Children Come First: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines - Volume 2

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1. FEDERAL-PROVINCIAL-TERRITORIAL COMMITTEES

FEDERAL-PROVINCIAL-TERRITORIAL FAMILY LAW COMMITTEE

The Federal-Provincial-Territorial Family Law Committee (Family Law Committee) was instrumental in developing the Federal Child Support Guidelines. Established as a standing committee reporting to the deputy ministers of justice in 1981, the Committee comprises the director of family law policy in each of the jurisdictions. To ensure that the Guidelines were successfully implemented across the nation, the Family Law Committee gave this responsibility to the newly created Federal-Provincial-Territorial Task Force on the Implementation of Child Support Reforms.

FEDERAL-PROVINCIAL-TERRITORIAL TASK FORCE ON THE IMPLEMENTATION OF CHILD SUPPORT REFORMS

The federal, provincial, and territorial deputy ministers created the Federal-Provincial-Territorial Task Force on the Implementation of Child Support Reforms (FPT Task Force) in 1996 to coordinate the introduction of the C-41 reforms and the review of the Federal Child Support Guidelines. The Family Law Committee remained responsible for inter-governmental collaboration on substantive child support policy issues. The interdisciplinary FPT Task Force comprised representatives from the provinces and territories and the federal Department of Justice. Valuable help came from standing subcommittees and ad hoc working groups including those working on enforcement, research, reciprocal maintenance and support orders, and computer technology.

FEDERAL-PROVINCIAL-TERRITORIAL MAINTENANCE ENFORCEMENT PROGRAM DIRECTORS

Senior managers from different governments who run enforcement programs meet to discuss how their programs are run and to share and solve problems.

SUBCOMMITTEE ON ENFORCEMENT

This subcommittee comprises regional members who get input from the enforcement programs in their regions on all the work the subcommittee does. Established in 1996, its role is to identify, recommend, develop and implement support enforcement initiatives.

RECIPROCAL ENFORCEMENT OF SUPPORT ORDERS (REMO-RESO) WORKING GROUP

This working group came together in 1998. Members include officials from each province and territory and the Government of Canada, all of whom are responsible for or familiar with reciprocal support legislation, policy, procedures, reciprocity negotiation, and analysis within Canada and abroad. The working group discusses ways to more efficiently establish, vary, and recognize inter-jurisdictional support orders.

RESEARCH SUBCOMMITTEE

The Research Subcommittee includes at least one representative from each province and territory, a representative from Statistics Canada's Canadian Centre for Justice Statistics, and a representative from Treasury Board of Canada, Secretariat. The Subcommittee establishes short- and long-term research requirements and promotes cooperation and collaboration on research activities of mutual interest.

COMMUNICATIONS SUBCOMMITTEE

The Communications Subcommittee promotes cooperation and collaboration on communications activities of common interest. Members discuss and advise on federal, provincial, and territorial child support communications activities and products.

RULES AND FORMS SUBCOMMITTEE

The Rules and Forms Subcommittee was formed in 1997 and met once in 1998. Although the Subcommittee has been largely dormant, it made it easier to share information about rules and forms between the jurisdictions and to distribute them to all members of the Subcommittee. The FPT Task Force continues to share this information.

COMPUTER TECHNOLOGY SUBCOMMITTEE

In September 1998 the FPT Task Force established the Computer Technology Subcommittee. This group comprises representatives from jurisdictions that are using commercial software in the courts or that plan to do so. Members discuss developments in the use of software and identify enhancements needed to address particular aspects of the Guidelines.

REPORTING FRAMEWORK SUBCOMMITTEE

The Reporting Framework Subcommittee met for the first time in November 1998 "to develop a reporting framework for funded projects, which will meet the needs of both the FPT Task Force and federal government, and to recommend to the Task Force a standardized reporting framework." This subcommittee was set up to respond to two issues. The first issue was provincial perceptions of onerous and unclear requirements for funding under the Child Support Implementation and Enforcement Fund. The second issue was a federal initiative to encourage funding recipients to use performance measures in order to move to results-based reporting.

