Research on Compliance with Child Support Orders and Agreements in Prince Edward Island

2003-FCY-1E

5. ANALYSIS OF INTERVIEWS WITH PARENTS AND PROFESSIONALS (cont'd)

5.3 The Separation Process

One of the key areas we were interested in exploring in the P.E.I. study was the extent to which the separation process itself might influence parents’ attitudes about their mutual responsibilities toward the children and, in particular, paying parents’ attitudes toward compliance with child support orders. The separation process was conceived as including both the decisions (and ways of making decisions) of the parents and the various aspects of the legal system that can come into play. This area was of interest because some literature suggests the process itself may influence compliance,[30] and also because, from the Department of Justice Canada perspective, this is an area in which there may be direct policy implications.

Underlying the examination of the separation process is the idea that if paying parents can emerge from the process with a sense of having been treated fairly, with a clear understanding of what their rights and responsibilities are with regard to the children, and with an understanding of what the children will need (financially and otherwise), they will be more likely to fulfil their support obligations.

Procedures that parents go through in separating or divorcing vary to some degree by province, and vary according to their particular circumstances and ability to agree on the important decisions that need to be made. At one extreme, parents are unable to agree by themselves or with the advice of lawyers on important elements of the separation, and the courts end up setting out the parenting and child support arrangements in an order, often after lengthy procedures. At the other extreme, some parents reach agreement (explicit or implicit) and never encounter lawyers, mediators or the courts. Those parents can become involved with the MEP when one of the parents seeks help to enforce the child support agreement the parents reached.

Parents who interact with the legal system usually start by one or the other of them consulting a lawyer. This initial step, according to the professionals and the parents we interviewed, can have a great impact on the direction the separation process takes. Some lawyers place a high priority on reaching an agreement between the parents, and may recommend mediation, counselling, financial advice and the newly available court-based parenting education program. Other lawyers (reportedly in the minority, but still in substantial numbers in P.E.I.) place a higher priority on maximizing the benefits to their own clients, and are more likely to take an adversarial approach.

When an agreement is reached with the assistance of a lawyer or a mediator, it is usually registered with the court as a consent order, and child support in those cases is often paid through the MEP. Most lawyers and mediators, we were told, recommend this approach because they believe that routing child support through the MEP will reduce the need for financial interaction between the parents (which can often be contentious) and increase the likelihood that support will be paid regularly. However, in some cases parents elect not to register with the MEP. In some of those cases, the agreement is subsequently registered with the court and the MEP when support payment problems arise.

Whatever aspects of the legal process parents encounter through their separation and the arrangement of their affairs, a number of factors may influence how they experience the process and, from the paying parents’ perspective, may influence compliance. These are examined below.

5.3.1 Parents’ Views of the Separation Process and the Resulting Arrangements

From interviews with parents, we obtained information that reflects the parents’ perspective on the way decisions were made about custody, visitation and child support, and what they thought of the outcomes of the process. Their comments on the process include views about the decision to separate, the decision about where the children will reside, the decision about interaction with the children by the parent who is not the primary caregiver, and the decision about child support. In addition, we looked at the parents’ satisfaction with the overall parenting arrangements that resulted, their opinion of the amount of the child support obligation, and their views of the legal system as they encountered it.

The decisions regarding parenting arrangements and child support are often made at the same time, or at least within a fairly tight timeframe, but the decisions are not necessarily explicit and can often be revisited or result in disagreements later on. Each of the four key decisions is discussed below.

5.3.1.1 The Decision to Separate

Descriptions of the separations themselves were often detailed, and at times indicative of the nature of the relationship that had existed between the parents. In analyzing the responses, we differentiated according to whether they said it was the recipient parent’s decision, the paying parent’s decision or a mutual decision. However, we realize that such an event cannot always be described in such stark terms. As the differences between the paying parent and recipient responses show, perspectives can vary. For example, a decision to separate at a given time by one partner might not be mutual on that particular day, but might still reflect mutual recognition that the relationship is failing.

