Report of the Follow-Up Committee on the Quebec Model for the Determination of Child Support Payments

July 2004

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CHAPTER 5 (cont): PART 4—CALCULATION OF ANNUAL PARENTAL CONTRIBUTION

CONTEXT

The disposable income of both parents (i.e. the sum recorded at Line 306) is matched with the corresponding figure in the Table to Determine the Basic Parental Contribution, based on the number of children concerned, to establish the basic parental contribution (Line 401).

The basic parental contribution is “presumed to meet the needs of the child and to be in proportion to the means of the parents” (article587.1, para. 1, C.C.Q.). Given the presumptive value of this legal provision, it is not necessary to provide proof with regard to the basic needs to be covered by the child support payments.

At Line 400, respondents are asked to indicate the number of children covered by the application, namely those whose birth dates are recorded in Part 1—Identification (Lines 102-107) of the Child Support Determination Form. These are the children for whom support payments must be determined (i.e. those from the union of the two parties in question) since the calculation procedures provided in the form cannot be applied to situations involving children from other unions. The latter situations may, however, be addressed in an agreement between the parents (Part 7) or in a claim based on the concept of undue hardship.

In accordance with article587.1, para. 2, C.C.Q., the basic parental contribution may be increased in cases where expenditures related to child care are incurred; these include basic child care expenses (Line 403), post-secondary education expenses (Line 404) and special expenses (Line 405). As opposed to the sum obtained from the table to cover basic needs, which is awarded automatically, proof of such child-related expenses must be provided before they are added to support payments, unless otherwise stipulated in an agreement between the parents.

LAW, REGULATION AND FORM

Civil Code of Québec

33.

Every decision concerning a child shall be taken in light of the child’s interests and the respect of his rights.

Consideration is given, in addition to the moral, intellectual, emotional and material needs of the child, to the child’s age, health, personality and family environment, and to the other aspects of his situation.

587.1

As regards the support owed to a child by his parents, the basic parental contribution, as determined pursuant to the rules for the determination of child support payments adopted under the Code of Civil Procedure, is presumed to meet the needs of the child and to be in proportion to the means of the parents.

The basic parental contribution may be increased having regard to certain expenses relating to the child which are specified in the rules, to the extent that such expenses are reasonable considering the needs and means of the parents and child.

587.2

The support to be provided by a parent for his child is equal to that parent’s share of the basic parental contribution, increased, where applicable, having regard to specified expenses relating to the child.

The court may, however, increase or reduce the level of support if it is of the opinion that, in the special circumstances of the case, not doing so would entail undue hardship for one of the parents. Such hardship may be caused by, among other things, the costs involved in exercising visiting rights in respect of the child, obligations of support toward persons other than the child or reasonable debts incurred to meet family needs. The court may also increase or reduce the level of support if it is warranted by the value of either parent’s assets or the extent of the resources available to the child.

Regulation respecting the determination of child support payments

• 1. These Rules, including the form and the table to which they refer, apply to any application concerning the parents’ obligation of support toward their minor child.

  They also apply to an application filed by a parent in respect of a child of full age who is not able to support himself, particularly because he is pursuing full-time studies. In that case, the applicant parent is presumed to hold a mandate from the child of full age to represent him in the exercise of his rights to support.

• 2. The Court may fix the support payable for a child of full age at a level that departs from the level of support which would be provided under these Rules, if it deems it appropriate, taking into account all the circumstances in which the child finds himself, particularly his age, health condition, level of education or nature of his studies, civil status, place of residence, as well as his level of autonomy and, where applicable, the time needed by the child to acquire sufficient autonomy.

