Family Mediation Canada Consultation on Custody, Access and Child Support
Child Support Guidelines Issues
The Federal Child Support Guidelines recognize that judges may treat older children who are still dependent on their parents differently from minor children when it comes to determining child support amounts. Older children may have part-time jobs or be living away from home while going to school. Parents and other people have questioned whether it is best for the paying parent to continue to pay the child support for older children to the receiving parent (who provides a home for them) or to pay it directly to the children.
Respondents were asked their opinion on direct child support payments to children at the age of majority or older. No clear consensus emerged, with approximately equal numbers of respondents agreeing with the following statements: in all cases, one parent should be able to argue in front of a judge that child support be paid directly to children at the age of majority or older and the other parent should be able to present arguments opposing that position (22 percent); direct payment of child support to children at the age of majority or older should be permitted in every situation, provided that the receiving parent and the children agree (27 percent); direct payment to children at the age of majority or older should be allowed only when the children are living away from home for most of the year, provided that the receiving parent and the children agree to this (27 percent); and direct payment of child support to children at the age of majority or older should be allowed only when the children are living away from home for most of the year, provided the children agree, but regardless of whether the receiving parent agrees (17 percent). Only one respondent selected the alternative
"direct payment of child support to children at the age of majority or older should never be allowed" (1 percent).
Of the 10 other comments made by respondents, the most common was that each case should be assessed individually (see Appendix B, Table B-19). In commenting on this question, one respondent noted
"Children’s expenses don’t necessarily vanish because they are not in school."
The Federal Child Support Guidelines could be changed so that either the receiving parent or the children at the age of majority or older (whoever actually receives the child support payment) must provide the paying parent with information about the status of the children (for example, proof that they are still enrolled in post-secondary studies) and/or information about the children’s finances. This would apply in all cases when support is to be paid to children at the age of majority or older, not just in those that include special expenses.
Respondents were asked whether they agreed with these changes. The vast majority of respondents (92 percent) felt that information about the status of the children should be provided to the paying parent. As well, a substantial proportion of respondents (78 percent) said that disclosure of financial information should be required.
The Federal Child Support Guidelines currently state that when spouses stand in the place of children’s parents, judges may order a child support amount they consider appropriate, taking into account the amount set out in the child support tables in the Guidelines and the legal duty of any other parent to support the children.
When asked how the Guidelines should set out the procedure for calculating the amount of child support a step-parent pays, almost two thirds of respondents (61 percent) indicated that the step-parent should pay the child support table amount minus the amount any other paying parent pays. Considerably fewer respondents (16 percent) thought that each paying parent should pay the child support table amount. Of the 29 other suggestions received, the most common were that each case needs to be assessed individually, and that step-parents should not be responsible for paying child support (see Appendix B, Table B-20). One respondent commented,
"the recipient should have to satisfy the court that all reasonable efforts to obtain or enforce an order against the biological parent have been made prior to any order being made against the step-parent." A respondent who did not agree that the step-parent has a duty to pay child support said the following:
Without adoption, clearly a step-parent is not the parent. Otherwise why else have the concept of ‘adoption’—a formal procedure to become a parent—not an unintentional legal trap, i.e., marriage involves vows and legal document = spousal support potential. How can a person be expected to take on parental responsibility without express consent?
Currently, section 9 of the Federal Child Support Guidelines states that shared custody exists when a parent has custody of or exercises access to a child for not less than 40 percent of the time over the course of a year. Respondents were asked how they would prefer to define shared custody. Only eight percent of the respondents thought that the definition should be based only on the amount of time each parent spends with the children. In contrast, 86 percent thought that time should not be the only criterion, and that judges should also be allowed to consider other factors based on the level of parental responsibility. Ten other responses were received and are presented in Appendix B, Table B-21. As one respondent put it,
"Your department has failed to understand that custody relates to responsibilities, not time. This has caused endless confusion." Another respondent said definitions needed to be clarified.
"Is ‘quality of time’ equivalent to ‘quantity of time’ spent with either parent? Also, shared custody tends to be confused with primary residence."
