EXPEDITED CHILD SUPPORT

An Overview of the Commonwealth Countries'
and United States' Procedures for
Establishing and Modifying Child Support

Part 3
General Observations

Some of the jurisdictions canvassed in this report have implemented workable child support models; however, the societal and legal factors existing in each place should be borne in mind. Public opinion and cooperation among the agencies involved in administration have allowed for the development of these systems.

A. The Canadian Context

Here in Canada, the legal context is influenced both by Section 96 of the Constitution Act 1867 pursuant to which "Judges of the Superior, District and County Courts in each Province" are appointed. The Supreme Court of Canada has established that there are certain functions of the judiciary that cannot be removed from that decision-making forum.

In most provinces, there are two levels of court with jurisdiction over various aspects of family law. In British Columbia, for instance, both the provincial and the supreme court are involved in establishing family orders. This dual system poses unique challenges in Canada in regard to setting up a workable system to administer child support.

B. Influencing Factors and Child Support Administration

In many places outside Canada, child support has been separated out, at least in some instances, as an exclusive and distinct issue. The reasons for the prioritizing and separating out of child support are numerous, but some of the major influencing factors are listed below.

  1. Heavy burden on social assistance programs: this is attributed to the failure of non-custodial parents to pay child support to custodial parents in many cases, resulting in a significant number of single parents relying on government assistance.

  2. Lack of adequate follow-up enforcement of court-ordered support: integrated child support schemes, from the establishment stage to the enforcement stage, are seen as a means by which to ensure the non-custodial parent's accountability in all situations where required.

  3. Court backlog and considerable delays: as discussed in this report, there is some dispute about whether child support systems speed up the process, particularly in those jurisdictions where full-scale administrative processes have been implemented. In the administrative process, some bureaucratic delays have been observed.[126]

  4. Inconsistency in levels of court-ordered support: the administrative agencies ensure consistency; however, in most jurisdictions where the court remains operational, judges are also applying the guideline standards unless aggravating or mitigating factors come into play in the particular circumstances of the case.

  5. An increasing number of pro se or unrepresented parties attending at family court on their own behalf: child support was identified as one issue that could be sorted out through calculation prior to a party's need to attend at court.

There are advantages and disadvantages to dealing with child support as an exclusive and independent issue. On the one hand, some proponents of the existing system hold that it allows for decision-making to be much more straightforward and uncomplicated. There is the view that because questions of child support arise primarily out of financial data, many of the considerations are somewhat mathematical in nature and plug into established formulae much more readily than other family issues could. The nature of child support decisions, then, lends itself more readily to a structured administrative process. Further, there is the argument that a regimented and exclusive child support system prevents the blurring of child support with legally irrelevant issues and threats relating to visitation and other matters.

On the other hand, some would argue it is not possible to put aside other issues while focusing solely on child support. According to the latter perspective, family law does not readily lend itself to compartmentalization. Without a forum to openly discuss and weigh all aspects of the case, the non-custodial parent or obligor may go away from the process feeling that his or her concerns were not addressed, particularly when there is a requirement to then participate in another unrelated process to settle other outstanding issues.

In 1990 in the United States, the federal government found it necessary to address this issue in response to numerous concerns expressed by advocacy groups representing non-custodial parents. These concerns centred on "the unparalleled level of legislative activity dealing with child support in the last decade [which] had not been matched by attention to the enforcement of parental rights to children."[127] In response, a number of pilots were set up, all with varying levels of success.[128]

Further studies have looked at the interrelatedness of support and access and have concluded that the two issues should be addressed together. Jessica Pearson and Jean Anhalt of the Center for Policy Research in Denver, Colorado report that research conducted in several states found that "most mothers (76 percent) and fathers (64 percent) said that they favored joint consideration of the two issues in a single intervention." [129]In a lot of areas of the United States, visitation programs designed to use conciliation and mediation techniques do not consider support issues because of the child support agencies' mandate in that area.

In a publication released by the United States Department of Health and Human Services, contributor Karen Czapanskiy emphasized the relationship between child support and visitation:

... child support is not fully disconnected from visitation ... The first interconnection is that the basic amount of child support which will be ordered in most states is intended to cover only the time the child is in the household of the custodial parent ... The second interconnection is that, in many states, the basic child support obligation is adjusted when parents are to share physical custody of the child.[130]

Sometimes, there are other outstanding issues, such as property division and variations of custodial arrangements, that affect child support arrangements. The guidelines in place from one jurisdiction to the next incorporate different factors as relevant to the determination of how much child support is owed. In the United States, three predominant approaches have been identified. They are outlined below.

