[1] Federal-Provincial-Territorial Family Law Committee, Child Support: Public Discussion Paper, Ottawa: Department of Justice Canada, June 1991; and, Federal-Provincial-Territorial Family Law Committee, The Financial Implications of Child Support Guidelines, Ottawa: Department of Justice Canada, May 1992.
[2] Federal-Provincial-Territorial Family Law Committee, Report and Recommendations on Child Support, Ottawa: Department of Justice Canada, January 1995.
[3] An internal Department of Justice Canada evaluation that looked at the success of the Initiative focussing on its programming elements, rather than on the impact of the legislative changes, has taken place.
[4] To support the implementation of the Initiative, a wide variety of public education and communications activities were undertaken to help parents, family law professionals and Canadians generally. These included a toll-free information line, direct-mail campaigns, publications and an advertising drive. For detailed information please consult Volume 2.
[5] Between 1991 and 1994, the Department of Justice Canada did extensive research on behalf of the F-P-T Family Law Committee to develop the formula that generates the amounts in the child support tables. This involved balancing the interests of all the parties involved and searching for a solution that was not only fair and equitable, but that also worked well in practice. Following a thorough evaluation of various methods of sharing child costs between parents, a process that involved statistical evidence on expenditures on children, data from court orders and extensive consultations, the committee opted for a method known as the Revised Fixed Percentage Formula. See: Finnie, Ross, et al., Highlights - An Overview of the Research Program to Develop a Canadian Child Support Formula, Ottawa: Department of Justice Canada, Communications and Consultation Branch,
1995; Finnie, Ross, et al., An Overview of the Research Program to Develop a Canadian Child Support Formula, Ottawa: Department of Justice Canada, Communications and Consultation Branch, 1995; Child Support Team, Formula for the Table of Amounts Contained in the Federal Child Support Guidelines: A Technical Report, Ottawa: Department of Justice Canada, (CSR-1997-1E/1F), 1997.
[6] Additional information on the tax issue can be found in Appendix 2 attached at the end of this document.
[7] See Appendix 3 for a description of the Survey of Child Support Awards.
[8] The 2,260 cases categorized as being "silent on child support/previous order dealt with support" were excluded from this analysis. Survey of Child Support Awards, February, 2001.
[9] The section-by-section review of the Guidelines suggests that the objectives are working well for these purposes, see Volume 2.
[10] For complete information on the research program, see: Child Support Team, Child Support Initiative: Research Framework, Ottawa: Department of Justice Canada, (CSR-1999-1B), 1999.
[11] In British Columbia, Family Maintenance Enforcement Program services are available at no cost to parties who choose to file their orders with the program. For most recipients, it operates as an opt-in system. The exception to this is recipients who are receiving income assistance. For this group, enrolment may not be voluntary. See Canadian Facts, Child Support Guidelines Evaluation Highlights Summary, (unpublished report), Burnaby, B.C., Family Maintenance Enforcement Program, British Columbia Ministry of the Attorney General, 1998.
[12] Canadian Facts, 1998 (footnote 11) at pp. 7-8.
[14] Sieppert, J., et al., An Evaluation of Alberta's Parenting After Separation Seminars (unpublished paper submitted to Alberta Childrens' Services), Calgary: Canadian Research Institute for Law and the Family, 1999, Appendix E, and secondary analysis of these data by Lorne Bertrand, 2001.
[15] Canadian Facts, Survey of Parents' Views of the Federal Child Support Guidelines (unpublished background research), Ottawa: Department of Justice, 2000.
[16] Some respondents commented that the Guidelines were fair in simple cases, but not so fair when discretionary matters were involved, see: Paetsch, J., et al., Consultation on Experiences and Issues Related to the Implementation of the Child Support Guidelines (unpublished paper), Calgary: Canadian Research Institute for Law and the Family, September 1998.
[17] Child Support Team, The Child Support Guidelines Through the Eyes of Mediators and Lawyers, Ottawa: Department of Justice, (BP23E), 2000, at p. 7.
[18] See sections 15.1(5), 15.1(7), 17(6.4) and 17(6.5) of the Divorce Act.
