CHILD SUPPORT PROCESSES
OPTIONS FOR CANADA
Some of the approaches taken in other jurisdictions have already been discussed briefly in the preceding section of the report. There are some programs worthy of more detailed examination because of some of their particular traits or because of how various parts of the system work together in a cohesive fashion. As will be emphasized, differing philosophies define the mandate of the various programs and the services they offer. This section of the report highlights some interesting programs which could potentially be modelled in a Canadian child support scheme.
In Florida, a mandatory mediation program is attached to the superior court. It has been established through statute in this state that people must always go through mediation for family matters involving children. The mediation process is triggered as soon as the parties file the court documents. There are certain categories of cases that are exempt from mandatory mediation. These categories are set out in statute and include such phenomena as evidence of abuse in the relationship. If at all possible, it is expected that court personnel will notice these factors before sending the cases out to mediation. It is also open for the parties themselves to object to the use of the mediation process due to the particular circumstances of a given case and in these cases, the party or parties would request a judicial hearing for a consideration of whether or not mediation would be appropriate. As a final safeguard, the mediator may note the inappropriateness of mediation for a given case and would then send the file back into the court stream right away.
The court assesses whether or not the parties can afford mediation and where it is determined that the parties can afford to hire a mediator, they are sent out to a hire a private mediator. People who are considered indigent or cannot otherwise afford the expense of a mediator are referred to the court-annexed mediation services. The mediators who work in this office are designated as court personnel. Unlike some other jurisdictions, this court-affiliated mediation service is available to the parties only upon the court's referral and not upon independent application of one or both of the parties. The basic process for referral from the court varies from one location to another. In some places, the court administrator refers the case right away, generally after a judge's paper review. In other regions, the referral is not so immediate. The parties always retain the right to file an objection to the referral. A basis for objecting would be evidence of an abusive relationship.
The mediators throughout the state deal with child support in the course of mediation. It is seen as an issue that is amenable to the mediation process and, further, as something that should not be separated out from the other family law issues. The child support formula in the state is an income shares model whereby the income of both legal parents is factored. The categories of recognized income are: any form of payment including wages, salary, commissions and bonuses, compensation benefits, disability benefits, annuity and retirement benefits, interest income, pensions, dividends, royalties and trust income. A judge is entitled to deviate by 5 percent from the guideline amount without stating a reason.
When the alternative dispute resolution processes were first set up in Florida several years ago, the initial approach was to refer child support and issues requiring financial calculations to chartered accountants or attorneys whereas the mediators would deal with the other issues. However, this approach was found to be unmanageable due mainly to the fact that people were required to go to two separate offices to deal with various aspects of the family case. The current approach is that all issues are dealt with by a single mediator.
In regard to the issue of child support, the mediator goes through the calculations with the parents together. The financial information will have already been provided to the court when the documents were filed. The mediation then takes place on that basis. The child support formula in the state provides that in some circumstances, there could be up to 10 percent variation from the guideline amounts of child support.
The mediation session is confidential and the contents of the discussion cannot then be used in a subsequent court proceeding. It is felt that to have the mediator involved in the process beyond the mediation session would have the effect of jeopardizing the neutral role of the mediator. Further, there is no cost attached to pursuing the case beyond the mediation stage; the philosophy behind the mediation model is that it is not to be forced onto the parties. If one of the parties feels that he or she is being forced to settle the issues, it is felt that the objective of the mediation would be lost.
Clackamus County is the only district in Oregon where child support may be dealt with through the mediation process. The reason for the inclusion of this issue was based on the individuals employed in the office who felt that a comprehensive approach to family cases is the most appropriate means of effectively resolving outstanding family disputes.
The Clackamus County program is a voluntary program that is accessible either through the individual parent's own application or upon referral by a judge at any stage of the court process. It is also very common practice that one of the parties' attorneys refers the case to the mediation office. The philosophy of the program supports this voluntary approach.
Recently, the Oregon Task Force on Family Law has recommended mandatory parent education programs be connected to the family court. Some counties, including Clackamus County, have initiated these parent education programs, which are also administered by Family Court Services; however, the focus of the education program is on emotional issues surrounding family break up as opposed to providing information about the child support guidelines and calculation process.
At the outset of the process, the mediator conducts an initial interview with the parties separately aimed at determining whether or not the case is appropriate for mediation. The appropriateness of mediation will hinge on whether or not there is evidence of abuse within the relationship or other dynamics of a potential power imbalance which would detract from the effectiveness of subsequent mediation. During this initial meeting, both parents are asked to provide the financial information required to do the income shares child support calculations.
With the aid of computer software, which assists with the calculation of basic child support, the mediator does the calculations for the parties. This computed child support amount provides the basis for discussion around child support during the course of subsequent mediation sessions.
Each case requires between three and six one and a half hour-long mediation sessions. The first of these sessions is aimed at educating the parents about the role of mediation. The mediation sessions are strictly confidential and the mediator cannot subsequently be subpoenaed to testify at court. However, if the parties arrive at an agreement signed by both of them, this agreement may be produced at court.
The range of cases dealt with through the Clackamus County mediation program is vast, including custody, visitation, support, property division and modification of previous arrangements. In addition, the parties to the mediation need not be in the process of seeking a divorce. The program is available to any couple with family issues to resolve.
The office is staffed by a director, an administrative assistant, three part-time secretaries, six part-time mediators and three interns. Only the mediators are involved with addressing the issue of child support. It is felt that the mediators themselves should perform the child support calculations in order to more effectively deal with the issue during the course of mediation, instead of having to revisit calculations done by another person not involved in the mediation process.
The staff of the Family Court Services does not perform custody evaluations as occur in various other comparable offices across the United States. It is felt that with the limited resources available, the philosophy of the program is more appropriately met through focusing on programs that are completely separate from the formal court process. Custody evaluations would be used within a subsequent court proceeding.
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