The Integrated Services Dispute Resolution Models Working Group (formerly known as the Section 25.1 Subcommittee) was established in 1999 to promote information sharing and to develop models for faster and cheaper methods for resolving family law issues outside court, including methods for determining child support as envisioned by section 25.1 of the Divorce Act.[1] By November 2000, the Working Group had achieved many of its objectives. The FPT Task Force was able to take over the ongoing work of the Working Group and the latter was suspended.

CO-CHAIRS COMMITTEE

The co-chairs of the FPT Task Force, the Family Law Committee and the Maintenance Enforcement Program Directors are jointly responsible to the governments' deputy ministers for coordinating the activities of the groups. They ensure that the three committees share information broadly.

ADVISORY COMMITTEE FOR IMPLEMENTATION OF CHILD SUPPORT GUIDELINES

In 1997, to benefit from the experience and perspectives of groups independent of governments, the federal Deputy Minister of Justice established the Advisory Committee for Implementation of Child Support Guidelines. The Committee comprised judges, law professors, family law practitioners, accountants and representatives of the Canadian Bar Association, family service organizations, and legal aid personnel appointed to this committee by the Deputy Minister. The Committee advised on ways to monitor the implementation of the Divorce Act amendments and the Guidelines. It also recommended changes to make the Divorce Act work more efficiently.

2. Changing Canadian Families

Canadian families have changed dramatically over a relatively short period of time, and the pace of change continues to increase.

CHANGING FAMILY PATTERNS: 1963 TO 1993–94

The number of children born to unmarried mothers not living with a partner has remained relatively stable for many years (at about five percent of all births).[2] As detailed below, however, the number of children whose parents have separated, divorced, and found new partners —sometimes several times—has increased dramatically in the past four decades.[3]

In the 1960s, more than 90 percent of Canadian children were born to first-time married parents—that is, parents who had neither cohabited with each other before marriage nor previously lived with another partner (see Figure 1). By 1993-94, this situation had changed significantly.

• Less than 40 percent of children were born to married parents who had not lived together before marriage or before the birth of their children.
• Nearly 33 percent of children were born to married parents who had lived together before they were married, and a further 20 percent were born to parents who were living together but were not married.[4]

Sources: 1961-63 births: Family History Survey 1984; 1971-73 births: General Social Survey 1990; and 1983-84 and 1993-94 births: National Longitudinal Survey of Children and Youth, 1994-95. Chart adapted from N. Marcil-Gratton and C. Le Bourdais. Custody, Access and Child Support: Findings from the National Longitudinal Survey of Children and Youth. Ottawa: Department of Justice, CSR 1999-3E, 1999.

A conservative estimate for 2001 is that 20 percent of children aged 11 and younger were born into a single-parent family or had experienced their parents' separation or divorce.[5] By 2001, as well, approximately 30 percent of children aged 12 to 19 had experienced life in a single-parent family.[6] Based on Statistics Canada population estimates for 2000, these two groups amounted to almost two million children (See Table 1).[7]

Table 1: Number of Children Affected by Parental Separation

Age group of children	Number of children in 2000	Estimated rate of parental separation	Number of affected children
0-11	4,657,302	20% of population	931,460
12-19	3,285,200	30% of population	985,560
TOTAL	7,942,502		1,917,020

CHILDREN'S AGE WHEN PARENTS SEPARATE OR DIVORCE

Figure 2 shows that 25 percent of children born between 1961 and 1963 were either born to a single mother or had experienced their parents' separation or divorce before the age of 20, and that half of these had gone through this experience before they reached the age of 10.

Children who were born 10 years later (between 1971 and 1973) experienced their parents' separation at an even younger age. Of these children, 25 percent had already experienced life in a single-parent family by age 15, and three-quarters of this group had gone through this experience before they reached the age of 10.

These dramatic demographic changes have taken place over a relatively short period of time, and the pace of change continues to increase. Twenty-five percent of all children born in 1983-84 experienced their parents' separation by age 10, and nearly 23 percent of children born in 1987-88 experienced it by the age of six.

Source: N. Marcil-Gratton and C. Le Bourdais. Custody, Access and Child Support: Findings from the National Longitudinal Survey of Children and Youth. Ottawa: Department of Justice, CSR 1999-3E, 1999.

Looked at another way (Table 2), these data show the proportion of children in each age group in the National Longitudinal Survey of Children and Youth who experienced at least one family transition between birth and 1994-95.

