Child Support Initiative:
Section 28 of the consolidated Divorce Act requires the Department of Justice Canada to prepare a report to Parliament on the substantive and functional aspects of the annexed Federal Child Support Guidelines by May 1, 2002:
The Minister of Justice shall undertake a comprehensive review of the provisions and operation of the Federal Child Support Guidelines and the determination of child support under this Act and shall cause a report on the review to be laid before each House of Parliament within five years after the coming into force of this section.
An important component of the report to Parliament will be an assessment of the extent to which the formally stated Guideline objectives have been met. Section 1 of the Guidelines states the following.
The objectives of the Guidelines are:
- to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;
- to reduce conflict and tension between spouses by making the calculation of child support orders more objective;
- to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and
- to ensure consistent treatment of spouses and children who are in similar circumstances.
For each formally stated Guideline objective, we present the major research issues that have been identified so far, potential sources of qualitative and quantitative data, and the status of projects that are underway or planned.
2.1.1 Establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation
For many families living in or close to poverty, the loss of economies of scale upon family breakdown results in a dramatic fall in the standard of living for both custodial and non-custodial households. Early in the development of the Federal Child Support Guidelines, it was recognized that a child support formula on its own could not eliminate child poverty (Finnie et. al., 1995a: 2). Therefore, the first stated objective of the Guidelines emphasizes that children should continue to benefit from the financial means of both parents.
Since the determination of child support amounts is based on the parents' ability to contribute, the issue of fairness will be examined in relation to the parents' financial means.
- Are actual award amounts lower than, equal to, or higher than the table amounts indicated by the Guidelines? Are the table amounts being used as a base or "floor" amount for the awards, as intended? Are there discernible regional or other patterns in child support order amounts? Do award amounts vary significantly according to the gender of the payer and by income level?
- Are consent orders lower than, equal to or higher than the table amounts indicated by the Guidelines? Are there discernible regional or other patterns in amounts arrived at through consent agreements?
- How frequently are children at or above the age of majority included in support orders? How frequently are special expenses for post-secondary education awarded? How are award amounts usually determined in these cases?
- Taking into consideration changes in the tax treatment of child support awards, are awards made under the Guidelines higher or lower than those made before their introduction?
- How frequently are the special or extraordinary expenses allowed by the Guidelines claimed and included in child support orders? How do parents share the expenses? How do special or extraordinary expenses affect the overall award amount?
- In what proportion of cases do payers and recipients make undue hardship claims? Do the courts record the reasons for their decisions regarding these claims? To what extent do undue hardship claims increase or decrease award amounts?
- How is the concept of household standard of living used in undue hardship claims? Do judges, professionals, payers and recipients think that the undue hardship test set out in Schedule II of the Guidelines is easy to understand and to use?
- What are the frequencies and patterns of sole, shared and split custody arrangements? Is there any relationship between level of income of one or both parents and type of custodial arrangement? Is there any change over time in the proportion of shared and split custody cases (i.e., since the implementation of the Guidelines when the new definitions came into effect)? How are support amounts determined in cases of shared custody?
- How frequently do child support orders include provisions for spousal support? Has there been a change over time in the proportion of cases with both spousal and child support orders?
- Do payers, recipients or professionals view the table amounts and the overall award amounts as being equitable for paying and recipient parents? Do perceptions of fairness vary by income level of the payers and recipients?
- Among parents with child support orders issued before May 1997, how many elected to change the tax treatment of these awards? What are the socio-economic and other demographic characteristics of parents who requested a change in tax treatment?
- What are the trends in and patterns of variation orders? Can we determine the reasons for requesting variations to pre-implementation orders? What proportion of variations increases award amounts, and what proportion decreases amounts? Are payers or recipients more likely to request variation orders?
- How frequently are support orders varied? What are the considerations that support or hinder either payers or recipients from filing an application to vary (e.g., lack of information, inability to retain legal counsel, unwillingness of parents to re-open the issue, family violence)?
- In what proportion of cases is an application to vary child support accompanied by, or countered with, an application to vary custody arrangements?