  1. Percentage of Obligor Income Model: This approach determines child support based on a percentage of the obligor's income and number of children. This percentage is based either on gross or on net income. Most jurisdictions applying this model do not adjust for extenuating factors such as additional dependents; child-care, medical and other extraordinary expenses; and shared or split custody. Among those states that have adopted this basic approach are Wisconsin, Minnesota, Georgia, Mississippi, Nevada, New York, Alaska, Arkansas, Illinois, New Hampshire, North Dakota, Tennessee and Texas. This is also the model used as a foundation in the United Kingdom, Australian and New Zealand systems.

  2. Income Shares Model: This approach is based on the idea that the child should have the same level of support that he or she would have if the parents lived together. In computing income shares support, a number of factors including various custodial arrangements are taken into consideration. The level of support is computed on the basis of the parents' combined income. This model has been adopted by 32 states (in addition, Massachusetts and the District of Columbia combine elements of the percentage and income shares models).

  3. Delaware Melson Formula: In this approach, provision is made for each parent's minimal self-support needs, the children's primary support needs, and a standard of living allowance over and above the basic support needs. Based on these three factors, each parent's obligation toward the child is calculated and it is assumed that the custodian's calculated living allowance is already being applied toward the child. The non-custodial parent's share would be calculated as child support payable. This formula provides adjustment for equally shared joint custody and for additional dependents. States where this formula has been introduced include Delaware, Hawaii, Montana and West Virginia.[131]

The guidelines, then, set the parameters for the relative importance of other factors.[132]

C. The Use of Mediation

In recent years, there has been a major shift toward utilizing alternative dispute resolution methods as much as possible in regard to addressing a number of family law issues. One of the most commonly used alternative dispute resolution methods is mediation. The concept of mediation has developed to encompass "a wide variety of practices ranging from court conferences strongly suggesting settlement to exercises in moral development."[133]

It is unclear how amenable to mediation the issue of child support would be, particularly if dealt with as an independent issue. It would seem more workable to utilize mediation for a number of outstanding family issues, support possibly being one of those issues.

A consideration worth keeping in mind is whether an administrative process would provide the appropriate context for offering comprehensive mediation services. In the early 1990s, the United States federal government set up a number of "child access demonstration projects" in various locations around the country aimed at "alleviating parental conflict, reducing interference with visitation rights, and encouraging full, voluntary compliance with child support obligations."[134] The IV-D offices in two different counties in Indiana, Lake County and Marion County, administered two of the initial projects. Through these projects, child support agency personnel provided mediation services to those parties who had identified access disputes on the intake form, which was completed during an initial visit to the Child Support Agency.

However, the projects were considered to be unsuccessful. Often, the parents did not state that they were dealing with any other outstanding contentious issues. In addition, the attendance rate for scheduled mediation sessions was abysmally low, ranging from 91 to 94 percent failure to attend. Researchers David Price and Jessica Pearson suggest the low attendance rates are more than likely the result of one of three factors:

  1. the fact that the overture to mediate came from the Child Support Agency, which was mistrusted by non-custodial parents;

  2. the lack of a mechanism to compel parents to attend; or

  3. the lack of staff effort to contact parents, accommodate them and reschedule missed appointments.[135]

Workable models have been implemented in the area of child support, as discussed in this report. The use of mediation and other alternative dispute resolution approaches is rapidly exploding throughout many jurisdictions. For instance, in 1994, the United States National Center for State Courts estimated that, across the nation, there were approximately 205 operational programs offering court-based or annexed divorce dispute services, of which a considerable number included some form of divorce mediation. In addition, there are innumerable private mediation and other dispute resolution programs not even included in this statistic.[136]

Although mediation has also been introduced with some success for child support issues, there is considerable debate about the effectiveness of mediation in this area. Opponents of child support mediation argue that when there are guidelines in place, there really is not anything left to mediate because, often, figuring out child support will involve plugging numbers into a predetermined and fairly rigid formula.

This theory holds particularly true for parents on welfare who, according to the legislation in the given jurisdiction, are under an obligation to seek the highest child support possible. For these individuals, there may not be anything left to negotiate.

Considering mediation in its broader context, a number of scholars have looked at the effectiveness of this alternative dispute resolution mechanism. Richard McLaren and John Sanderson suggest "the development of dispute resolution mechanisms which will reduce the occurrence of disputes and channel them toward early resolution is the best prophylactic step to be taken in pursuit of dispute resolution."[137] They further express the view that, in order to be successful, a mediation model would have to facilitate "expediency, commitment and reevaluation." [138]

In regard to the specific issue of child support, Joan Kelly states that no difference has been found between mediated and litigated processes, although there is some evidence that the non-custodial parent may be more inclined to cooperate with child support arrangements if he or she has gone through mediation.[139] This view that mediation promotes good will, which may have its own intrinsic value, is shared by Andromache Karakatsanis, who states, "A formal, legalistic and confrontational process is avoided and the parties are accountable for their own solutions. This is particularly beneficial where there is an ongoing relationship between the parties."[140] This latter statement certainly applies in the situation where parents must settle the issue of ongoing support for their child or children.

