CHILD SUPPORT PROCESSES
OPTIONS FOR CANADA

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RECOMMENDATIONS

Having surveyed the range of potential models which could be implemented in Canada, it is recommended that the general process illustrated in Appendix A provide the skeletal basis for a child support model.

At the outset of the process, administrative processing serves the purpose of facilitating early establishment or modification without the need to resort to dispute resolution in those cases where more straightforward processing is possible. This kind of process could be set up so that either parent's application could be accepted and administered. Existing systems such as those operating in Washington and Oregon provide the means by which to contact the obligor parent at a more informal level in an attempt to settle on an appropriate amount of child support early in the process. As identified, a requirement of this kind of approach at the intake stage of the system is efficient collection of the relevant financial information from both parents.

Existing court mechanisms provide the most proven means of collecting information from uncooperative parties; however, in those cases where the obligor parent is willing to cooperate, the financial information could potentially be gathered in an efficient manner at the outset through a financial statement filled out and returned by the two parents. It may then be possible to do a child support calculation, send out a proposed child support assessment and assume agreement with the amount of support as assessed if neither party disputes.

At this stage of the process, the amount of child support assessed would need to be confirmed somehow through means of some form of review of the recommendation. If the review proves unsuccessful, of course, the eventual remedy would be judicial review. For this category of cases, the initial recommendation could be drafted by any one of the various staff members involved in administering child support.

The administrative processing scheme should streamline into alternative dispute resolution mechanisms where appropriate. On the one hand, there will be multi-issue cases, which may be more well-suited for court-connected mediation, and attached assessment services, where child support could potentially be addressed. However, caution should be exercised by staff at this stage (whether this staff constitutes part of the mediation service itself or is separate) because not every cases is appropriate for mediation, in particular, cases involving a social assistance recipient, an abusive relationship or an immediate need for a child support decision.

On the other hand, there may be opportunity at this stage to engage in attempted negotiations with the obligor, either with or without the direct involvement of the obligor. This part of the process differs from actual mediation in that it is neither confidential nor conciliatory in nature but, rather, aimed at securing the obligor's agreement to pay a certain amount of child support where possible. This conciliation technique is more appropriate for those cases where child support is the only issue to be resolved such as will often be the situation for child support modifications. The staff member conducting these informal mediation sessions would not need to be a trained mediator but, rather, someone who could negotiate in an effective manner and show empathy for divergent positions. In addition, it would be useful if this person had been involved with the case since the commencement of the process.

The staff involved at this stage of the process would include clerical and investigative personnel who would be responsible for contacting the parties and conducting negotiations where appropriate.

Should the attempts at conciliation prove unsuccessful, the case could then be channelled to the expedited hearing process. Generally speaking, the experience in other jurisdictions has been that legally trained persons with a certain level of expertise and relevant experience are considered the most appropriate hearing officers; however, there are exceptions to this general trend which, as discussed, have also been successfully integrated into such a system. Again, it has proven useful in various existing models to have the emphasis at this stage continue to focus on attempted conciliation, here facilitated by the hearing officer. The hearing forum provides the final forum in appropriate cases to arrive at consensus or reconciliation without the need to resort to a full-blown adversarial trial-like forum. Of course, not all cases will be amenable to this approach, and the discretion and judgement of the hearing officer become significant.

As identified on the chart at Appendix A, there are several layers of potential dispute resolution options available and these various options (examples of which have been discussed in this report) can be integrated at various stages of the recommended child support model. These options are depicted visually at Appendix B in the form of a continuum.

Starting at the top of the continuum, at the most formal level, is the purely adjudicative model whereby a sole decision-maker hears from both disputants at a hearing. This approach is evident in the traditional role of the judge in the Western legal system and currently, forms the backbone of the administration of justice in Canada.

There are both advantages and disadvantages associated with the adjudicative model, as follows.

• Advantages:
  1. a sole decision-maker ideally provides for a more decisive forum, where a completely impartial and skilled decision-maker makes a decision based on admissible evidence and the rule of law - logic, reason and impartiality prevail;
  2. more effectively combats any indications of a power imbalance between the parties;
  3. is a commonly accepted valid approach for many cases;
  4. is well suited to cases involving facts and law, especially when these factors are in dispute.
• Disadvantages:
  1. is not set up to address the emotional issues involved in a given case;
  2. often is part of a more complex process not as accessible to the disputants themselves - for instance, rules of evidence and legal information are sometimes unmanageable for disputants;
  3. does not adequately address the circumstances of all cases, for instance, where other issues aside from law and facts are present (of particular significance in the area of family law);
  4. can mean considerable expense for all parties involved.

At the next level and slightly less formal, is the notion of binding adjudication combined with preliminary attempts to resolve at least some of the issues through mediation and/or conciliation. This approach is already becoming increasingly more prevalent across Canada in response to some of the noted inadequacies of a purely adjudicative model. The models that are being developed along these lines include both early judicial intervention and referrals to other associated services, where appropriate. As discussed, judges are becoming more involved in non-adversarial meetings with litigants prior to hearings, during which they sit down with the parties and their counsel in an attempt to reach some kind of arrangement before the matter proceeds to the next level. Alternatively, the judge could instead send the disputants to seek mediation services prior to a formal hearing. These approaches are becoming legitimatized in the area of family law where, often, there exist many emotional issues and concerns relating to the parties' need to foster some form of ongoing relationship into the future. Some aspects of incorporating this initial attempts at more conciliatory measures are as follows.