- How are the courts determining award amounts when incomes are greater than $150,000?
- What are the short- and long-term economic consequences of family breakdown for lower-income parents? Have there been any measurable changes in these consequences since the adoption of the Guidelines? (See also section 6.4 of this paper.)
2.1.2 Reduce conflict and tension between spouses by making the calculation of child support orders more objective
- Has there been a change in the proportion of contested child support cases since the Guidelines came into force? Has this changed from year to year? Are there differences by income level, by age of children or by other social characteristics?
- Do payers or recipients believe that the Guidelines have helped or hindered them in negotiating an agreement or a variation? What are the other considerations that enhance or minimize tension levels when parties are negotiating child support agreements?
- What do payers and recipients perceive to be the most common sources of difficulty in arriving at an agreement on child support amounts? What do lawyers, mediators and other professionals perceive to be the most common sources of difficulty in arriving at an agreement on child support amounts?
- Do professionals (e.g., lawyers, accountants, mediators, court administrators) perceive a change in the way they themselves or others approach child support issues with separating parents?
- To what extent have interventions such as mediation and parenting courses affected the level of conflict and tension between spouses?
- How has the obligation to disclose financial information between parties worked in practice (as reported by key informants)?
- Are there any discernible changes in the level of custody litigation or incidents of access denial as a result of the introduction of the Guidelines (as reported by key informants)?
2.1.3 Improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement
- Do judges and professionals (e.g., lawyers, accountants, mediators, court administrators) feel that the various provisions of the Guidelines are easy to understand and to use? What considerations have supported or hindered their use (e.g., training, software applications for calculating award amounts, availability of specialized court personnel or child support clerks and so on)?
- Do payers and recipients feel that the various provisions of the Guidelines are easy to understand and to use? What considerations have supported or hindered their use (e.g., law information, free assistance, software applications for calculating award amounts, availability of specialized court personnel or child support clerks and so on)?
- Are there any changes from year to year in the proportion of payers or recipients who are represented by legal counsel when negotiating child support awards?
- Have the Guidelines affected the amount of time devoted to each stage of the legal process (e.g., lawyers' preparation time, court time)? (This issue should be addressed only after an initial period of transition.)
- Do professionals think that the proportion of contested cases has increased or decreased since the Guidelines came into effect? What do professionals identify as the major factors that assist or hinder the parties in arriving at an agreement regarding child support?
2.1.4 Ensure consistent treatment of spouses and children who are in similar circumstances
- Controlling for income of the parents, number of children and type of custodial arrangement, how comparable are the post-implementation award amounts? Has the discrepancy in award amounts increased or decreased over the duration of the Initiative? Are there regional or other differences in the use of special expenses or in the acceptance of undue hardship claims?
- Controlling for income of the parents, gender of paying parents, number of children and type of custodial arrangement, are consent awards lower than, equal to or greater than awards determined by applying the Guidelines?
- How do award amounts based on the Federal Child Support Guidelines compare with awards made under other guidelines (e.g., Quebec guidelines)?
Most of the research strategies identified in this section of the framework will address more than one of the issues noted under sections 2.1 to 2.4.
2.2.1 Collection of Pre-implementation Data
- A summary of existing baseline statistics on Canadian families and family law has been prepared and will be available as a Child Support Team research report by the summer of 1998. This report will be updated annually.
- No national, standardized data are available on pre-implementation award amounts. We will attempt to create a limited base of information on pre-implementation award levels by analyzing 1993, 1994 and 1995 income tax data for support payers who claimed tax deductions for support payments and for support recipients who were required to declare child support as part of their personal income. However, following changes to the tax treatment of child support as of May 1, 1997, data will only be available on unrevised orders made before that date.
2.2.2 Collection of Post-implementation Data on Child Support Awards
The first project underway is the Survey of Child Support Awards under the Divorce Act. During the summer and autumn of 1997, the Child Support Team Research Unit worked in close collaboration with the members of the FPT Research Subcommittee to launch the pilot phase of this project. The general purposes of the pilot survey are:
- to provide early feedback on the extent to which the Guidelines are being used in determining the table amounts, the patterns of inclusion of special or extraordinary expenses, the patterns of use of the undue hardship provisions, whether child support amounts vary significantly according to the gender of the paying parent, whether the concept of "household standard of living" is being used appropriately in undue hardship claims and so on; and
- to determine the most effective way to continue monitoring child support amount information over the duration of the Child Support Initiative.
