THE SURVEY OF CHILD SUPPORT AWARDS: INTERIM ANALYSIS OF PHASE 2 DATA

(October 1998 to March 2000)

CSR-2001-2E

PART 1: DIVORCE AND THE PROCESSING OF CHILD SUPPORT ORDERS (continued)

3.0 LEGAL CONTEXT OF DIVORCE AND IMPLEMENTATION OF THE FEDERAL CHILD SUPPORT GUIDELINES

Court systems that handle legal action regarding divorce and child support vary depending on the jurisdiction. These systems can be broadly identified as either a two-tiered system or a unified family court system.

In the traditional two-tiered system, matters under the federal Divorce Act are addressed in Superior Court by a federally appointed judge (Constitution Act, section 91). The Superior Court judge hears divorce actions and related corollary relief matters (including child support, spousal support, and custody or access) and may also address property issues under provincial or territorial legislation. In a two-tiered system, a provincial or territorial court judge may also deal with child support, spousal support, and custody or access if they are not part of the divorce proceedings. However, the provincial or territorial court judge may not deal with property issues.

In a unified family court, the judge hears all family-related matters, whether under provincial, territorial or federal legislation.

3.1 Types of Courts

As Table 3.1 shows, as of July 2000, New Glasgow, Truro and Yarmouth, Toronto, Edmonton, Calgary, Victoria, Yellowknife and Whitehorse had a two-tiered court system. In contrast, St. John's, Halifax, Sydney, Summerside, Charlottetown, Fredericton, Ottawa, London, Winnipeg, Regina and Saskatoon had a unified family court system.

Table 3.1: Types of Courts and Court Titles by Study Site (as of July 2000)
Study Site Two-tier system Unified family court Courts dealing with matters
under the Divorce Act
St. John's, Nfld.   X Supreme Court Trial Division
Halifax and
Sydney, N.S.
  X Family Division, Supreme Court of Nova Scotia
Other sites, N.S. X   Supreme Court of Nova Scotia
All Sites, P.E.I.   X Supreme Court of Prince Edward Island
Fredericton, N.B.   X Court of Queen's Bench, Family Division
Ottawa, Ont.   X Superior Court of Justice, Family Court
Toronto, Ont. X   Superior Court of Justice
London, Ont.   X Superior Court of Justice, Family Court
Winnipeg, Man.   X Court of Queen's Bench, Family Division
Regina and
Saskatoon, Sask.
X X Court of Queen's Bench, Family Law Division
Edmonton and Calgary, Alta. X   Court of Queen's Bench
Victoria, B.C. X   Supreme Court, Province of British Columbia
Yellowknife, N.W.T. X   Supreme Court of Northwest Territories
Whitehorse, Yukon X   Supreme Court of Yukon

3.2 Provincial and Territorial Legislation and Practice

In addition to the type of court, provincial and territorial legislation and judicial practice affect the process of divorce and use of the Guidelines. As of July 2000, most provinces and the Yukon had enacted legislation adopting the Guidelines for use in proceedings under provincial or territorial legislation. Quebec has enacted legislation adopting its own guidelines, which use a different model and apply to proceedings under both the federal Divorce Act and provincial legislation. Only Alberta has not yet given a clear indication whether it will adopt the Federal Child Support Guidelines for use in proceedings under provincial legislation. If a province or territory has drafted its own child support guidelines and the federal government has designated them, the only time they do not apply in cases of divorce is when the parents live in different jurisdictions.

The importance of judicial practice in encouraging the use of the Federal Child Support Guidelines should not be overlooked. Although Alberta has not formally enacted legislation to adopt the Guidelines for child support cases that do not involve divorce, most provincial Family Court and Queen's Bench judges appear to be using the Guidelines to deal with child support applications under provincial law. In the Alberta Court of Queen's Bench, this can be attributed to a practice directive from the Chief Justice requiring that the Child Support Information and Data Sheets (required Guideline forms) be submitted with all child support applications.

Paragraph 11(1)(b) of the Divorce Act requires that the judge, before granting a divorce, must "satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines." However, it is difficult to determine how actively judges scrutinize child support arrangements in situations involving consent agreements or uncontested applications. In Edmonton and Calgary, Family Law Information Centre staff must review all orders involving child support in all uncontested cases of divorce ("desk divorces"), as well as all applications (consent or contested) brought by unrepresented parties. In Edmonton, staff also review consent orders filed by lawyers.

Most jurisdictions require financial statements in contested divorce cases involving children. The legal requirement is usually established by the Rules of Court or Practice Rule.(1) Only Prince Edward Island and Newfoundland require filing of financial statements for child support applications pursuant to the Family Law Act in their province, and the Northwest Territories is considering this. In the Northwest Territories, practice directives require the use of financial statements. Under the Yukon divorce rules, financial statements must be filed if there are children of the marriage. In Manitoba, financial statements must be filed when a petition is filed if support is requested. Only in Alberta must the Child Support Information and Data Sheets (which include forms for determining income for the purposes of the Guidelines and the calculation of child support under the Guidelines) be filed in all cases to allow scrutiny of consent orders and uncontested desk divorce applications. In Ontario, financial statements are now required with the application in all cases requesting support or equalization of net family property (under the court rules). At many sites, it does not appear that financial statements are always required in cases involving consent agreements or orders, or uncontested applications.

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