This difference in perspective regarding who made the decision does not appear to matter in examining the link between perspectives on the separation and compliance. From either perspective, when the decision was characterized as mutual there is a greater likelihood of high compliance and a reduced likelihood of low compliance. Table 5.14 is based on paying parents’ characterizations of the separation, but the distributions are almost exactly the same using data from the recipient parents’ perspective. Also note that compliance is particularly low when the paying parent is seen as having made the decision to separate (although there are fewer of these cases with which to see a reliable pattern). In our sample, paying parents who decided to separate all left the family home and then became the paying parents. It may be that the decision to leave the family home and the (relatively frequent) resulting low compliance indicate a lesser commitment to the family in the first place or outside interests that limit post-separation commitment to the children.

Table 5.14
Compliance and Paying Parents Reporting who Made Separation Decision
Who made the decision High
compliance
Moderate compliance Low
compliance
% No. % No. % No.
Recipient parent 42 24 42 24 16 9
Paying parent 31 4 46 6 23 3
Mutual decision 57 16 32 9 11 3
Total 45 44 40 39 15 15
5.3.1.2 Decision About Where the Children will Reside

One might expect that if the decision about where the children would reside was decided without recourse to the courts, there would be greater likelihood of compliance with child support, because custody is so fundamental to the post-separation relationship. However, our data suggest the opposite: if agreement on custody is not reached at the outset and a court order is required, there is a greater likelihood of compliance with child support (Table 5.15). Of the ten cases for which a court order for custody was required at the outset, not one is in the low compliance category.

Table 5.15
Compliance and Paying Parent Reporting who Made Custody Decision
Custody decision High
compliance
Moderate compliance Low
compliance
% No. % No. % No.
Parents agreed 41 11 37 10 22 6
Recipient parent decided, paying parent didn't dispute 45 27 40 24 15 9
Court order required* 60 6 40 4 0 0
Total 45 44 39 38 16 15
* These are only cases where a court order was required at the time of separation to settle a disagreement about where the children would reside. We saw in Table 5.9 that many more cases have a court order for child support issued at a later date and that may include custody provisions.

This may be partly because decisions at the time of separation do not necessarily reflect a long-term view of what the two parties wish. For example, a parent moving out of the family home may not have a suitable place to reside with the children. As well, the parent agreeing to be the non-resident parent may be ill-equipped to care for the children adequately for a variety of reasons and may recognize this at the time of the separation, but may nevertheless not be satisfied with the resulting arrangements. A frequent description of the separations that occurred in our sample was that custody was never even discussed. Either the paying parent concurred implicitly that the recipient was the appropriate one to look after the children, or the non-custodial parent left the family home without thinking about the custodial arrangement. (These cases comprise the second category in Table 5.15, Recipient parent decided, paying parent didn’t dispute.)

Paying parents who report this kind of concurrence at the outset often later say they are dissatisfied. What may have been perceived as a mutual agreement at the time of separation is in retrospect seen negatively as the result of ex-partners who have controlled the decision-making process or as the result of discouragement with a system considered biased against paying parents. The language many of the paying parents use in discussing custody and access arrangements is remarkably passive, often including such phrases as “there was no choice”. As discussed in relation to Table 5.19 (Views on Fairness of the Legal System.) there are numerous possible explanations for the change of heart expressed by many of the paying parents. It appears, however, for whatever specific reasons, acceptance by the paying parent of the traditional notion of gendered parenting and marital obligations often shifts later to a more egalitarian conception.

The complaint about a system biased in favour of mothers when custody is concerned reflects a change of position for most of the paying parents in our sample who voiced it, since they themselves appear to have shared that bias at the time of separation.

5.3.1.3 Decision About Visitation Arrangements

Parents reaching an early agreement on visitation arrangements appear to show contradictory results—greater likelihood of high compliance, and greater likelihood of low compliance (Table 5.16). When a court order was required, there were no instances of low compliance.

Table 5.16
Compliance and Paying Parent Reporting who Made Visitation Decision
Visitation decision High
compliance
Moderate compliance Low
compliance
% No. % No. % No.
Parents agreed 52 16 26 8 23 7
Recipient parent decided, paying parent didn't dispute 41 18 41 18 18 8
Court order required 44 8 56 10 0 0
Total 45 42 39 36 16 15

The decision-making process for custody and visitation was in most cases the same, and it is difficult to make a clear distinction between cases where the parents agreed, and cases where the recipient parent decided and the paying parent didn’t dispute the decision, because either one may have resulted from immediate circumstances that didn’t necessarily reflect an abiding view of what arrangement would be best. It is apparent, though, that early parental agreement on custody and visitation often results in high child support compliance, but can also be a precursor to low compliance (22 percent and 23 percent respectively of cases in our sample where the parents reached an agreement).

