BY PAUL B. ADAM, ASSOCIATE LAWYER
Canada's
Child Support Guidelines are 20 years young this year.
The guidelines were enacted in 1997 and created a single, comprehensive guideline for how child support payments are calculated. The
Child Support Guideline tables can be looked up and used online by anyone a web browser.
Since being enacted, the guidelines have received both accolades and criticisms, as you would expect from a piece of legislation that has an impact on virtually every couple with children that separates in Canada.
But leaving all arguments aside, a survey of some key statistics involving children, women, and family law litigants show that transfer payments to divorced and single mother fill an important social need, and the current child support system works pretty well at getting those payments made.
It's worth re-examining what the goals of the Child Support Guidelines are, in order to understand why and how they fulfill those goals, however imperfectly:
Federal Child Support Guidelines (Regulation 97/175 to the Divorce Act):
Section 1: OBJECTIVES
The objectives of these Guidelines are
(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;
(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;
(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and
(d) to ensure consistent treatment of spouses and children who are in similar circumstances.
A: Fair Standard of Support:
The Guidelines were formulated in answer to the deceptively complicated question "How much does it cost to raise a kid?"
The answer, according to the guidelines is "40% of the cost of providing for an adult for the first child, and 30% for each additional child".
When looking back at the process that led to the creation of the guidelines, a formula was selected that yielded a higher "cost" per child than other economic formulas that were considered by the government during the consultation process.
An argument cited by the advocacy group Fathers Are Capable Too is that this was a piece of social engineering that was intended to increase the amount of money that support recipients (who were- and are- overwhelmingly female) receive.
Another argument, cited by the Conservative thinktank the Fraser Institute is that the "40/30" formula was developed to measure childcare costs at the poverty line, and that as incomes increase above and beyond $150,000, the Guidelines tend to overestimate the cost of child support.
Let's say one or both of these arguments was true. Is this fair?
Whatever one thinks about the guideline as a solution, the problems it attacks are real. Most children live with the mother, and mothers earn less than their male counterparts, and are over-represented in poverty statistics:
- 85% of child support payers are men and 70% of children primarily reside with their mother [Divorce Fact Sheet, 2016]
- Women still earn 73.5 cents for every male dollar, as of 2016. [Statscan/Globe & Mail, 2016]
- Single mothers have the highest poverty rate in Canada of any family type and are more likely to fall into poverty than single fathers following a separation. [Gadalla, 2008]
- In 2013, the median income among single parent families was $51,800 for male-led families and $39,400 for female-led families [Statscan]
- "Women's median income for the year of their separation or divorce dropped by about 30%, whereas men's median income decreased by only 6%" [Department of Justice, 2016]
- Children are 11 times more likely to fall into poverty following a separation or divorce [Statscan]
At the time the guidelines were enacted, the income disparity between women and men was worse than it was today. The penalty to women was exacerbated by the fact that child support used to be taxed in the hands of the recipient parent, but not the payer, an issue that was litigated up to the Supreme Court in
Thibaudeau v Canada (1995).
Canada's Charter of Rights and Freedoms spells out that this is a country that believes in substantive equality, not just formal equality. That means it's possible, and appropriate, to create legislation that tries to proactively address social ills.
Legislation that addresses these problems was (and is still) necessary, especially when it minimizes the legal cost to parents of obtaining support for children.
Which brings us to Objectives B and C:
B+C: Reduce Conflict and Tension/Improve the Efficiency of the Legal Process:
Family Law is an incredibly expensive proposition. A huge portion of litigants are self-represented (estimates of this number are around
64%, but the real numbers may be higher), due in large part to unaffordable lawyer's fees. Yet despite the costs, family law cases are also extremely prevalent in Court. They make of
35% of all civil cases, far more than any other single type of litigation.
What the Child Support Guidelines help to do is take the issue of child support off the table, quickly.
Statscan published
a valuable survey about our country's court system in 2012. It showed that while Child Support continues to be an issue, it is no longer a driving factor in most
family law litigation, and it does not tend to tie family law cases in court for long.
- In separation cases that have gone to court, where the only issue relating to the children was child support, the issue is resolved in one third of cases after 6 months. Child support was resolved in just over half of cases after a year. In over 70% of cases, the issue is resolved after the two year mark.
- Cases where the only issue is child support make up only 8% of family law court cases.
There used to be prevailing stereotypes about "deadbeat dads" in their legion who refused to pay child support. The reality is, though, child support is paid, at least in part, in the majority of cases where it is ordered.
In the provinces were data was collected from the government agency that was responsible for collecting child support (like Ontario's Family Responsibility Office), Statscan found in
its most recent snapshot that around 70% of spouses enrolled in a program for collecting child support pay, and only about 10% of those enrolled don't pay regularly. Over the first few years of enrollment, most (80%) of child support owed gets paid.
It's hard to know how many children of separated spouses are falling completely outside the legal system and are not being tracked by these numbers at all. But inside the legal system, there is some compelling evidence that child support gets paid most of the time, and that it happens without the issue being expensively litigated.
D: Consistency:
It's hard to argue that the Guidelines have not achieved consistency. Even if you do not agree with the scientific basis of the formula that the Guidelines have imposed, the rap on the Guidelines is that they sacrifice nuance and variability for the sake of achieving results, and certain socio/political objectives.
The biggest tribute to how well the Guidelines have worked is that the Court system has tried to replicate their success with the introduction of the Spousal Support Advisory Guidelines. The SSAG's are the statistical engine that drive automated software such as Divorcemate and they are nearly as influential as their older sister, though not technically even part of the law.
Since the introduction of the Child Support Guidelines, there have also been calls,
including by this blog, for the further streamlining of family law cases by imposing a doctrine that all family law cases start with a presumption that the parents are entitled to joint custody, and then requiring a dissenting parent to prove a departure from this presumption is justified in the best interests of a child.
This, if implemented, would not be a perfect solution to the issue of custody, but would likely further reduce the number of litigants in the family law system.
The Child Support Guidelines are far from a perfect or precise measuring instrument, but I think the numbers unequivocally show that twenty years on, this piece of legislation is still useful
and necessary.
- Paul B. Adam, Toronto
