Reform
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they would both be guardians and
able to exercise an extensive list of
parental responsibilities, including day-to-day care and control.
The white paper states that it
does not intend to introduce a presumption in favour of a 50-50 split
of parental responsibilities or time.
However, this is what would result
from the current proposal. Studies
raise concerns about any unreflective embrace of either joint legal or
physical custody as a panacea in
the difficult field of post-separation
parenting. Although parents can
vary the shared guardianship, in
circumstances of conflict, it is less
than likely that parents will pay
close attention to the best interests
factors itemized above.
The white paper states that the
goal is to encourage parents to
continue to co-operate. Parents
are free to adjust the parental
responsibilities and tailor parenting arrangements to their own
circumstances. However, this
ability to alter the presumed joint
responsibilities is premised on
the assumption that these parents
are able to co-operatively negotiate. If such co-operation is not
possible or appropriate, for
example in abuse scenarios that
make it difficult for a parent to
negotiate, or where children are
used as a way to maintain power
over one parent, the parent with
concerns about ongoing guardianship residing with both parents must seek a court order to
alter the presumed equal allocation of responsibilities.
This proposal marks a major
change from the default position
provided by current B.C. law:
when parents separate, the parent who usually has care and
control of the child has guardianship, unless agreed or ordered
otherwise. Similar provisions
exist for custody. These default
provisions take account of the
fact that for most separating
parents, an asymmetrical division of responsibilities exists.
The current system does not
prevent parents from agreeing
to a more shared scenario — many do — nor does it
prevent court orders for joint
custody and guardianship,
which are made quite often.
The proposed law has a radically
different default—of joint guard-
ianship — regardless of the past his-
tory of parenting or the quality of
the relationship between the par-
ents. This default would generate
serious problems for a parent care-
giver who is dealing with a manipu-
lative or abusive spouse, or one who
has not demonstrated commit-
ment to a child in the past.
Divorce Act reform
Federal fix needed to permit
child support recalculation
based on imputed incomes
CRISTIN SCHMITZ
Susan Boyd is a professor of
law at the University of British
Columbia.
PETER SUTTON, B.M., B.Ch., F.R.C.P.(c)
Consultation and Assessment:
Parental Separation and Divorce
Custody and Access
Child Welfare
Parenting Capacity
Civil Litigation
164 Monarch Park Avenue
Toronto, Ontario
M4J 4R6
Telephone: 416-960-8996
Facsimile: 416-960-9673
e-mail:
peter.sutton@psychiatryinlaw.com
Medicolegal consultation in psychiatry
Children, families, adults
Support recipients are flocking to Alberta’s new child support recalculation service, but
more children could be helped if
the federal government reforms
the Divorce Act to permit provinces to impute income to parents who fail to disclose earnings, says the program’s director.
“I think that things are going
very well for us — we have a lot of
interest, and we are able to assist
people,” says Edmonton’s Angela
Kerr, the former family law practitioner who leads the Alberta
Justice Child Support Recalculation Program, which opened its
doors Jan. 1.
Kerr told The Lawyers
Weekly some of the clients
assisted by the program had not
had their child support adjusted
for a decade. “Finally now there
is an easy, non-confrontational…
way of having their support
revisited,” she said. “We have
helped…a lot of recipients get
their child support increased and
up-to-date.”
Although the program has been
a boon to lower- and middle-
income recipients, mostly women,
who cannot afford to go to court,
the recalculation service assists
payers too, Kerr noted. “We have
had a great many [support
recalculations] go down.”
Alberta is the latest province to
set up a service which annually
adjusts court-ordered child sup-
port amounts, based on changes in
the parties’ incomes, without
requiring support recipients to
hire a lawyer and go to court.
Newfoundland and Labrador,
P.E.I. and Manitoba already have
recalculation services, while B.C.
has some pilot projects. Quebec
and Ontario are among other
jurisdictions currently looking
into the feasibility of setting up
their own services.