• 9. For the purposes of these Rules, including the related form and table,

  “annual income” means income from any source, in particular wages, salaries and other remuneration, support paid by a third party and received for one’s own needs, employment insurance benefits and other benefits granted under a statutory pension or compensation plan, dividends, interest and other investment income, net income from rental activities and net income from the operation of a business; notwithstanding the foregoing, this definition excludes government family transfers, benefits granted under the parental wage assistance program and income security benefits;

  “disposable income” means the annual income, less the amounts mentioned in Part3 of the form as the basic deduction and deductions for union and professional dues;

  “child care expenses” means, in addition to the annual child care expenses required to fulfil the child’s needs, the child care expenses that the custodial parent must incur in particular to hold employment or to receive training or by reason of his health condition;

  “post-secondary education expenses” means the annual expenses incurred so that a child may pursue post-secondary studies, including in particular, in addition to tuition fees and expenses for required pedagogical materials, transportation or accommodation expenses incurred for the purpose;

  “special expenses” means annual expenses other than child care expenses and post-secondary education expenses, such as medical expenses, expenses for primary or secondary studies or for any other educational program and expenses related to extracurricular activities, where those expenses are linked to the needs required by the particular situation experienced by the child;

  The expenses described above shall be understood as expenses less any related advantage, subsidy, deduction or tax credit.…

• 12. The amounts in the table in Schedule II shall be indexed by operation of law as of 1 January of each year, following the annual Pension Index established in accordance with section 119 of the Act respecting the Québec pension plan (R.S.Q., c. R-9), unless such indexing would result in bringing the annual basic parental contribution to more than half of the parent’s disposable income.

  Where an indexed amount is not a multiple of $10, the closest multiple of $10 shall be substituted therefor.

  The Minister of Justice shall publish yearly in the Gazette officielle du Québec a child support determination table indicating the amounts indexed pursuant to this section.

Child Support Determination Form (Schedule 1), Part 4, Lines 400 to 407

Part 4—Calculation of annual parental contribution

• 400—Number of children covered by the application
• 401—Basic parental contribution according to disposable income of both parents (line306) and the number of children (line 400)
  See table in ScheduleII
• 402—Basic parental contribution of each parent (line 401 X line 307)
• 403—Child care expenses
• 404—Post-secondary education expenses
• 405—Special expenses (specify)
• 406—Total expenses (add lines 403 to 405)
• 407—Contribution of each parent to expenses (line 406 X line 307)

PROBLEM AREAS

A number of problem areas related to Part 4 of the form are considered in subsequent sections, concerning:

• children covered by the application and support obligations applying to other unions (see the section of the report pertaining to Line 400);
• the erroneous interpretation made by many to the effect that the needs covered by the table are limited to the nine recognized essential needs (see the section pertaining to Line 401); and
• the interpretation of the term child care expenses (see the section pertaining to Lines403, 404 and 405).

PART 4—LINE 400—NUMBER OF CHILDREN COVERED BY THE APPLICATION

CONTEXT

The number of children is one of the essential parameters used to determine the basic parental contribution. By applying this criterion in particular, the parent will be able to pinpoint the amount applicable to his or her situation in the table:

Using the “disposable income of both parents” (Line 306), it is possible, based on the number of children, to determine “the basic parental contribution” outlined in the provincial table, in Schedule 2 of the Regulation respecting the determination of child support payments.[17]

The rules currently provided in the model do not make it possible for a parent to deduct from his or her annual income other support obligations than the amounts pertaining to the case before the court.

Under the law as it stands, without an agreement between the parties, the only alternative offered by the Quebec model for the determination of child support payments as a means of overcoming the problem caused by various support obligations is to appeal in accordance with article587.2 of the Civil Code of Québec and show that the level of support established for the child or children in question entails undue hardship for the plaintiff parent.

As a matter of fact, “obligations of support toward persons other than the child [in question]” appears in article 587.2, C.C.Q., as a grounds for appeal on the basis of undue hardship.

LAW, REGULATION AND FORM

Civil Code of Québec, articles 33, 587.1 and 587.2

Regulation respecting the determination of child support payments, section 1

Child Support Determination Form (Schedule 1), Part 4, Line 400

PROBLEM AREAS

One of the main problems encountered when dealing with Line 400 involves defining which children are to be considered, especially if children from a union other than the one addressed in the case at hand are meant to be taken into account.