This finding is consistent with what we heard from lawyers, social workers and others professionals interviewed for this study. They have found that in working with separating parents to reach decisions for the future, parents tend at the very early stages to be highly emotionally charged (usually very upset and at times extremely angry or resentful), and that this can limit their ability to make the best decisions, either with their partners or in dealing with legal counsel or mediators.

5.3.1.4 Decision About Child Support

The early arrangement for child support is different from that for custody or visitation because it does not necessarily have to happen. One way or the other, a living arrangement for the children is established at the time of the separation, and the non-resident parent (both parents could, of course, be non-resident with the children, but there were no such cases in our sample) spends some time with the children or does not—there is a defacto arrangement made. In the case of child support, our sample indicated that frequently no arrangement is made at the outset. In many cases, there is simply no child support provided until a formal arrangement is agreed to later through lawyers or mediators or the court. Some custodial parents decide early on to seek help in obtaining support because it is obviously needed or they consider that they have a right to it. Others report not wanting to bother because they want to sever the relationship with their partner or because they have no expectation that support will be forthcoming in any case.

In comparing cases when an agreement was reached on child support with cases for which a court order was required (or no support was forthcoming at all for an extended period), the support agreements show a greater likelihood of high compliance (52 percent compared to 40 percent), and also a somewhat greater likelihood of low compliance (18 percent compared to 13 percent). This, again, is consistent with the findings on custody and visitation decisions.

Mediation is increasingly recommended to parents by family law lawyers as a way to reach agreement on contentious separation issues without having to resort to the courts. This is the case in P.E.I. as elsewhere in Canada. Our sample of cases ranges considerably as to how long they had been registered with the MEP at the time of the research. Many of the cases were well established before mediation became popular. However, in 15 cases the parents went to a mediator, and we were interested to see whether the mediation process might have had an influence on child support compliance. Notably, only one case among those 15 falls into the low compliance category. The remaining 14 cases are equally divided between the high and moderate compliance categories. Research in other provinces, where numbers of relevant cases will be higher, will be able to shed more light on the influence of mediation.

To summarize, in looking at the parents’ descriptions of the decision-making process at the time of separation, we have seen that when agreements (explicit or otherwise) are reached at the time of separation or soon afterward, there is a greater likelihood of high compliance and also a greater risk of low compliance. In many cases, the early agreements appear to reflect a lasting view of what is acceptable to both parents, or else those parents revise their agreements so that compliance with child support is maintained. In many other cases, however, the agreements appear not to be lasting, and lack of due consideration at the time of separation, or lack of input from mediators, lawyers or the court, results in circumstances that appear to contribute to low compliance. The kinds of early agreements (explicit or implicit) that determine a great many post-separation parenting arrangements, and how they are arrived at, appear to be important factors that warrant focussed attention in future research in other provinces.

5.3.1.5 Parents’ Views on Parenting Arrangements

In the subsections above, we examined parents’ descriptions of the process by which orders and agreements were established. Here we are interested in parents’ views of the resulting arrangements for parenting and child support. With regard to the parenting arrangement, our presumption was that paying parents who are satisfied with the living and parenting arrangements would be more likely to comply than those who are not satisfied. Contrary to what we expected, the modest differences between the two groups in terms of compliance shows that those not satisfied were only slightly more likely to have a high compliance record and less likely to have low compliance.

Dissatisfaction with the current arrangements is particularly interesting in light of our earlier finding that the decisions regarding custody and access arrangements were made with little or no opposition from the paying parents (in contrast to support arrangements, which appear to have been more readily resisted). For whatever reason, many paying parents who were initially satisfied with (or perhaps resigned to) the arrangement express dissatisfaction in the present. It is unclear whether this is due to genuine regrets about changes in the paying parent-child relationship wrought by the arrangement, a response meant to portray greater parental involvement than circumstances would suggest, dissatisfaction with currently perceived unfairness between support obligations and entitlements or privileges as a non-custodial parent, or some other reason. Some paying parents said that if they had the children with them for a greater proportion of the time, they could pay less support.