Alberta’s program is unique,
however, because it doesn’t
require recalculation to be court-ordered. This is important
because many older court orders
do not contain recalculation
clauses (Canada’s first recalculation agency was set up in Newfoundland in 2002).
Explains Kerr, “so what this
did for us was, from the day we
opened, we were able to consider
court orders as old as May 1, 1997
(when the federal child support
guidelines came into force) for
entry into our program.”
As of Sept. 30, 1,483 people had
applied to register their support
orders, or certain types of agree-
ments, with the program. There
were 950 active files, and 232
recalculation decisions had been
issued, according to statistics pro-
vided to The Lawyers Weekly by
Alberta’s Department of Justice.
During its first nine months of
operation, Alberta’s recalculation
program has found that three-quarters of parents are providing
income disclosure as required, and
about 75 per cent of recalculation
decisions result in an increase in
the base table amount.
Income disclosure remains the
biggest challenge for the program,
Other provinces are consid-
ering following Alberta’s approach
of imputing income in order to
save the huge hassle and expense
of having to go to court to force
income disclosure. That’s where
Divorce Act reform comes in, Kerr
suggests. “Our stumbling block is
if the child support order was
granted under the Divorce Act, we
are not able to apply our deemed
income increase provision.”
That means that in cases of
income non-disclosure, Alberta’s
program can only recalculate child
support orders made under prov-
incial legislation, leaving support
recipients and children covered by
the Divorce Act without recourse,
other than to go to court to force
disclosure — which is cost-prohibi-
tive for most people.
“Roughly one-quarter of
Divorce Act files we don’t get disclosure on,” Kerr said. “It means
that there is a significant proportion of clients who are not receiving equal access to justice because
of the wording of the Divorce Act.
And I think it was an inadver-tent…unintended consequence.
Surely if the politicians had a full
discussion about what’s going to
happen if someone doesn’t provide
their income disclosure they would
Kerr
have wanted an easy administra-
tive scheme for dealing with those
situations, because that’s what s.
25.1 is all about.”
Section 25.1 of the Divorce Act
authorizes the federal government
to enter into agreements with the
provinces and territories allowing
the latter to set up administrative
agencies to periodically recalculate
child support on the basis of
updated income information.
“The federal government takes
the position that this means no
deemed income increases are
allowed,” said Kerr. “In Manitoba,
in P.E.I., in Newfoundland they
get around that because they have
recalculation clauses in their
orders. The first thing the clause
says [for example] is ‘this order
will be recalculated by the child
support recalculation program of
P.E.I. or Newfoundland or Manitoba. You will disclose your
income every year. If you don’t,
it’s a 10-per-cent increase.’ So they
get around it because the court
has ordered an increase. In
Alberta, because we are not
requiring those clauses, and in
fact we don’t want those clauses,
we have a problem. The only way
that we can complete the recalculation in those Divorce Act situations where there hasn’t been disclosure is for our program to
bring a court application and get
that court authorization.
“So we are stuck bringing those
applications, which we are doing
on a pilot basis. But I don’t know if
we will be able to continue because
they are very resource-intensive.”
Ottawa’s Lise Lafreniere Hen-
rie, senior counsel and co-ordin-
ator of family law policy at the
federal Department of Justice,
told The Lawyers Weekly the fed-
eral government “is aware of the
issue that has been raised by
Alberta, and the question now is
when there will be an opportunity
to move forward with amend-
ments to address that.”
Lafreniere Henrie said there
were bound to be unforeseen
issues, given that the child support
legislation was drafted a decade
before the first provincial recalcu-
lation service was up and running.
“We do need the amendment,”
Kerr stressed. “The amendment
basically would need to say something to the effect of ‘if there is no
[parental income] disclosure, the
provincial law applies as to what
the effect of that non-disclosure
is,” she explained. “That would
help everybody across the country,
because some of the new programs looking at opening, I
believe they would find the same
issue that we have.”