[19] Because the distinction between "consent" and "uncontested" cases varied in the courts that were included in the study, it was necessary to combine these two categories when analyzing the data from the Survey of Child Support Awards. When this was done the vast majority of cases (88 percent) fell into the "uncontested/consent" category, and 11 percent were contested (Survey of Child Support Awards database, February 2001).For the purposes of the Survey of Awards, consenting cases included those in which it was clear that both parties consented to the order. Uncontested cases included cases for which it was clear that a judge had to make the finding in the absence of the respondent or the preamble stated that the finding was made by default. Variations were significantly more frequently contested (29.8 percent) than were original divorce orders or
judgments (6.8 percent).
[20] To allow for minor variations from the table amounts as coded on the Survey of Awards data collection instrument, the child support award amount was considered to be equal to the table amount if it was within five percent (either higher or lower) of the table amount.
[21] The Divorce Act ss. 15.3(1) stipulates that spousal awards are to be considered after child support has been determined. Similarly, although spousal support continues to be tax deductible for the payor, and to be taxable income in the hands of the recipient, tax deductions for spousal support are only allowable when evidence has been presented that the child support amount has been paid in full.
[22] Although the number of cases with child support amounts falling below the table amounts is very small (661 cases out of 12,293), a detailed analysis of these cases show some interesting differences between the cases with and without spousal support. The median income for the paying parents in cases with spousal support is relatively high ($74,227) compared to only $36,976 for those who are not paying spousal support. Survey of Child Support Awards database, February, 2001.
[23] After controlling for tax treatment, inflation, payor income and number of children.
[24] The small number of cases made it impossible to perform the tests on larger sized families.
[25] The median amount is the one above and below which 50 percent of the amounts fall. The mean amount is the average of all the amounts.
[26] Canadian Facts, 1998 (footnote 11) at pp. 10-11.
[27] See: Seippert et al., 1999 (footnote 14) Appendix D.
[28] Paetsch Joanne J. et al., Federation of Law Societies of Canada Consultation on Child Support Guidelines and Custody and Access (Ottawa: Department of Justice, Family, Children and Youth Section [2001-FCY-10E], 2001b)., at p. 6.
[29] Child Support Team, 2000 (footnote 17) at p. 7.
[30] See Child Support Team, 2000 (footnote 17) at pp. 11 and 15.
[31] See Volume 2 for a description of the Guidelines Implementation Program.
[32] See Child Support Team, 2000 (footnote 17) at pp. 6-7.
[33] For this analysis, data from the Pilot phase of the Survey and from Phase 2 were combined to provide a 1997-98 average. The Pilot survey data were collected between December 1997 and October 1998. Data collection for the Survey of Awards (Phase 2) started in November, 1998. See Appendix 3.
[34] Tables B and C in Appendix 4 provide frequency distributions of the "issues dealt with" in the Survey of Awards cases as a whole, and by whether the case was a divorce order, or a variation. In most cases, more than one issue is dealt with, the most common combination being "child support, custody and access," which occurs in about 30 percent of all cases. In 18 percent of the cases the combined issues were child support, custody, access and spousal support. In 13 percent of cases the only issue was child support. Variation orders accounted for nearly two-thirds of the cases in which child support was the only issue. A very high proportion (63 percent) of the divorce cases where child support was the only issue were interim orders for child support. Survey of Child Support Awards database, February 2001.
[35] We are not able to identify the specific issues that were contested in the more complex cases.
[36] In this chart the 1998 data are for November and December only. See Appendix 3.
[37] See Child Support Team, 2000 (footnote 17) at p. 14.
[38] The review of section 9 of the Guidelines in Volume 2 outlines the various approaches that have been taken in the courts with regard to the determination of the two issues of time thresholds and determination of the amount of support.
[39] See Appendix 4 - "Supplementary Tables," Table D.
[40] McLeod, Jay, This Week in Family Law (Newsletter), June 26, 2001. McLeod's Newsletter is posted for subscribers on the Carswell website.
[41] It must be noted that the Survey of Child Support Awards cannot provide information on the number of cases in which there may have been a failed application for sole, shared or split custody.
