CBA Influence Filings
The CBA’s Family Law Division urges the federal government to make changes to the Child Support Policy to help children and reduce conflict between ex-spouses.
The current method of calculating shared-care maintenance obligations does not work for most families in this situation. In a letter to Justice Canada, the Canadian Bar Association’s Family Law Division says the government should make changes to the Federal Child Support Guidelines for shared-care situations. “A rebuttable presumption that the direct offset is used in these cases would better correspond to the objectives of the guidelines,” says the section.
Section 9 of the guidelines deals with joint care and states that expenditure in these circumstances should be determined taking into account the amounts shown in the tables for each spouse, the increased cost of joint care, and the conditions, means and circumstances of each spouse.
In Contino v Leonelli-Contino, Judge Bastarache examined child support for children whose parents shared their care and wrote: “When adopting s. 9, Parliament deliberately chose the goals of fairness, flexibility and recognition of the real Emphasize the conditions, means, needs, and other circumstances of each spouse and child for whom assistance is sought, even if it compromises predictability, consistency, and efficiency to some extent. “
However, the section notes that the use of Contino is impractical in most cases. “The difficulty and effort involved in fulfilling the requirements of s. 9 (b) and (c) of the guidelines does not meet the objectives of the guidelines, ensuring that children continue to benefit from the resources of both parents, increasing conflicts and tensions between them the parents, reduces the objectivity of the calculation of child support and is detrimental to efficient judicial proceedings. “
In addition, preparing a contino analysis can be time consuming and costly, and the process is particularly daunting for self-advocating parties as the guidelines do not provide guidance on how to deal with these complex issues.
The section’s suggestion is to implement a rebuttable presumption of direct offsetting in the case of shared care. This means that the parent with the higher income pays the other parent the difference between the respective table amounts.
“This assumption would provide guidance to parents and courts, increase the predictability, consistency and efficiency of the courts, and reduce parental conflicts by making the calculation of child support more objective. This would also allow parents to easily adjust support in the event of changes in income, and it would allow recalculation services (if available) to recalculate support based on a specific formula. A guess would also improve access to justice by increasing the simplicity, predictability and objectivity of child support calculations in shared-care situations. “
Making the direct balance to a presumption would leave the option open to the parties to rebut the presumption in cases where it would be inappropriate, such as other provisions in the guidelines that allow these arguments.
One possible cause for concern with the Section’s proposal is that expenses that would normally only be borne by one parent and that are not part of the current definition of special or extraordinary expenses, generally referred to as “s. 7 issues ”, like outerwear. “These concerns should be allayed by creating a new category of s. 7 expenses to be considered in the case of shared care / parental responsibility. This category could be in a new s. 7 (1.2) and include items such as haircuts, outerwear or other items or services for which the costs incurred benefit the children in both houses. “
The Section also recommends revising s. 7 Expenses that include expenses such as electronics, sports equipment not related to formal tuition, or insurance for vehicles driven by children. “If there is no desire to expand the listed s. 7 Expenses a general category of expenses may be added in appropriate cases at the discretion of the court. “
The current method of determining the maintenance obligation in shared care will not work for most families in this situation. The changes proposed by the CBA section would ensure that children continue to benefit from the financial resources of both parents, reduce conflicts between former spouses, promote efficiency and coherence in child maintenance arrangements, and improve access to justice.
Brigitte Pellerin is the Editor of Publications for the Canadian Bar Association.
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