In this regard, it is worth noting that both article587.1 of the Civil Code of Québec and the Regulation respecting the determination of child support payments seem to apply only to the children of the parents before the court and not to those of one of the parents and another party not involved in the proceedings. Accordingly, children from another union cannot be taken into consideration when calculating support payments. On the other hand, the latter children could provide grounds for a court intervention under article587.2, para.2, of the Civil Code of Québec, based on undue hardship caused by obligations of support toward persons other than the child. However, a variation of the case law would suggest that the restrictive interpretation by the courts both of this justification and of all other possible reasons for reducing the level of support because of undue hardship makes it relatively difficult to have support payments reduced for this reason, unless otherwise stipulated in an agreement between the two parties. The problems in this regard are exacerbated by the legal fees and other expenses incurred by the contending parties in order to be heard by the court.

It should be noted, however, that article587.1, C.C.Q., and the Regulation, taken together, cover only the children of the parents before the court and not the children that one of the parents may have had outside of the family unit involved in the dispute. Accordingly, in Droit de la famille—2717, 1997 R.D.F. 542 (C.S.), Justice Lesage points out, quite rightly, that the calculation of support, using the table, must be carried out for the three children of the parties before the court and not for the four children, as sought by the debtor, who considered that his being the father of a child with his new spouse should be taken into account. The court ruled that “the respondent’s fourth child cannot serve in the present case as a justification for reducing the obligation of support toward the three children of the parties before the court” (p. 543). In other words, “outside” children cannot be taken into consideration when applying the table. On the other hand, the existence of such children may influence the final ruling from the point of view of “undue hardship” (article 587.2, C.C.Q.).[18]

The challenge here is to make sure that applying the model does not result in an unjust situation for support payers, i.e. that excessive obligations not be imposed upon them in light of their resources.

Certain observations made to the Committee by practitioners and parties before the court address this thorny issue:

I am including for your information a copy of the forms that must be completed, as well as the accompanying tables. You will note that no provisions are made for cases where the parties have other children from earlier or subsequent unions.

I am currently dealing with three cases for which this is creating difficulty and all family-law lawyers must have one or several cases of the same nature, given that approximately 50% of all unions eventually break up….

This flaw in the law should be remedied quickly, if we are serious about reducing separation costs for the parties before the court.[19]

VARIATION OF THE CASE LAW

Droit de la famille—2717 [1997] R.D.F. 542 (C.S.), J.E. 97-1521

The court ruled in the this case that the respondent, the father of a fourth child from a new union, may not base the calculation of his support contribution on his having four children. The court deemed that articles 587.1 to 587.3 of the Civil Code of Québec must be applied only to the children of the parties before the court. Accordingly, the respondent’s fourth child cannot be considered as a factor allowing him to reduce his obligation of support toward his other three children.

The case law indicates that priority must not be given to children from one union over those from another and that it is important to ensure that children from various unions receive equal treatment. On the other hand, the model does not clearly outline how to take into account support paid for a spouse or children from an earlier union, nor support obligations pertaining to a new union. The courts have addressed this problem on a case-by-case basis from the perspective of undue hardship. Parties making this claim must prove that paying the level of support determined by the model does indeed entail undue hardship for them.

• Droit de la famille—3026, J.E. 98-1340 (C.A.)
  (Undue hardship dismissed)
• Droit de la famille—2784, J.E. 97-1964
  (Undue hardship upheld)
• Droit de la famille—2753, J.E. 97-1682
  Undue hardship dismissed)
• Droit de la famille—2792, J.E. 97-1834
  (Undue hardship dismissed)

OBSERVATIONS

On average, the number of children covered by the application for support is 1.65, with the majority of cases involving one child (49%) or two children (38%). (See Section 3.2.6 of Chapter 4.)

We have no clear data concerning the number of cases involving children from other unions. The only data we do have in this regard can be found in Section 3.2.7 (explained and unexplained agreements) and Section 3.3 (undue hardship) of Chapter 4. These data are incomplete, making it impossible for us to be more precise about the issue.

