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

(October 1998 to March 2000)

CSR-2001-2E

EXECUTIVE SUMMARY

In 1990, the Federal-Provincial-Territorial Family Law Committee began a study to address widespread dissatisfaction with the determination of child support. On behalf of the Committee, the Department of Justice Canada undertook a four-year program of research to help develop guidelines for determining child support award amounts in cases of family breakdown.

On May 1, 1997, the Federal Child Support Guidelines came into effect with the amendments to the Divorce Act. (The amendments to the Income Tax Act concerning the tax treatment of child support payments took effect on the same date.) The amendments to the Divorce Act require the Minister of Justice to review the operation of the Guidelines and report to Parliament before May 1, 2002. The Department's program of research must include preparation of a comprehensive review of the provisions and operations of the Guidelines.

The Federal-Provincial-Territorial Task Force on Implementation of the Child Support Reforms established a Research and Evaluation Sub-committee to help develop the comprehensive program of socio-legal research to support the review required by the 1997 Divorce Act amendments. Given the profound change in the way award amounts are calculated under the Guidelines, the Task Force and the Research Sub-committee members agreed that the first research priority was to collect information about support orders and variation orders made on or after May 1, 1997. This project provides information about the early stages of implementation of the Guidelines. It will also provide for ongoing or periodic collection of information from the courts until the end of March 2002.

This interim report summarizes the findings of phase 2 of the project, which began in the fall of 1998. The report is divided into two parts. Part 1 describes the processing of divorce cases involving child support orders, and documents issues related to the process at different sites involved in the project. Part 2 presents the results of the analysis of the data collected from the fall of 1998 through March 16, 2000.

General observations derived from the information presented in Part 1 are as follows.

Progress Towards Full Implementation

Based on site visits and follow-up telephone interviews, it is clear that court staff at the study sites are strongly committed to full implementation of the Guidelines. While the variation in the rate of change from site to site makes it difficult to study the implementation of the Guidelines, such variation also creates a natural experiment from which to draw valuable information.

Variations in the Process

Although all divorces in Canada are governed by the Divorce Act, and there are fundamental similarities in the divorce process across Canada, the report documents a range of approaches and programs for providing information that can affect how a couple may experience the divorce process, as well as variation in access to legal advice and administrative procedures that can help or hinder divorcing couples during the process. Further, the report highlights the importance of administrative supports in ensuring consistent treatment of spouses and children. These factors vary between study sites and within some jurisdictions. Therefore, the processing of divorce cases varies significantly in different parts of the country.

Importance of Standardized Administrative Procedures

The report documents the value of using standardized administrative procedures in implementing the Guidelines. Particularly important is the use of standardized court order forms to collect and list Guidelines information. In locations where standard procedures and forms have been implemented, use of the Guidelines is virtually universal.

Importance of Having Judges Commit to the Process

In locations where key judges actively support the Guidelines, implementation seems to be occurring faster. Practice directives from Chief Judges seem to be very effective in supporting the use of the Guidelines. The trend toward the implementation of unified family courts also seems to contribute to adoption of the Guidelines.

Highlights of the interim findings of phase 2 data are as follows.

Case Characteristics

  • A total of 14,067 cases were analyzed for this report.
  • The majority of orders (79.9 percent) were interim or final divorce orders or judgments, and 16.3 percent were interim or final variation orders.
  • The disposition of the majority of cases was by consent or uncontested (86.8 percent); 12.2 percent of cases were reported as contested.
  • The majority of cases reported legal representation for at least one parent (87.5 percent); mothers had legal representation in 76.3 percent of cases, and fathers in 63.3 percent of cases. Both parents had legal representation in 51.4 percent of the total cases.
  • The most frequent type of access reported was "reasonable/liberal" (51.5 percent), followed by "scheduled/specified" (23.1 percent).
  • In 10 percent of the cases, a spousal support amount was designated, usually payable monthly.
  • The majority of cases involved either one child (39.9 percent) or two children (44.4 percent).
  • A total of 2,459 children over the age of majority from 1,992 cases were reported.
  • In the majority of cases (80.4 percent), the mother had sole custody; the father had sole custody in 8.6 percent of cases. Shared custody (a child spends at least 40 percent of the time with each parent) and split custody (one or more children have primary residence with the mother and one or more children have primary residence with the father) were relatively infrequent at 5.3 percent and 5 percent, respectively.