[42] A split custody arrangement exists when each parent has custody of one or more children of the marriage. In these cases the amount of the child support order is the difference between the amount that each spouse would otherwise pay if a child support order were brought against each of the spouses. See Federal Child Support Guidelines, s. 8.
[43] See the review of sections 8 and 9 of the Federal Child Support Guidelines in Volume 2, for more information on shared and split custody.
[44] See, e.g.: Department of Justice, Federal Child Support Guidelines: A Workbook for Parents, Ottawa: Department of Justice Canada, 1997.
[45] See: Institute for Human Resource Development, Final Evaluation Report - Support Application Worker Program Newfoundland and Labrador, (unpublished paper), Ottawa: Department of Justice, Child Support Team(BP18E), 2000; McKenzie, Brad, Evaluation of Comprehensive Co-Mediation and Mediation Internship Pilot Project, unpublished Interim Report, 2000; McKenzie, B., and I. Guberman, Evaluation of For the Sake of the Children: A Parent Education Program for Separating and Divorcing Parents (Phase 2 Final Report), Winnipeg: University of Manitoba, Faculty of Social Work, Child and Family Services Research Group, 2000; Richardson, C. James, Evaluation of the Nova Scotia Child Support GuidelinesIntake Assistant Program,(unpublished paper),Ottawa: Department of Justice, Child Support Team (BP22E), 2000;
Roberts, Tim, An Evaluation of Child Support Clerk Functions, Final Report, Victoria, B.C.: Ministry of AttorneyGeneral, Management Information and Evaluation Division, 2000; and,Sieppert, J., et al.,1999 (footnote 14).
[46] On the other hand, a case could be made that the codification of the calculations found in the Guidelines, and the subsequent availability of computer software to assist in making or verifying calculations done by parents or legal counsel was a pre-requisite for the development of these specialized child support services.
[48] See: Paetsch et al., 2001a (footnote 28) and, Child Support Team, 2000 (footnote 17).
[49] See: Paetsch et al., 2001a (footnote 28) and, Child Support Team, 2000 (footnote 17).
[50] Bertrand, Lorne D., et al., The Survey of Child Support Awards: Interim Analysis of Phase 2 Data (October 1998 - March 2000), Ottawa: Department of Justice, Family, Children and Youth Section (CSR 2001-2E/2F), 2001 at p. 54; and, see Figures 2 and 3 above.
[51] See: Sieppert, 1999 (footnote 14) at p. 7; and, Child Support Team, 2000 (footnote 17) at p. 7.
[52] One third (32.3 percent) of the cases in the Survey of Child Support Awards database involved special expenses. Although the reasons for the special expenses varied widely, child care expenses were the most frequently cited (12.4 percent), followed by medical and dental insurance premiums (10.8 percent), and extracurricular activities expenses (10.5 percent). In 867 cases, the only reported child was over the age of majority. Special expenses were awarded in 29 percent of these cases. The type of expense was reported in 387 of these cases. Post-secondary expenses accounted for the greatest proportion (42.2 percent) of these expenses, followed by health-related expenses (20.4 percent), medical-dental expenses (18.6 percent) and extracurricular expenses (10.3 percent). Survey of Child Support Awards database, February, 2001
[53] See: Child Support Team, 2000 (footnote 17) at p. 7; and, Child Support Team, Federal Child Support Guidelines - A Review of Technical Issues and Proposed Solutions - Consultation Paper and Feedback Booklet. Ottawa: Department of Justice, 1999.
[54] See Bertrand et al., 2001 Interim Analysis (footnote 50). In addition, the amount of special expenses ordered increased as paying parents' incomes increased.
[55] Thirty-eight percent of all cases in the database (n= 6,684) met the criteria for this analysis (i.e. income of the payor was known, and was $150,000 or less, and special expenses were included in the order). Survey of Child Support Awards database, February 2001.
[56] See also the review of the Child Support Guidelines, Section 7 "Special or Extraordinary Expenses" in Volume 2.
[57] See also the review of the Child Support Guidelines, Section 10 "Undue Hardship" in Volume 2.
[58] See: Child Support Team, 2000 (footnote 17) at p. 12.