Table 2. Proportion of Children Going Through at Least One Family Transition Between Birth and 1994–95

Age in 1994-95	0-1 year	2-3 years	4-5 years	6-7 years	8-9 years	10-11 years	Total
Percentage with at least one family transition	6.5	15.5	20.4	22.8	23.4	26.1	19.2

Source: Le Bourdais. The Impact of Parental Transitions on Children's Family Environment and Economic Well-being: A Longitudinal Assessment. Phase 1—Peliminary Analysis. An Analysis of the National Longitudinal Survey of Children and Youth.

Information on the same children was collected two years later, in 1996-97. Preliminary analysis of these data indicates that many children had experienced at least one family transition in the intervening two years. Overall, eight percent of children experienced at least one change in their circumstances in those two years, but among those whose parents were already apart in 1994-95 the percentage was much higher. Almost two-thirds of the latter group had experienced some further change in their family environment, in comparison to only 15 percent of children whose parents were together when the children were born.[8]

RELATIONSHIP BETWEEN TYPE OF UNION AND RISK OF SEPARATION OR DIVORCE

Parents' decision to live together rather than to marry has far-reaching consequences for the survival of the family unit.[9] As shown in Figure 3, more than 60 percent of children born into common-law families will, before they reach the age of 10, experience their parents' separation. Risk of separation after the birth of children is about equal for common-law couples who married before and those who married after the birth of their children, at between 25 and 30 percent. Children whose parents married without living together first face the lowest risk of their parents separating before age 10 (less than 15 percent).

Source: N. Marcil-Gratton and C. Le Bourdais. Custody, Access and Child Support: Findings from the National Longitudinal Survey of Children and Youth. Ottawa: Department of Justice, CSR 1999-3E, 1999.

CUSTODY ARRANGEMENTS UNDER COURT ORDERS, 1994–95

After separation, mothers receive custody of the children in the overwhelming proportion of cases. The National Longitudinal Survey of Children and Youth data on custody, access, and child support arrangements indicate that in cases where a court order existed, close to 80 percent of children younger than 12 were placed in their mother's custody. Almost 7 percent were placed in their father's custody, and 13 percent were in a shared custody arrangement.[10] Unfortunately the survey does not contain any information on the number of parents who may have unsuccessfully applied for different types of custody arrangements.

These proportions change according to the age of the children at the time of separation. Older children are more likely to be placed in their father's care or in shared physical custody arrangements. Among children aged 6 to 11, one child in four was entrusted to his or her father's care, either exclusively (8 percent) or jointly with the mother (16 percent). Among children aged 5 and younger, only 18 percent were in the sole custody of their father (6 percent) or in shared custody (12 percent). Finally, children from broken common-law unions were most likely to remain in the custody of their mothers (84 percent).[11]

ACTUAL LIVING ARRANGEMENTS

Regardless of the custody arrangements that parents reported, data from the National Longitudinal Survey of Children and Youth show that the overwhelming majority of children (81 percent) live only with their mother at the time of separation. [12] Even where there is a court order for shared custody (in about 13 percent of cases), children are still more likely (76 percent) to live with their mothers, while 15 percent lived with their fathers. In only 9 percent of cases is the living arrangement "equally shared" between the parents.[13]

CHILD SUPPORT ARRANGEMENTS

The National Longitudinal Survey of Children and Youth also provides information on the child support arrangements parents made when they separated. The most significant finding is that there are no child support agreements for almost one-third of Canadian children whose parents have separated.

Table 4. Type of Support Agreement According to Type of Broken Union, 1994-95

	Type of broken union (percentage)
Type of support agreement	Marriage divorce %	Marriage separation%	Common-law separation %	All Unions %
Court order	48.7	15.6	20.3	27.8
Court order in progress	8.3	8.3	8.2	8.3
Private agreement	25.9	39.4	29.2	31.5
No agreement	17.2	36.7	42.2	32.5
Total*	100	100	100	100
N**	1047	1077	1184	3308

• ^* Due to rounding, columns may not add up to 100%
• ^** N = Weighted data brought back to the original sample size.