Respondents were asked which factors should be included in a definition of shared custody. Respondents were very supportive of all the factors listed: the decision-making process (76 percent), the living accommodations for the children in each parent’s home (70 percent), the existence and content of a parenting plan (68 percent), how parents share the children’s expenses (65 percent), and the proximity of the parents’ residences and the feasibility of the arrangement (61 percent). Fourteen other comments were made by respondents (Appendix B, Table B-22). Respondents were also asked to rank the factors they selected. The top ranked factor was the decision-making process, followed by the existence and content of a parenting plan, and the living accommodations for the children in each parent’s home. One respondent added the following factors:
The stage of the child’s development; temperament; and level of adaptability to a shared parenting arrangement. Shared parenting should be something considered within these aspects as well as something that can occur at different times in a child’s developing life. It may not be appropriate for a two-year-old, but may work quite flawlessly with an older, adaptable child. Type of conflict and effect on child must be assessed before consideration can be given to a shared parenting regimen.
When respondents were asked for their opinion on how the time element of shared custody should be defined, two thirds (67 percent) indicated that the parents should share their children on a "substantially equal" basis, while only 14 percent indicated that each parent should have the children at least 40 percent of the time. Of the 32 other comments received, more than one half of the respondents said that time was not an important factor, and that the definition should be developed within each family situation (see Appendix, B, Table B-23). Comments from respondents echoed these opinions. One respondent said,
"Parents who agree to shared parenting don’t have to also share the time. Sometimes a parent can be very involved but does not have more than ‘regular’ access, i.e., every second weekend, etc. This should still be ‘shared’ parenting if both parents agree and participate in the child’s life." Another said,
"I believe making time the decisive factor is very hard on children and limits beneficial flexibility. It is most important to assess how the parents share responsibility for the work needed in caring for children, how they help each other out, and how they meet the children’s financial needs."
There was no clear consensus on what term should be used to capture the concept of shared custody in the Guidelines for the strict purposes of determining child support. Interestingly, 21 percent of respondents indicated that the current term "shared custody" should be kept. One fifth (20 percent) preferred the term "shared residency", while 14 percent preferred the term "dual residency". Equal proportions (13 percent) of respondents preferred the terms "shared residence" and "dual residence". Of the 32 other suggestions received, the preferred term mentioned by one third of the respondents was "shared parenting" (see Appendix B, Table B 24). It should be noted that several respondents were unclear on the distinction between the terms "residence" and "residency."
Respondents were asked how child support should be determined in shared custody arrangements. As indicated in Table 3.1, almost half of respondents (49 percent) thought that formulas should be used when determining child support in shared custody arrangements, although respondents differed in the amount of discretion they thought judges should have in deviating from formulas or tables.
When asked which formula they thought would be most appropriate, almost half of respondents who favoured formulas or tables indicated that separate child support tables should be created for shared custody arrangements. More than one third of respondents (34 percent) thought that the table amounts of both parents should be multiplied by 50 percent to recognize the increased costs of shared custody and then the amounts offset . Only 10 percent of respondents thought that the formula should simply offset the table amounts of both parents.
Table 3.1: Respondents’ Views on How Child Support Should be Determined in Shared Custody Arrangements
|The judge could use various formulas to help determine the child support amount.||30||23.1|
|The Guidelines should include a set formula or tables developed for the calculation of child support in all shared custody arrangements. However, the formula or tables should be provided only as guidance. The judge should still have some discretion to set the amount of child support.||24||18.5|
|Parents and the judge should rely on budgets the parents prepare to calculate child support in shared custody arrangements. The judge should still have discretion to set the amount of child support.||20||15.4|
|The standard of living in each parent's household should be wb-eqhtd. The judge should use a test, such as the Comparison of Household Standards of Living Test in Schedule II of the Guidelines, to determine the appropriate amount of child support. He or she should have little discretion to set the amount of child support.||20||15.4|
|The current shared custody section in the Guidelines should continue to apply. The judge should have a high level of discretion when setting the amount of child support.||13||10.0|
|The Guidelines should include a set formula or tables developed for the calculation of child support in all shared custody arrangements. The judge should have little discretion to set the amount of child support.||8||6.2|
|Neither parent should pay child support in shared custody arrangements.||4||3.1|
Respondents also had the opportunity to suggest other ways that child support should be determined in shared custody arrangements. These responses are presented in Appendix B, Table B-25).
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