Report on Federal-Provincial-Territorial Consultations on Custody, Access and Child Support in Canada
Child support guidelines are rules and tables that help parents and others figure out how much child support a parent will pay after separation or divorce. The guidelines were developed to help parents predict the amount of child support a judge would likely set, and to ensure that children in similar situations are all treated the same when it comes to child support. The Divorce Act and most provincial and territorial family support laws include guidelines on child support.
Four issues related to child support were addressed in the consultation document:
- child support in shared custody situations;
- the impact of access costs on child support amounts;
- child support for children at or over the age of majority; and
- child support obligations of a spouse who stands in the place of a parent.
The comments that follow do not necessarily apply to Quebec, which has adopted its own child support guidelines; these differ from the federal guidelines. The consultations in Quebec related to the former, and covered three subjects: support obligations from previous unions; the cost of shared custody; and support for children at and after the age of majority. The results of the consultations in Quebec are reported in Appendix C.
Child Support in Shared Custody Situations
Factors in Determining Whether the Shared Custody Rule Applies
Time as the Sole Factor. According to the child support guidelines, to have a shared custody arrangement a parent must exercise access to, or have physical custody of, the children for 40 percent or more of the time in one year. Several concerns were raised with regard to the 40 percent rule and to using time as the sole factor in determining shared custody:
- The 40 percent rule creates more stress in relationships and treats the children as pawns;
- Both custodial and non-custodial parents often attempt to arrange custody with the 40 percent rule in mind, and not their children's interests;
- The 40 percent rule links access and support payments, which diverts attention from the best interests of the children; and
- Time as a determinant encourages parents to demand time with the children in order to avoid paying support and without considering whether this situation is in the best interests of the children.
Some respondents would support replacing the 40 percent rule with the concept of "substantially equal" time, which would be a less arbitrary determination and would reduce the likelihood of parents fighting over an hour or two of the children's time. It was suggested that this would be a more child-focused approach.
Others said that the sole criterion for child support should be the time that the parent is actually responsible for the children. This would include time that the parent does not actually spend with the child, including sleep time and school time.
Cost as a Deciding Factor. The argument respondents made for using cost as the determining factor was that some parents incur significant access costs even though they do not have shared custody. If cost were to be used as a deciding factor, judges would need to determine which costs were legitimate (for example, clothing, health care, recreation and education). Respondents also said that the key to reducing child support should not be whether the non-custodial parent incurs costs, but whether the costs of the custodial parent are reduced.
Other factors to consider. Additional suggestions for determining whether shared custody applies included the following:
- The legislative default should be shared parenting with child support pro-rated; additional costs should be considered, and child support calculations should be based on a sliding scale;
- The principle that equal time does not mean equal money spent should be recognized;
- A more realistic percentage for determining shared custody would be 30 percent; and
- Child support for low-income mothers is inadequate, while child support for high-income mothers is out of proportion with their actual needs.
Determining Child Support Under Shared Custody
Under the current child support guidelines, judges consider three things when determining the amount of child support in shared custody situations:
- the amount set out in the provincial and territorial child support tables, by income for each parent;
- the increased costs of shared custody arrangements; and
- the means and needs of the parents and the children.
Figuring out how to calculate the child support amount in shared custody situations can be very difficult, and many respondents suggested ways to make it simpler. These include the following alternatives:
- When parents share the physical custody of their children equally, neither parent should be required to pay child support (others felt that this option would not be fair and may result in different standards of living in both households);
- The higher income parent must pay support, equating the two parents' incomes and creating similar standards of living in each home (these respondents believe standards of living should be the same in both homes to approximate the stability that children would have in an intact family);
- A formula would help when calculating support amounts (others said that custodial cases are too widely divergent to be subject to standard criteria or formula);
- Judges should have the ultimate choice and should make decisions based on the precedents set in past cases;
- Amicable parents can work together to create a budget and then have the judge review the children's expenses as set out by the parents;
- When the "substantially equal time" test is met in a shared custody situation, then the guidelines should set out a formula, include a multiplier and a set off for calculating child support; each parent's amount would be determined by using the multiplier;
- Use the minimum standard of living for a child (based on Statistics Canada information) as a foundation (this would ensure a basic standard of living for the child and would avoid the current problem of the standard of living of the receiving parent decreasing to an unacceptable level because of the child support amount set for the shared custody arrangement);
- Consider expenses as a proportion of overall income, rather than simply net expenses. This method would recognize that one parent may have a significantly higher income than the other and therefore may be able to spend more on the children; and
- Consider various circumstances, including Crown obligations under treaty obligations (concern was expressed about whether applying the child support guidelines would relieve the federal government of treaty obligations when custody is given to a non-Native parent).