In their responses to the survey, several lawyers and a certain number of mediators have pointed out that the model should take children from another union into account in the calculation of child support payments. Moreover, with respect to the principle that the model should, as far as possible, ensure equal treatment for all children from various unions regarding their right to support, it would appear that fewer than 50% of the responding lawyers consider that this objective has been reached, whereas over 75% of the mediators and special clerks do believe that the principle has in fact been respected.

In addition, the Committee is in agreement with trends in the case law indicating that children from other unions are not meant to be covered by the support application since the table is based on children from the same union. Hence it follows that Line 400 is meant to include only the children of the two parents covered by the form.

The Committee is also of the opinion that the obligation of support arising from earlier unions is not covered by the calculation procedure established in the Child Support Determination Form; rather, as the case law confirms, it is included under the concept of undue hardship that can be argued under article 587.2, para. 2, of the Civil Code of Québec.

On the other hand, the number of contributions and letters that the Committee received on this issue proves that it deserves special attention: Shouldthe model, and especially the Child Support Determination Form, in a simple and fair manner, take into account other obligations of support?

To ask this question is, in fact, to raise doubts about one of the basic principles of the model, namely that of ensuring, as far as possible, equal treatment for all children from various unions with respect to their right to support.

The following economic argument seems irrefutable: from the beginning of the relationship, the disposable income available to a second union is always reduced by the support paid to the first spouse. Hence, how can it be claimed that each union must benefit from the same disposable income? Doesn’t it only stand to reason that calculations of disposable income at the time of the second union’s break-up should automatically take into account any previous obligation(s) of support since the sums paid for support have never actually been available to members of the second union?

One of the reasons why it has been difficult to adopt simple remedial measures in this regard lies in the fact that earlier support payments may or may not have been deductible, or even that some have been and others have not, depending upon the case at hand. Disposable income is, for all intents and purposes, gross income and thus is subject to taxation, and the table does in fact take tax consequences into account in determining the basic parental contribution.

For some practitioners, the concept of disposable income used in the Child Support Determination Form (Line 306) does not entirely reflect a certain economic reality; for them, true “disposable income” should be net after-tax income, i.e. excluding social security and income tax deductions, as well as—in the present discussion—earlier obligations of support.

Before examining this argument more thoroughly, it is important to keep in mind a few of the basic concepts found in the model. We have already addressed the concept of income and the way it is handled in the table, where the table provides a list of gross incomes that only take expenditures for goods and services into account. It should also be recalled that even though the disposable income appearing at Line 306 represents, for all intents and purposes, gross income (at least from an income tax standpoint), the sum has already been reduced by a basic total deduction of up to $18,000, not to mention deductions for union and professional dues, if applicable. Hence this sum does accurately reflect, for purposes of the model, the parents’ disposable income.

The Committee carried out certain simulations as a means of clarifying its views concerning other obligations of support.

One very simple solution would be to add a line to Part 3, between lines 303 and 304, where the user could record earlier obligations of support. Accordingly, the figure appearing at Line 304 would include these obligations of support, and a lower disposable income would thus be used in calculating the basic parental contribution to be provided by the second union.

This seems like a simple solution, but certain problems do nonetheless arise.

First of all, questions might be raised concerning the fact that certain earlier obligations are deductible (usually those pertaining to former spouses), while others are not (usually child support payments), and that the two types of obligations may also be assumed simultaneously (child support payments and support for a former spouse, or obligations of support still subject to tax treatment).

In cases such as these, should a distinction in fact be made between the two? If so, should the non-deductible support contribution now become subject to tax treatment, in keeping with Part3 (that deals with before-tax amounts), or should deductible obligations of support be made non-taxable, on an equal footing with sums appearing in the table that are determined using non-taxable amounts? The first solution seems to be the logical one. It does, however, include calculations that can perhaps only be carried out by those having access to special software. Also, it goes against the current principle according to which child support payments should be removed from the tax system.