[59] Factors are listed in paragraphs (a) to (c) in Section 9-Shared Custody, Federal Child Support Guidelines:
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared custody arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
[60] Sometimes referred to as the "set-off formula." This formula subtracts the child support amount (for all children, using that parent's income) from the other parent's child support amount, the resulting difference thus is the amount paid from the parent to the other.
[61] Standing Senate Committee on Social Affairs, Science and Technology, The Federal Child Support Guidelines - Interim Report of the Standing Senate Committee on Social Affairs, Science and Technology, Ottawa: The Senate (Canada) 1998 at p. 12.
[62] See Justice David R. Aston, "An Update of Case-Law Under the Child Support Guidelines" (1998), 16 C.F.L.Q. 261. "The Guidelines do provide a useful checklist and have provided specific reference in the past for adjustments such as adding back into income items such as capital cost allowance (in the absence of evidence that the asset is really depreciating in value), wages paid to a second spouse, investment and rental property losses, car allowances and the value of personal use of a vehicle expensed for business purposes, and other personal expenses paid by a corporation, such as travel, meals and the like.
Determination of the real income of self-employed persons is not a new problem since the introduction of the Guidelines, but the Guidelines necessitate some actual finding of income (section 13) which may necessitate a closer analysis and actual reasons than in the past, and even for interim orders."
[63] Federal Child Support Guidelines Subsection 2(3) states: "Where, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used."
[64] Disclosure is required when one of the parties is seeking special expenses or is claiming undue hardship, split custody, or shared custody. It is also required when the income of the support payor is greater than $150,000.
[65] In writing about the Guidelines rule that, with exceptions, only the payor's income is relevant to the calculation of the basic table amount, the Senate Committee stated the following:
"We have already noted that controversy over the original decision has abated considerably, and it may be that time will prove the choice to have been a wise one, particularly in straightforward cases where having to assess only one income doubtless simplifies the calculation considerably." ( Standing Senate Committee on Social Affairs, Science and Technology, June 1998, (footnote 61) at p.16.)
[67] The Canadian Centre for Justice Statistics of Statistics Canada is currently implementing an on-going survey with the provincial and territorial Maintenance Enforcement Programs (MEP) that will provide standardized definitions for compliance and non-compliance with support obligations.
[68] A "new hires" program matches employer data or recently new or re-hired employees with debtor data to find a place of employment for immediate garnishment purposes.
[69] In fact, the expected flood of variations did not occur, but data obtained during the pilot phase of the Survey of Child Support Awards (December 1997 to October 1998) show that the most common reason given for variation applications during this period was the implementation of the Guidelines. Thirty-five percent of variation cases collected during the pilot phase of the Survey gave "implementation of the guidelines" as the reason for the application (Hornick, Joseph P., Lorne D. Bertrand, & Nicholas M.C. Bala, The Survey of Child Support Awards: Final Analysis of Pilot Data and Recommendations for Continued Data Collection. Enquête sur les pensions alimentaires pour enfants: analyse finale des données de l'enquête pilote et recommendations concernant la collection de
données, Ottawa: Department of Justice Canada, Child Support Team, 1999 (CSR-1999-2E/2F)). It should be noted that the coming into force of the Guidelines is a circumstance that allows parents or the court to change the child support amount. No other reason is necessary.
[70] As Quebec's system of determining child support awards is different from the Federal Child Support Guidelines, a separate study was designed to collect and analyze data in Quebec. See: Madame Linda Goupil Rapport du Comité de suivi du modèle québécois de fixation des pensions alimentaires pour enfants, Québec: Ministre de la Justice, procurement générale, ministre responsable de la Condition feminine et de l'application des lois professionnelles, Mars 2000. (See English translation at: Department of Justice, Report of the Follow-up Committee on the Quebec Model for the Determination of Child Support Payments, Ottawa: Department of Justice Canada, Family, Children and Youth Section, 2002 (BP33E).
[71] At some court sites data from cases proceeding under provincial legislation has also been collected. These cases have been eliminated from the analyses for this report.
[72] Data from the pilot phase in November and December 1997 were combined with 1998 phase II data.