Respondents said that whatever method is used to determine child support under shared custody, it should be predictable, consistent and simple so that people can reach their own agreements outside of the courts.
Other suggestions included the following:
- Use a more common-sense approach and expand on best interests to include providing the best standard of living for the children. Balancing the children's needs with the parents' ability to pay child support could, along with the guidelines, be one factor to look at;
- Parents who have six-figure salaries should not need financial assistance to raise their children;
- Each parent with a low income should be able to qualify for the Child Tax Benefit;
- There should be an annual review of both the welfare of the children and the income of each parent. The review should be performed by a special body of the ministry of justice, not social services; and
- The child support guidelines should make it clear that the amount arrived at by any formula is a minimum, not a maximum.
Impact of Access Costs on Child Support Amounts
High Access Costs
When parents have unusually high access costs, combined with the amount of support the parent pays (according to the child support guidelines), either parent or the children could be in a situation of undue hardship. When making decisions about high access costs, parents, judges and others must consider the amount of time that the access parent spends with the children. Some respondents said that the existing guidelines were helpful when parents had unusually high access costs, but that high costs should be highlighted.
Respondents felt, first and foremost, that the reason for high access costs must be determined, recognizing that situations may be different and should not be treated as equal. The most common situation is when distance separates the parent and the children. Respondents' opinions varied on whose responsibility it was to pay the costs for the children to visit the parent in that situation:
- Some felt that it was the custodial parent's responsibility to pay for the children to visit the non-custodial parent, and that the expense should come out of the support payments;
- Some felt that the non-custodial parent should pay for the children's travel costs;
- Some suggested that a trust should be set up for the children, into which the money currently provided as support could be deposited for the children to use to visit the parent;
- Some suggested that access and associated costs should be defined as a shared responsibility. Access would become an obligation of both parents and a right of the children. This would uncouple access from child support. However, it was also pointed out that having to bear some of the costs might affect the willingness and/or ability of the custodial parent to facilitate access; and
- Some pointed out that compensation for high costs should be tied to proof of access (rather than allowing parents to claim high access costs, which reduces the amount of child support paid, and then not use their access after all).
Under the current legislation, parents wishing to have their support payments reduced because of high costs must prove undue hardship. Some people suggested that there are problems with the undue hardship process, including the following:
- The calculations to evaluate parents' standards of living are complicated;
- It is difficult to assign a dollar value to elements of a person's standard of living. There needs to be another, simpler way to take access costs into account when deciding child support; and
- The definitions of hardship and extraordinary expenses need to be clarified and better implemented by judges to ensure consistent judgments.
Other respondents said that undue hardship should not automatically decrease child support amounts when the paying parent exercises access often, since the receiving parents' expenses may not decrease. An increase in a paying parent's access time may have little or no impact on the receiving parent's major expenses, such as housing.
Low Access Costs
Some respondents said that unusually low access costs only occur when access is not used. Currently there is no way to compensate custodial parents for additional costs resulting from non-access unless they can prove undue hardship (see discussion above).
A suggestion was made that support orders might split some costs 50-50, which would mitigate some of the burden on custodial parents.
Some respondents said that judges should not determine the amount of child support. Others said that a judge should make the decision, but that they should take into consideration each unique situation in doing so (for example, taking into account unusually high access expenses and balancing those with the adverse effect that any reduction in child support could have on the children's financial circumstances).
Additional suggestions included the following:
- Judges should set the child support amount in proportion to the income of both parents;
- There should be tax breaks when support payments place a person in financial distress;
- A mediator, not a judge, should examine each parent's summary of expenses and then work with the parents to get agreement on access costs and the child support required;
- The reasons for high access costs should be examined, and then the negative impact of lack of contact between the parent and the children weighed against the negative financial impact of reduced child support;
- It must be shown that the children's standard of living is affected by high access costs;
- A formula could be used to calculate support and high access costs, while still recognizing all situations as unique;
- There must be timely reciprocal enforcement between provinces;
- In cash-poor communities, there should be other options for paying child support (for example, paying with meat, fish and groceries); and
- There must be a form of child support and child support enforcement that acknowledges the reality of all northern situations.