The second problem may be stated as follows: Should all obligations of support arising from other unions be taken into account, or only those pertaining to child support?

In this regard, it is the view of the Committee that all earlier obligations of support must be considered, not just child support obligations. In fact, given that calculations of parental income must include “support paid by a third party and received for one’s own needs”(Line 204), on the basis of what principle could support paid to a third party and received for personal needs in fact be excluded?

Another consideration should be added here. If a parent is required, when calculating obligations of support toward children from a second union, to include in his or her income at Line204 support received for personal needs from a support payer from an earlier union, what reason could there possibly be to deny the payer the possibility of deducting both child and spousal support payments?

In order to promote the objective of equal treatment of children, the courts have ruled that children from all unions should be treated the same way, determining at the same time that the same income of the parent common to both (or several) unions should be used for purposes of calculating support.

The following question must be addressed: Why did the lawmakers include Line 204 when indicating how to calculate parental income? As things currently stand, the parent covered by Line 204 is no longer on an equal economic footing. This parent’s income, for purposes of determining his or her obligation of support toward children from the first union, does not include any personal spousal support received, whereas when calculating the income of the second union, the latter support payments must be taken into account. Some would argue that if such support is awarded to cover personal needs, it should not be included when calculating the needs of children from the second union.

The Committee considers that by including Line 204 in the Child Support Determination Form, the lawmakers basically established an order of priorities pertaining to various unions over time.

This line may also have been included to reflect the description of income found in what was once Form II of the Quebec Superior Court (now Form III), which was used to determine the support needs of both parties, the spouse and the children, and which is still used to establish the spouse’s needs only.

The fundamental concept of personal responsibility includes accepting responsibility for the consequences of one’s actions, and these consequences do not, as it were, disappear over time. Thus, the very act of choosing a spouse has definite consequences which, if the relationship should collapse, lead to certain obligations. The same holds true when a couple chooses to have children: obligations remain in the wake of any break-up.

In time, these obligations will be set down in an agreement or a support order. If one of the parties subsequently chooses to form a new union, he or she must continue to assume the consequences of the earlier break-up. Hence, the latter will enter into any new relationship with a disposable income lessened by this obligation of support.

The new responsibilities entailed by a second union may only be taken on while respecting, and within the limits imposed by, the obligations arising from the first. The new partners, and any children they may have, will have to depend on a disposable income reduced accordingly.

Over the course of its mandate, the Follow-up Committee debated whether it would be appropriate to add new rules to the model so that parents might deduct amounts or a percentage of amounts paid in order to fulfil other obligations of support besides those covered by the application in question.

This may be the opportune moment to try to discern the scope the lawmakers intended to give one particular objective of the model, namely that of providing, as far as possible, equal treatment for all children from various unions with respect to their right to support.

Does respecting the latter principle mean that the monetary value of each support obligation must be equal? It may be argued that whereas everyone has the same right to apply for support, the level of support actually awarded may nevertheless depend upon the parents’ ability to pay and their obligations with respect to other unions.

The Committee has therefore studied the possibility of introducing specific rules and thus limiting the discretionary power of the court, as it is currently outlined in article587.2 of the Civil Code of Québec with reference to undue hardship. Committee members believe that it is important, in order to guarantee the on-going fairness of the model, to ensure that all the children’s needs are met, while considering the possible difficulties the support payer may face in fulfilling all of his or her obligations.

A variation of the case law reveals a certain trend whereby judges, in the current legal context, are reluctant to give more importance to one union over another. Thus a number of judges refuse to establish a scale of priorities as concerns various unions and the children from these unions.

It may nevertheless be advisable to leave a certain discretionary power in the hands of the court, other than that based on the concept of undue hardship, in order to allow judges to reduce support contributions in light of support obligations linked to other unions. In any case, studies looking at various solutions to the problem raised by such support obligations should definitely be pursued.

THE COMMITTEE’S RECOMMENDATIONS

In order to reduce any ambiguity created by the phrase “Number of children covered by the application,” the Committee recommends that:

The phrase “Number of children covered by the application” found in Part1, Line400, of the Child Support Determination Form be changed to “Children of the two parties covered by the application.”