Monitoring of the implementation and impact of the Guidelines is heavily dependent upon the collection of standardized information from award agreements and orders under the Divorce Act. The data collection form for the court-based survey of awards relies upon the mandatory information itemized in section 13 of the Divorce Act (see Annex A for a full listing), as well as other information included in court files. Data items collected for the survey of awards include the following:
- the year of birth of each child to whom the order relates and his or her place of residence;
- the type of custody arrangement (i.e., sole, split or shared);
- the gender of the payer and the recipient;
- the income of any spouse whose income is used to determine the amount of the child support order;
- the particulars of any special expense, the child to whom that expense relates, the amount of the expense or the proportion to be paid in relation to the expense;
- the amount of the child support agreement, order or variation order; and
- the particulars of undue hardship claims.
Some additional file information is also being collected, such as whether the parties were represented by legal counsel, the reason for a variation order (if available or applicable), the amount of the previous order and so on.
Data collection for the pilot phase of the survey began in the autumn of 1997 and was completed in September 1998. All jurisdictions except Quebec, participated in this phase of the survey, providing data from at least one court. A report on the preliminary findings should be available in early 1999.
Based on the experience of the pilot phase, some minor methodological adjustments were made to the survey. The revised survey of awards was put in place on October 1, 1998, and will continue until the end of the Initiative in April 2001. It is anticipated that all jurisdictions will participate in this phase of the survey.
2.2.3 Case Law Reviews
There will be ongoing reviews of the case law, which may help us define research issues and provide examples of how the courts are interpreting the Guidelines. In addition, we will monitor commercial services that provide information on reported cases, and publications that feature family law and child support issues, to find relevant information.
2.2.4 Survey of Professionals' Experiences with, and Perceptions of, the Functioning of the Guidelines
Professionals such as family law practitioners, mediators, and court and maintenance enforcement program administrators will be surveyed at various times over the life of the Child Support Initiative to gather information on their experience regarding the determination and enforcement of child support awards. This information will help further define issues and assess the overall functioning of the Guidelines.
2.2.5 Surveys of Persons with Support Orders (Payers and Recipients)
Payers and recipients will be surveyed at various times over the life of the Child Support Initiative to help us define issues and assess the overall functioning of the Guidelines.
2.2.6 Monitoring of the Table Amounts
The Child Support Team will monitor changes in federal or provincial tax regimes to assess their impact (if any) on the calculation of the table amounts and their effect on tax deductible shared section 7 expenses.
2.2.7 Monitoring of the Impact of the Guidelines on Custody and Parenting Arrangements
Baseline data on custody arrangements will be developed using the Statistics Canada National Longitudinal Survey of Children and Youth (NLSCY) and the "Family and Friends" component of the General Social Survey (GSS) for the 1990 and 1995 cycles. (See section 6.0 of this paper for additional information about the surveys.)
Future work will also include analyses of data on custodial arrangements obtained from the Survey of Child Support Awards under the Divorce Act. More in-depth information will be gathered though special studies on families with shared custody arrangements and on issues surrounding special expenses for adult children.
We will also consider the possibility of conducting focus groups with parents to understand how better to support them during the divorce transition and assist them in resolving custody and access issues.
Finally, we will monitor possible unintended consequences of the Guidelines on custody and parenting issues, such as a possible change in the rate of parental abductions and the level of custody litigation. The CCJS Uniform Crime Reporting (UCR) statistics now provide relationship data on such cases from 40 percent of the jurisdictions. We will monitor the number of reported cases and of actual offences, charges and dispositions.
2.2.8 Preparation of the Report to Parliament on the Functioning of the Guidelines
By May 1, 2002, the Department of Justice Canada will prepare a final report synthesizing the results of this program of research on the Guidelines.
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