Source: Marcil-Gratton and Le Bourdais.1999 (footnote 2)

Children whose parents had divorced at the time of the survey were more likely to be covered by some type of child support agreement than were children whose parents had separated but not divorced. When the parents were divorced, parents said there was a court order in place, or in progress, in 57 percent of cases, and there was no agreement in only 17 percent of cases. Children from common-law unions were least likely to be covered by a child support agreement, followed closely by children whose parents who have not yet obtained a divorce.[14]

Some children will experience several changes in their family situation before reaching the age of majority. For these children the arrangements for their care and financial support may change significantly over time, whether formally through the courts or by means of an informal agreement.

RELATIONSHIP BETWEEN TYPE OF CHILD SUPPORT ARRANGEMENT AND REGULARITY OF PAYMENT

According to respondents to the National Longitudinal Survey of Children and Youth, children covered by a private agreement between the parents are more likely to receive regular support payments than are children whose parents have arrangements under a court order. Two-thirds of children under private agreements benefited from regular support payments compared to 43 percent of children whose parents had a court-ordered agreement. Moreover, cases in which there have been no payments in the last six months are much more common among parents who have a court order than among those with a private agreement (30 percent versus 14 percent).

This trend holds true regardless of the type of broken union. For children whose parents were married and made a private agreement regarding child support, the data show a high proportion (73 percent) of regular payers; in only 8 percent of cases, payments had not been made for the last six months. In the case of broken common-law unions, the proportion of cases in which there had not been a payment in the last six months is much higher, regardless of whether there was a private agreement between the spouses (24 percent) or whether a court order was in place (45 percent).[15]

RELATIONSHIP BETWEEN VISITING PATTERNS AND PAYMENT OF CHILD SUPPORT

Marcil-Gratton and LeBourdais report that there is a close association between regularity of payments and frequency of visits. Among children living with their mother, and for whom child support payments were regular and on time, close to half (48 percent) visited their father every week, while only 7 percent never saw him. In comparison, fathers who did not regularly provide for their children financially had fewer contacts with their children. Only 15 percent of children whose fathers had not provided child support payments in the last six months saw their father weekly; 28 percent never saw him.

The regularity of payments appears strongly related[16] to the likelihood of fathers maintaining frequent contact with their children. The impact of this relationship remains important even after taking into account the type of custody and child support arrangements, the type of union, the level of tension between parents, and the time elapsed since separation.[17]

RELATIONSHIP BETWEEN FAMILY TYPE AND CHILD POVERTY

According to the recent Statistics Canada report Women in Canada, 2000, lone-parent families headed by women have the highest incidence of low income. Based on 1997 data, 56 percent of these families fell below the low-income cut-offs. The situation has remained virtually unchanged since 1980, when the rate was 57 percent. [18]

Lone-parent families headed by women also account for a disproportionate share of all children living in low-income situations. Although only 13.4 percent of all children aged 18 and younger who were living at home in 1997 belonged to lone-parent families headed by women, these families accounted for over 40 percent of all children in the low-income category.[19]

RELATIONSHIP BETWEEN SOCIAL ASSISTANCE AND CHILD SUPPORT

To better understand how getting child support payments affects low-income recipients, the Department of Justice reviewed the way child support influences the amounts of income-tested benefits such as social assistance, health services, housing subsidies, child care subsidies, access to legal aid, and government cash transfers. The Department did this in each jurisdiction.[20]

Generally, social assistance ministries treat child support received as income, and deduct the full amount from the benefits delivered by the provincial or territorial government. Saskatchewan, British Columbia, and Yukon exempt the first $100, as does Quebec if the child is under the age of five.

Child support is considered income when calculating the parent's co-payment for health services, housing subsidies, child care subsidies and access to legal aid for civil purposes. The benefits that provinces and territories provide vary greatly.

Government cash transfers, the most notable being the National Child Benefit, generally use the family's net income to calculate the amount delivered by federal, provincial, and territorial governments. Non-taxable child support is not considered in the family's net income.

EFFECT OF CHANGING FAMILY SITUATIONS ON CHILDREN

Studies on the effects of separation and divorce on children have found that while most children come through the changes to their family fairly well, some are harmed by the experience, even well into adulthood.

Of all the things that can affect children, such as troubled relationships with their parents and economic disadvantage, parental conflict —before, during and after separation and divorce—has the most noticeable impact.[21] Children who grow up surrounded by conflict between their parents are often poor achievers at school and have behavioural and psychological problems and reduced social skills.[22]

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