereas in other places, child support may be referred by the court to the administrative process at some stage, for instance, after custody and access have been resolved. Whatever the specific approach, the common theme is that the administrative expedited child support processes were not designed to address multiple domestic issues.
In this way, the administrative intake services and expedited hearing processes which could be extracted from other jurisdictions as models to be incorporated into a Canadian child support scheme may be best designed to deal with those cases where child support is the only matter to be decided. For instance, modifications of existing child support orders would be well suited to this kind of process because, when modifications are sought, often the issues include financial changes of circumstances and the like. Other interrelated issues often would have previously been settled either through a court order or through the parties' own agreement.
However, although most child support hearing officers do not deal with many other family matters, there are examples where someone akin to a hearing officer, usually engaging in mediation-arbitration functions and acting upon judicial referral, does address a number of issues in the same forum.
In addition, there is also the issue of determining to what extent mediation should be incorporated into the hearing process. The most efficient approach needs to be assessed, perhaps through parallel pilot projects in a given province. In addition, legal advice is required in regard to whether this hearing officer could modify existing child support orders established by a Section 96 judge, for instance, as part of a divorce proceeding. It may be that in those cases, the judge might first have to refer the matter to the hearing officer for a recommendation. Alternatively, it may suffice that the judge's only involvement is to approve or disallow a hearing officer's recommendation without also needing to refer the matter to the hearing officer. These are questions to be addressed through consultation with the appropriate legal department.
For those cases where child support is only one of the issues to be settled, particularly when a divorce is pending, the jurisdiction over the entire case rests with the section 96 judge. In these situations, the benefits offered by alternative dispute resolution hold a lot of promise. Currently in Canada, as throughout many parts of the world, there is a major trend toward using conciliation and mediation to resolve as many issues as possible. In a 1996 report entitled Task Force on Systems of Civil Justice, the Canadian Bar Association makes several recommendations for reform in the civil justice arena, which are applicable to family law. Among the recommendations is a proposal that alternatives to litigation are further developed. The focus of the report is on developing a "multi-option in civil justice," system whereby alternative dispute resolution procedures could be used early on in the process, where appropriate. The report states:
The Task Force is persuaded that a focus on early consensual resolution of disputes holds the greatest promise for reducing costs and delays. For this reason, many of our recommendations are aimed at encouraging early settlement opportunities.
The basic objective sought through alternative dispute resolution processes is to facilitate agreement between the parties where possible and to foster a better relationship for future interaction in any event. The mediation process and related dispute resolution mechanisms are therefore most appropriately suited to those situations where the parties can bargain effectively. The experience in other jurisdictions is that this bargaining process works most effectively in those situations where the issues in dispute are relatively open-ended; there is no particularly right or wrong answer and there are multiple issues that the parties seek to trade off against each other in a sense. Whether or not child support is appropriately dealt with through such a forum is somewhat controversial for a number of reasons outlined in this report.
In any event, only a couple of jurisdictions utilize mediation when child support is the only outstanding issue. The goal of these programs could likely be affected through attempted negotiation with the parties carried out by the processing staff. Formal mediation sessions may not be necessary because if negotiation is unsuccessful with the parties, the case will probably be managed more efficiently through some form of hearing process whereby either side's position is presented and the hearing officer engages in some form of decision-making, if only to make a recommendation to a judge.
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