On the other hand, various commentators question the effectiveness of mediation in certain situations. For instance, Andromache Karakatsanis suggests that if "parties are unequal or entrenched in their positions, the case may be an unlikely candidate for mediation."[141] Ruth Phegan argues that "mediation may be a gentler technique than the system of juridical right, but equating ‘gentler practices' with ‘more humane' leaves paternalism and the violence it sometimes more and sometimes less successfully masks, steadfastly in place."[142] Jacqueline Nolan-Haley cites other criticisms of the mediation approach, which include "fail[ure] to protect public values ... inferior justice for poor people, and [forgoing of] several constitutional rights."[143] She also mentions the concern that a heavy emphasis on alternative dispute resolution approaches such as mediation will result in a replacement of "the rule of law" with "non-legal values" due to parties operating outside the formal legal system.[144] A further problem is that, if ineffective, mediation could add more expense and complications, which could be capitalized upon by a party seeking to delay the process.[145]

In order to remedy some of these potential difficulties with adopting mediation, Andromache Karakatsanis emphasizes the importance of using a mediator with a level of expertise in the field, which is said to "enhance the effectiveness of mediation."[146]

The effectiveness of mediation may ultimately prove to be a function of the number of issues requiring attempted resolution in this forum. As previously discussed, a major criticism of some of the existing administrative schemes in other jurisdictions focuses on their characteristic failure to address some of the non-custodian's concerns. As outlined in this report, some commentators hold the view that a negative opinion on the part of the non-custodian will lead to unwillingness to cooperate, increased frustration and, often, complete avoidance of the system. Attempts at mediation or some form of negotiation early in the process have proven effective in certain jurisdictions. Another potential means of addressing non-custodial parents' concerns would be to provide some form of financial guidance, as required. This service could function as either an add-on or an alternative to another approach, such as mediation.

D. Additional Considerations

Clerical Functions

Beyond the mediation process, if incorporated, someone in a clerical role may be able to perform the basic child support calculations. In Quebec, it is anticipated that a "special clerk," someone already operating within the court process in that province, will carry out these functions in addition to making quasi-judicial child support decisions. In California, the calculation function can be performed through a child support software package, "SupporTax," marketed by the Rutter Group[147] to attorneys and the judiciary within the state. Advancing computer technology offers possible solutions to the somewhat clerical task of applying set guidelines to definable financial data.

Establishment vs. Modification

It may be that initial establishment of child support through an administrative system poses more challenges than does modification of the support order. In most other jurisdictions, pending divorces continue to be dealt with through the courts and the corresponding support systems in place.[148] In other words, people seeking a divorce are often channelled through a different system, at least initially, than single parents seeking child support. Once the divorce is finalized, a divorced party can then choose to resort to the expedited process for any future modification of the existing child support order. Most jurisdictions, however, have implemented expedited processes to address both establishment and modification.

Mechanisms may already exist in the provinces that would provide for relatively straightforward modification processes. In British Columbia, for example, the Family Maintenance Enforcement Program (FMEP) may be able to administer or at least facilitate child support modifications in certain situations, if the modifications are triggered by the non-custodial parent's request.

Access

Access to child support services poses some challenges in a country like Canada where people are spread out geographically. Representatives of other jurisdictions did not identify access to services as a major problem, other than in regard to providing an effective response service both for parents' questions about paperwork they receive and for their more general requests for information. Some places have toll-free information phone lines in place where people can obtain some of the information they require.

In many jurisdictions where administrative schemes have been set up, the telephone is seen as an important tool. In many places, the hearings are conducted over the telephone with at least one of the parties. Again, advancing computer technology may provide similar possibilities in the not-so-distant future. A benefit of a less formal hearing as opposed to a court hearing is the potential ability to more easily diversify in this regard.

CONCLUSION

Time constraints have limited the scope of this report. It is hoped that the contents nevertheless have provided a useful overview of some of the existing mechanisms to determine child support amounts and facilitate the variation of existing orders that are operating in other jurisdictions. In addition, some of the related issues have been discussed and various available alternative approaches highlighted.

Although familiarity with other jurisdictions provides a useful starting point, the unique societal, political and legal standards operating within each Canadian province will ultimately determine which approach will be the most workable.

ACKNOWLEDGEMENTS

Acknowledgements are extended to the following people whose contributions have been very helpful.

In Addition

  • Joel Bankes: Director, United States National Child Support Enforcement Association (NCSEA).
  • Joan Kelly: Northern California Mediation Center.
  • Hugh McIsaac: Editor, Family and Conciliation Courts Review.
  • Jessica Pearson: Director, Center for Policy Studies, Denver, Colorado.
  • Dan Bloom: Manpower Demonstration Research Project, New York, New York.

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