• Advantages:
  1. it addresses outstanding emotional issues which otherwise, may never be addressed but, rather, swallowed up in an adversarial process;
  2. it provides an appropriate forum for those cases which have ended up in the courts when they do not necessarily need to be there;
  3. it legitimatizes the role of mediation and comparable programs as integral components of the recognized existing justice system;
  4. it allows the parties to express views which may be highly prejudicial in a more formal hearing - in other words, these approaches facilitate discussion and sharing of views between the parties;
  5. it reduces high costs associated with formal hearings, if successful.
• Disadvantages:
  1. addition of an extra and possibly more time-consuming procedural level for those cases destined to go to a hearing;
  2. presents some difficulty in the situation where insufficient information (e.g. financial documentation) is available at the preliminary stage and consequently, may be overlooked;
  3. could potentially provide the opportunity for the more influential of the two parties to compromise the other party's position in the absence of due process mechanisms designed in part to protect both parties at the hearing level (this concern is particularly noteworthy in the situation of an abusive relationship or substantial economic disparity, especially if one or both of the parties is/are unrepresented).

Further down the continuum is recommending arbitration, which is generally termed "mediation-arbitration." This approach is evident in a number of existing programs surveyed in this report and has proven fairly successful in most instances.

• Advantages:
  1. potentially more resource-efficient to have both roles facilitated through the same process;
  2. could reduce redundancy in the process because, presumably, the mediator turned arbitrator would be familiar enough with the case to make an insightful decision.
• Disadvantages:
  1. the difficulty of finding qualified people to blend the mediation and arbitration functions together (this comment is based on the assumption that the two functions would be carried out by the same person - there are of course existing variations of this basic approach);
  2. the possibility that the "recommending" function would be unduly influenced by the pre-existing mediation sessions;
  3. the possibility that the effectiveness of the mediation would be influenced by the parties' knowledge that the "mediator" is subsequently going to take on the recommending role.

Finally, at the least formal level, exist the variations on the mediation model, recommending mediation, mediation involving the mediator's opinion and finally, confidential mediation. The models involving mediation coupled with either making a recommendation or providing an opinion as to the likely outcome of the case share some of the same attributes discussed above in relation to the mediation arbitration model, but to a lesser extent. Mediation is very controversial in the area of child support and has the following characteristics.

• Advantages:
  1. it is arguably less expensive than more adversarial processes when conducted efficiently;
  2. it can prevent continuing hostility between the parties, which could otherwise hamper ongoing relations into the future in regard to the needs of the children;
  3. in certain situations, it could serve to empower the parties through enabling them to make their own decisions;
  4. would probably be most useful and effective when there are multiple outstanding issues amenable to a negotiation process.
• Disadvantages:
  1. some potential for a grave and possibly dangerous outcome between parties where power imbalances, dynamics of abuse and other problematic phenomena go unaddressed;
  2. the model may not be suitable when child support is the only outstanding issue;
  3. the nature of child support guidelines suggests there may be less room for negotiation and the process should probably reflect this objective to a certain extent.

It may be that different cases will present different issues to be resolved and should be channelled to the more appropriate forum accordingly. However, this proposal does not preclude interconnectedness of the various approaches to some extent. For instance, if child support were only one of several contentious issues, and it was not worked out through the mediation process, this issue could ultimately be referred to an expedited hearing process, either as a matter of course or upon judicial referral. The Alameda county model could be adopted in this respect - in that model, custody and access are both first mediated and then the issue of child support is referred out to another forum so a financial assessment can be done. A similar approach is taken in the Friend of the Court Office in Michigan.

Conversely, where the administrative child support process is first triggered and, as it turns out, there are other outstanding family issues to be addressed, the case could perhaps be channelled to mediation in the absence of abuse or other aggravating circumstances. There is evidence in many jurisdictions of obligors' dissatisfaction with an approach that is designed to address child support in a vacuum, separate and apart from some of their concerns, most notably, access. Some critics have suggested that if the obligor's frustrations are not addressed, he or she will feel excluded from the process and may be less inclined to comply with a subsequent child support order.

A high degree of integration between the appropriate resources is crucial. In this respect and given financial limitations on available resources, centralization of services is recommended as much as possible, whether through the courts or through a closely affiliated office. Direct linkage with court information would be very useful. This centralization will also create less confusion on the part of the public and will provide for enhanced integration of services as time goes on and ideas develop through experience.

The current experience from one province to the next varies; therefore, each place has different available resources and sources of expertise upon which to draw. There is probably not one perfect child support administrative scheme that would fit perfectly for each province. Just as social phenomena, such as local culture, law and politics in each jurisdiction outside Canada provide decisive contexts for administering child support, so too do differences exist from one province to another.

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