Final Federal-Provincial-Territorial Report on Custody and Access and Child Support

A. INTRODUCTION

Child support guidelines are the rules and tables that the courts must follow in determining the amount of a child support order.  Amendments to the Divorce Act establishing the framework for the guidelines and the Federal Child Support Guidelines Regulation came into effect May 1, 1997.  All the provinces and territories also have enacted child support guidelines legislation.  With the exception of Quebec, the provinces and territories adopted the federal guidelines or enacted a modification of them.  Quebec has its own child support guidelines.

Part of the legislation adopting the Divorce Act child support guidelines required that the federal Minister of Justice report back to Parliament by May 1, 2002.  In 1999, the federal Department of Justice consulted on technical issues related to the child support guidelines through distribution of a paper for public response.[131]  An interim report on child support guidelines was provided by the Standing Senate Committee on Social Affairs, Science and Technology.[132]  The 2001 public consultations, Putting Children's Interests First,[133] invited responses on four issues:

The Family Law Committee believes that, in general, the guidelines have succeeded in providing a reasonable basis upon which parties can determine their level of responsibility for child support, in encouraging parties to accept and pay child support and in raising the general level of child support available to children.[134]

While the guidelines have been largely successful, parents, lawyers, judges and others have identified issues that require further work to improve the guidelines.  These issues will not require major changes to the guidelines, merely fine-tuning.  The intent is to provide greater clarity while maintaining flexibility.  It is noted that any change to terminology in the Divorce Act would, of course, require changes in the child support guidelines provisions in the federal, provincial and territorial legislation.

Taking into account the results of the 2001 consultation as well as previous consultations on other issues, research results and case law analysis, the Family Law Committee makes the following recommendations.

B. LEGAL PROCESS/LEGISLATIVE ISSUES

Shared Custody

When a parent exercises access to, or has physical custody of, a child for forty percent or more of the year, the court may order a support amount different from the amount prescribed in the guidelines.  In making such a decision, the judge considers the table value for each parent, the extra costs of shared custody and the condition, means, needs and other circumstances of each parent and any child for whom support is sought.

The 40 Percent Rule

Although the use of a threshold based on time has been criticized because of the direct link between child contact and support, no alternative has been found that can demonstrably improve the test.  Although many other proposals have merit, none simplifies the court process and each represents a radical departure from the status quo.  Departure from time as the basis for the threshold test would result in significant uncertainty and increased litigation, contrary to the objectives of the Guidelines.

Selecting a higher time threshold such as substantially equal has some advantages.  However, they are somewhat outweighed by other factors.  These factors include the potential for increased litigation over the meaning of the term; unfairness to parents with high access time; and uncertainty as to whether this would actually reduce the link between child contact time and child support, leading to a decrease in litigation.

There is an established body of case law interpreting the section and parents and legal professionals are familiar with it.  However, the case law will continue to be monitored.

Recommendation 33

It is recommended that no change be made to the 40 percent threshold rule.  However, further guidance should be provided in the child support guidelines on how to determine or analyze the elements that contribute to the determination that the 40 percent rule has been met.

Presumptive Formula

It is proposed that the current factors used to determine the amount of support in shared custody situations be replaced by the use of a presumptive formula.  A judge will determine the support amount by applying the prescribed formula, unless that amount is inappropriate.  The proposed formula amount is the difference between the table values for each parent (set-off formula).  The introduction of a presumptive formula is intended to increase predictability and certainty while maintaining overriding judicial discretion to order another amount in the appropriate circumstances.

The set-off formula will be determined having regard to the table values for the total number of children for whom the parents maintain a residence.  In determining the appropriateness of the formula amount, the court may consider any relevant factor, including how the spouses share the children's expenses.

The set-off method accounts for the increased costs of maintaining a residence because each parent's contribution will be based on the total number of children for whom the parents maintain a residence.  This is different from split custody situations where the table values only account for the number of children in each parent's care.  The set-off method is consistent with the guideline approach that requires each parent to contribute to the maintenance of the children in accordance with what he or she would contribute if the family were intact.

Use of a presumptive formula simplifies the determination of support and provides certainty and predictability.  It gives parents and courts more direction in determining the amount of support in shared residence situations while maintaining flexibility.  Overriding judicial discretion to depart from the formula in appropriate cases means that unfair amounts should not be ordered.  Many courts are already applying this test in appropriate cases.

Recommendation 34

It is recommended that the current factors used to determine the amount of support in shared custody situations be replaced by the use of a presumptive formula.  The formula amount would be the difference between the table values for each parent given the total number of children in the shared custody arrangement, unless that amount is deemed inappropriate based on, for example, how the parents share the child's expenses.

Definition of Extraordinary Expenses

Section 7 of the Guidelines provides that six categories of special child-related expenses can be included in the child support amount if they are reasonable and necessary in light of the needs of the child, the means of the parents and the child and any family spending pattern established prior to separation.  Included in those categories are extraordinary expenses for education and extracurricular activities.