5.3.1.6 Parents’ Views on Child Support and Compliance

To identify possible reasons for parents’ compliance or non-compliance with their child support arrangements, we recognized that it would not be sufficient to simply ask paying parents in default why they hadn’t been paying. First of all, there is a strong possibility that they would not see it as in their interest to suggest reasons other than an inability to pay. Also, we recognized that in interview situations such as we conducted, there is a propensity for respondents to answer sensitive questions in a way that will describe them in a positive light. In fact, some of the respondents who are recorded at the MEP as being in default told us they were up to date with their support payments (the recipients’ perspective was more in line with the MEP record). Finally, we expected, based on previous research,[31] that the reasons for compliance and non-compliance would in many cases be complex and include a number of interrelated elements. Our approach has been to address the issue from a number of different angles. We did, however, ask paying parents and recipients some questions directly related to the payment of support.

We anticipated that paying parents who were satisfied with their support obligation would be more likely to be compliant than those who expressed dissatisfaction. Asked whether they considered the amount of child support they were required to pay was reasonable, two-thirds of paying parents said they believed the amount was unduly high. However, those paying parents who were dissatisfied with the size of their support obligation were more likely to be compliant than those who reported being satisfied. The “dissatisfied” paying parents were, as we had anticipated, also more likely to be low compliers (Table 5.17). This apparently contradictory finding suggests that the amount that paying parents are required to pay may be less relevant than other factors, including the fact that they have to pay support at all.

Table 5.17
Compliance and Paying Parents’ View of Child Support Obligation
View of child support obligation High
compliance
Moderate compliance Low
compliance
% No. % No. % No.
Satisfied 42 8 53 10 5 1
Dissatisfied 50 16 38 12 13 4
Total 47 24 43 22 10 5

Paying parents who expressed dissatisfaction with the child support they were obliged to pay were asked to elaborate. The predominant reasons given for the dissatisfaction were related to ability to pay. Some paying parents also cited reasons having to do with willingness to pay. The reasons given by 50 respondents are provided below. In some cases, several reasons were given, and in others, no reason was given.

With respect to ability to pay, reasons cited were:

  • support amount too high for income (12 respondents);
  • amount doesn’t take into account employment fluctuations (11 respondents);
  • too many other expenses (5 respondents); and
  • new family to support (5 respondents).

With respect to willingness to pay, reasons cited were:

  • no say over how children are raised (4 respondents);
  • no say over how money is spent (4 respondents);
  • she has new partner and he should pay (4 respondents);
  • recipient parent spends money on herself (3 respondents); and
  • not enough access to the children (2 respondents).

For reasons discussed above, it is difficult to draw conclusions based on these responses, except to note that there are quite a variety of reasons offered and that both ability to pay and willingness to pay (or perceptions of unfairness) are suggested. In some cases, even when unwillingness to pay was not expressed in response to our questions, it showed up elsewhere in the interview. When this occurred, the usual theme was a suspicion or resentment that the money was not fully benefiting the children, or that the ex-partner was not in need of the amount being paid. More than two-thirds of paying parents said they were currently up to date with their payments (whereas we know that in the sample of cases for which the paying parents themselves were interviewed, fewer than 50 percent were in full compliance at the time of the interview).

Recipients of child support had a somewhat different perspective on why they had difficulty in getting the support they were entitled to. Of the 79 recipients interviewed, 47 indicated that they had experienced difficulties obtaining their support. The reasons they suggested (which many readily admitted were speculative) were related to ability to pay:

  • employment problems (5 respondents);
  • unable to pay for some other reason (3 respondents);

and to willingness to pay:

  • too angry with me, regardless of kids (8 respondents);
  • unwilling to pay for some other reason (7 respondents);
  • no idea at all (7 respondents);
  • places higher priority on other expenses (6 respondents);
  • only thinks about himself (5 respondents);
  • doesn’t realize the cost of raising kids (3 respondents);
  • thinks I use money for myself (3 respondents).