Respondents said that the support payments situation should be reviewed periodically to take into account changes in access or costs. Some people mentioned that software programs that help calculate child support amounts are useful when determining the standard of living of children in both households, including blended families. However, this software requires information from both households.
Child Support for Children at or Over the Age of Majority
Paying Child Support Directly to Children
Some respondents questioned whether the paying parent should have to continue to pay child support for older children to the receiving parent or be allowed to pay it directly to the children. Those in favour of direct payment suggested that this might ease tension between the parents. Those against direct payment stated that receiving parents still have costs, such as maintaining the home, to support their older children, even when those children are away at school for part of the year. They also felt that paying support directly to the children fails to recognize that child support is not an allowance for the children but is instead intended to defray the costs incurred by a parent arising from having responsibility for the children. A third option was also suggested: costs would be split and a portion of the support paid directly to the children while a portion continued to be paid to the custodial parent.
Some respondents raised other issues they felt would influence whether paying child support directly to the children would be appropriate, including the following:
- whether they were satisfied that the child support was being spent on the children;
- the ages and maturity of the children;
- the children's views; and
- whether the children were receiving counselling and education on how to spend the money.
These respondents also recognized that, in the absence of consent by the custodial parent or a court order, allowing a non-custodial parent to pay the children directly puts the children in the middle of a dispute between the parents, which is likely to be uncomfortable and awkward for the children.
Some respondents said that it was not important for receiving parents to agree to child support being paid directly to the children. They felt that the majority of receiving parents would not agree to this and that the decision should be left up to judges. Others felt that the input of receiving parents should be carefully considered, although their absolute agreement may not be necessary.
Providing Information About the Status of the Children
Some respondents suggested that receiving parents and older children should have to show that there is an ongoing need for child support to continue beyond the age of majority. They supported amending the legislation to require receiving parents to disclose certain information annually to paying parents. This would include information about the status of the children, such as schooling, living arrangements, employment and their finances. This requirement would apply in all cases when support is to be paid for children at or over the age of majority, not just in those cases that include special expenses. (Special expenses are those expenses, such as tuition for post-secondary education, beyond what is covered by the child support table amount. Under the guidelines there is a section that requires parents to produce records to justify all special expenses. However, this provision does not extend to producing information about other expenses that the parents may have that are related to the table amount or another amount paid for older children.)
Other respondents recognized that such a requirement might be intrusive. However, they felt that paying parents have the right to know this information. They also felt that providing this information might reduce conflict by quelling some paying parents' suspicions that their support is being misused.
Respondents also highlighted that, in situations of family violence or abuse, the information would have to be confidentially provided to a mediator or judge and not directly to the paying parent. The judge or mediator could then disclose the required information to the paying parent discreetly, without putting the receiving parent into a conflictual situation.
Child Support Obligations of a Spouse Who Stands in Place of a Parent
Currently, under some provincial and territorial legislation, the biological parent has the primary obligation to pay support, while the spouse standing in the place of a parent does not. Some respondents said that there was no need to structure the parents' obligations in this manner, as there are many circumstances in which the biological parent has played little, if any, role in the children's lives, while the person standing in the place of a parent has played quite a significant role. It was suggested by some that the guidelines should remove the primary obligation of the biological parent.
Most respondents said that the question of how child support should be allocated among natural parents and spouses standing in the place of a parent is quite complex and is largely driven by the facts of each case. Given that a wide variety of circumstances could arise, respondents suggested the following:
- Rigid guidelines would result in injustice in a large number of cases;
- The courts should continue to exercise discretion and allocate child support in a way that best suits each individual circumstance; and
- The guidelines should, however, provide that this discretion will not be exercised to reward a lower amount of support than that to which the children would otherwise be entitled.
Other comments included the following:
- What constitutes standing in the place of a parent differs by jurisdiction; therefore, the legislation must include a clear definition of stepparent and person standing in place of a parent;
- Stepparents should only contribute when they have played a parental role to the children during the marriage;
- It is not clear why a parent should receive money from biological parents and stepparents;
- The biological parent should pay the guidelines amount and consideration should be given to the costs of caring for any children in a new family arrangement;
- It is unethical for receiving parents to use their children as a "cash crop" and accumulate child support from multiple paying parents;
- The children should benefit from the financial support of all parents involved in their upbringing; and
- Judges should have the option to determine what approach would be most appropriate for each unique situation.
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