The term extraordinary has been interpreted differently across the country.  This has created some confusion and inconsistency in application resulting in calls for an explanation of the term.  It is therefore proposed that section 7 be amended to add a definition of the term extraordinary.  Parents and courts will be directed to examine whether the expense is extraordinary in relation to the income of the parent requesting and paying for the expense.  If an examination of the income is insufficient to determine whether the expense is extraordinary, parents and the court will be directed to consider other factors in addition to income.  This reform would model the changes that Manitoba has made to its legislation.  These other factors will include:

The proposed approach is consistent with the original intent of the section and with the interpretation adopted by several appeal courts.

Recommendation 35

It is recommended that the term extraordinary be defined in the Guidelines.

Support for Children at or Over the Age of Majority

Many people have argued that older children receiving support should be accountable and provide financial and other information to demonstrate continued entitlement to support.  Others say this is an unnecessary breach of the older child's privacy that also has the effect of involving the child in the parent's litigation.

It is proposed that the Guidelines be amended to require disclosure of information relevant to the child's entitlement to support.  This would ensure transparency and accountability.  The amendment will require the recipient parent, not the child, to provide the information upon the written request of the paying parent, thus insulating the child from direct involvement in the litigation.  This requirement would apply in all cases where support is to be paid for children at or over the age of majority, not just in those that include special expenses.

Special expenses, such as tuition for post-secondary education, are those beyond what is covered by the child support table amount.  Under the Guidelines, there is already a section that requires parents to produce information regarding the status of any special expenses.  However, this provision does not extend to producing information about ongoing eligibility and other expenses that may be paid with the table amount or another amount paid for older children.

Recommendation 36

It is recommended that no change be made to the provisions regarding the eligibility for support of a child over the age of majority.

Recommendation 37

It is recommended that the Guidelines be amended to require recipients of support for children over the age of majority to disclose information respecting the child's ongoing eligibility for support.

Undue Hardship Test

The undue hardship provision recognizes that, in some circumstances, payment of the table amount, or the table amount plus special expenses, can cause a parent or a child to suffer undue hardship.  This section permits courts and parents to decide upon a different amount, in appropriate cases, in order to relieve this hardship.  The undue hardship provision is intended to balance the Guidelines objectives of consistency and a fair standard of support, taking into account the particular circumstances of any given family.

The undue hardship provision has been criticized because it has been restrictively applied for parents who seek to decrease the support amount, notably when access costs are high for paying parents who reside far from the child.  Courts are presently reviewing these situations on a case-by-case basis and, for the most part, are applying the section as intended.  In many mobility cases (paying parent residing far from the child), courts are making provisions for high transportation costs incurred by the parent exercising access by way of a separate order.

Recommendation 38

It is recommended that no changes to deal specifically with high access costs be made to the guidelines.  These situations should be dealt with on a case-by-case basis and any accommodation appropriate to a particular case should be addressed as part of a custody and access order.

Obligations of Those Who Stand in the Place of a Parent

Spousal and family relationships of varying permanence, and blended families, have become more common in Canadian society.[135]  A person who acts as a parent to a child may have a legal obligation to support that child after the relationship with the other parent ends.

Currently, the Divorce Act defines a child of the marriage (a child eligible to receive child support) as a child of two spouses or former spouses, including "any child of whom one is the parent and for whom the other stands in the place of a parent."[136]  Most provinces and territories have adopted a similar definition in their own legislation or have defined a child as "a child in relation to whom a person has demonstrated a settled intention to treat as a child of his or her family."

Once it has been established that a step-parent stands in the place of a parent, the step-parent's obligations are similar to those of the natural parent.  The child support guidelines allow courts to set a child support amount they consider appropriate in these cases.  When making this decision, courts must take into account the amount set out in the guidelines and the legal duty of any parent other than the step-parent to support the child.

Courts have adopted a variety of approaches to this issue and, in light of the resulting inconsistencies, some people have argued that the regulations should give judges explicit direction about how the amount of support for stepchildren should be determined.  However, the question of how child support should be allocated among natural parents and step-parents is quite complex and is largely driven by the facts of each case.  A rigid formula could create unfair results.  Most respondents expressed this concern during the consultation process.[137]  For all these reasons, it is recommended that this section not be amended.

Recommendation 39

It is recommended that no changes be made to the provisions in the child support guidelines respecting the obligations of those who stand in the place of a parent.

Child Support Tables

The federal child support tables set out the amount of monthly child support payments for each province and territory on the basis of the annual income of the parent ordered to pay support and the number of children for whom a table amount is payable.  The amounts vary from one jurisdiction to another because of differences in provincial income tax rates and certain credits.  When the Federal Child Support Guidelines were adopted, the intent was for changes to be made to the tables when changes to the tax rates significantly affect the table amounts.

Recommendation 40

It is recommended that the child support tables be updated every five years, or more often, if there are changes to federal, provincial or territorial taxes that would have a major impact on the table amounts.