It is clear that from the recipients’ perspective that willingness to pay factors are predominant. In the interviews, recipients commonly pointed out that while they were sure money was tight for the paying parent, they nevertheless managed to find a way to cover their car or truck payments and other expenses that are arguably less critical than providing for their children. We cannot assume, of course, that recipients had full knowledge of their former partners’ financial situations, nor can we ignore the possibility that their responses may have been influenced by their own feelings about their former partners and the difficulties that non-compliance had caused for them. The fact that so many recipients cited “unwillingness” by their former partners as the reason for their non-compliance suggests, at least, a mistrust that in itself may be indicative of the kinds of relationships that foster non-compliance.

5.3.1.7 Parents’ views of the legal system

In the interviews with parents, we asked them to describe in their own words what they thought of the legal system for separation and divorce, including child support. They were prompted as well to comment on whether the system was usually fair to both recipient parents and paying parents, or was unfair to one or the other. While recording the open-ended responses to these questions, the interviewers also noted whether particular elements of the system were the subject of either positive or negative comments.

As Tables 5.18 and 5.19 indicate, there were some differences in the perspectives of the paying parents and recipients, but in general it is fair to say that the “system” was not highly regarded by many of the parents in our sample. As predicted by the professionals we interviewed, lawyers especially were identified as being a major source of complaint. Seventy percent of the paying parents and 40 percent of the recipients of child support complained about their lawyers without being prompted, primarily relating to their high cost, but also in terms of what they got out of the legal process and whether they felt their lawyer(s) had been looking out for their best interests. It is important to note that often their only contact with the system had been lawyers or mediators and the MEP office—most did not go to court for a hearing. Their views of the system (and of lawyers) often reflected other sentiments they expressed, for example, that the system was unable to give them what they viewed as fair (reliable and sufficient child support or, in the case of some paying parents, adequate consideration of their own financial obligations or value as parents).

Table 5.18
Opinions of the Legal System
Opinion Paying parent's perspective Recipient parent's perspective
% No. % No.
System generally good 18 9 22 17
Some aspects good, others not 24 12 33 25
System generally not good 58 29 46 35
Total 100 50 100 77
Table 5.19
Views on Fairness of the Legal System
View on fairness Paying parent's
perspective
Recipient parent's perspective
% No. % No.
System fair to both parties 27 11 41 25
System unfair to men 66 27 2 1
System unfair to women 0   39 24
System unfair to both parties 7 3 18 11
Total* 100 41 100 61

* The nature of the responses regarding general opinions of the legal system and its fairness were interpreted from the responses to open-ended questions. Table 5.19 reports only those cases in which respondents made specific reference to fairness, without being prompted.

If the views of paying parents about the legal system relate to compliance, we might expect that those who think the system works well and is fair would be more likely to be in compliance than those who have a negative view of the system. But in our sample, those with the highest opinion of the system proved least likely to be in the high compliance category (33 percent, compared to 52 percent among those who said the system was generally not good, and 42 percent among those who said some aspects were good and others were not). Even paying parents deemed to be fully compliant over long periods of separation sharply criticized the system, usually for a purported lack of connection between support and custody or access. These findings suggest that while parents’ view of the legal system may be quite negative, this does not typically translate into a decision not to comply with an order or agreement.

To summarize, paying parents reported a high level of dissatisfaction with the arrangements they had for parenting and child support, even though in a majority of cases there was initial agreement (explicit or otherwise) about who the children would reside with and what kind of contact would be maintained by the non-resident parent. However, this dissatisfaction did not appear to influence the likelihood of compliance with child support. In fact, parents who were unhappy with the amount of child support they were expected to pay were more likely to be in compliance than those who said they were satisfied. Since it is unlikely that the dissatisfaction in itself promotes compliance, it would appear that other factors are more important.

In explaining non-compliance, paying parents referred most often to their inability to pay, whereas recipient parents said that “willingness to pay” factors were more likely the reason for defaults.

Both paying and recipient parents expressed a poor opinion of the legal system for separation and divorce, and cited their lawyers in particular as being a problem. However, dissatisfaction with the legal system, as they encountered it, did not appear to influence compliance.

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