Child Support Awards and Paying Parent Incomes

  • Data were available on monthly child support award amounts for 11,118 cases, representing 79 percent of the total. For all cases, child support amounts ranged from $1 through $8,366 per month, with a median value of $424.
  • In 55.6 percent of cases, the file indicated that the Child Support Guidelines were followed in determining the child support amount awarded. The second most frequently reported method for determining child support was a prior order or agreement that had dealt with child support (9.4 percent).
  • When total child support award amounts were examined in relation to the recorded amount from the Child Support Guidelines tables as provided in the order/judgment, the majority of awards were either the same as (65 percent) or greater than (29.6 percent) the table amount. Only 5.4 percent of cases reported award amounts that were less than the table amounts.
  • Annual income for the paying parent was specified in 75.8 percent of cases and ranged from $144 through $5,817,800, with a median income of $35,533. Annual income of receiving parents was specified in 43.8 percent of cases, and ranged from $333 through $2,568,900, with a median of $24,600.
  • When the amounts of child support awards were examined in relation to the income of the paying parents, the results indicated a steady increase in child support awards as paying parents' income increased.

Special or Extraordinary Expenses: Section 7

  • In the total sample, 31.4 percent of cases indicated that special or extraordinary expenses were awarded.
  • Of the cases that specified the monthly amount of the paying parent's share of special or extraordinary expenses, the total amounts ranged from $2 to $1,500, with a median amount of $108.
  • The most commonly awarded type of expense was child/day care expenses (12 percent of total cases). This was followed by medical/dental insurance premiums at 11.1 percent, and extracurricular activities expenses at 10.2 percent.
  • There was a strong tendency for the proportion of cases awarded support for special or extraordinary expenses to increase as income level increased. At the lowest income level, only 13.7 percent of cases were awarded compensation for special expenses; this proportion increased to 45.7 percent in the middle income range ($45,000-59,999) and to 53.2 percent at the highest income level.
  • The amount of special expenses awarded consistently increased as income levels increased.

Undue Hardship: Section 10

  • Undue hardship applications were identified in only 0.7 percent of the total cases in the sample.
  • Of the 94 undue hardship applications brought by the paying parent, 63 resulted in a decrease of the Guidelines amount, 19 were denied, and none resulted in an order amount higher than the Guidelines amount. The outcome of 12 applications was unknown or missing.
  • Of the eight undue hardship applications by the receiving parent, one resulted in an increase of the Guidelines amount, three were denied, and one resulted in an order that was less than the Guidelines amount. The outcome was unknown in three cases.

Variations

  • In 48.5 percent of variation cases, the applicant was the receiving parent. The paying parent was the applicant in 44.6 percent of variation cases, and in 6.9 percent of cases, parents were cross-applicants.
  • Of the cases in which a reason for the variation application was given, the most common reason was the implementation of the Guidelines (26.4 percent). This was followed by "change of income" (11.2 percent), "change in custody" (9.9 percent), and "child independent" (5.5 percent).
  • Of variation applications brought by the receiving parent, 51.5 percent resulted in an increase of the face-value amount, 21.5 percent resulted in a decrease, 2 percent resulted in a termination order, and 6 percent were denied.
  • Of variation applications brought by the paying parent, 10.7 percent resulted in an increase of the face value amount, 59.7 percent resulted in a decrease of the face value amount, 13.6 percent resulted in a termination order, and 2.6 percent were denied.
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