With respect to obligations of support linked to other unions, the Committee recommends that:

The Ministère de la Justice pursue the study initiated by the Committee of different solutions concerning support obligations arising from other unions.

PART 4—LINE 401—BASIC PARENTAL CONTRIBUTION ACCORDING TO DISPOSABLE INCOME OF BOTH PARENTS (LINE 306) AND NUMBER OF CHILDREN (LINE 400)

CONTEXT

The Table to Determine the Basic Parental Contribution

In order to determine the basic parental contribution to be recorded at Line 401 of the Child Support Determination Form, parties must consult the Table to Determine the Basic Parental Contribution which makes up Schedule II of the Regulation respecting the determination of child support payments.

This table contains, for each disposable income bracket and according to the number of children covered by the application, the sum corresponding to the basic parental support contribution that applies to each individual case.

The table is of predominant importance to the model for determining support; in fact, it is arguably the key to the entire support calculation process.[20]

The Table to Determine the Basic Parental Contribution was drawn up by taking into account the financial burden that a child represents for the average Quebec family budget. Thus it is not the product of a theoretical calculation process but rather of an analysis of typical family habits:

The Table to Determine the Basic Parental Contribution of the model for the determination of child support payments was based on data concerning Quebec found in the Survey of Household Expenditures carried out by Statistics Canada in 1986. Both expenses and income were indexed according to the Statistics Canada consumer price index and the average weekly wage of salaried workers. Households were then classified on the basis of their income bracket.

The total expenses incurred by families with children were then compared to those incurred by couples without children of the same income bracket. In most cases, it was discovered that practically the entire family income is allocated to cover total household expenses, no matter whether the family has children or not. For instance, a comparison of the total expenses of a couple without children earning $20,000 with those of a couple with a child and earning the same salary could lead us to believe that no additional costs arise from having a child since both households spend all their income in any case. What this actually means is that when a couple has a child or children, a reallocation process takes place at the level of the family budget.

Hence, in order to get around the problem of income reallocation, total child-related expenses have to be estimated in an indirect manner. Nine basic needs have thus been identified as essential: food, lodging, communications, housekeeping, personal care, clothing, furniture, transportation and recreation. However, identifying these so-called essential needs only serves to determine the percentage of expenses for essential needs incurred according to the number of family members.

More concretely, in the first place, expenses incurred to cover these nine essential needs were compiled by type of family (with child or children and without children); in the second place, the model compares, for each income bracket, expenses for essential needs incurred by families without children with those of families with one, two or three children. In this way, it is possible to determine the percentage of essential expenditures allocated to child-related spending.

For example, if a family without children spends $17,000 to cover essential needs and a family with one child spends $20,000 for these same needs, total expenditures for essential needs allocated to child-related expenses can be pegged at 15% ($3,000/$20,000).

In the third place, the percentage of total family expenditures covering children’s essential needs is then applied to family expenses as a whole. This is how the percentage of total family expenditures allocated to child-related expenses has been determined.

For instance, if 15% of total family expenditures earmarked to cover essential needs is allocated to child-related expenses and if total family expenditures are $30,000 ($20,000 for essential needs and $10,000 for other needs), the amount established for child-related expenses is thus $4,500 (i.e. 15% of $30,000).

Using this method of calculating basic support contributions, it is possible to include expenses incurred in order to cover all the needs of the child or children, above and beyond such essential needs as education, transportation and savings.

Lastly, the basic parental support contributions thus established correspond to the average expenses incurred by families to cover all of their children’s needs, according to the family income bracket and the number of children in question.[21]

This basic parental contribution becomes the first element in the process of determining support payments, a “basis for discussion”[22] that, it should be recalled, represents a step toward ensuring that the needs of the children are met to the extent of the parents’ ability to pay, as stipulated in article587.1 of the Civil Code of Québec.

The “binding force” of the basic parental support contribution obtained by referring to the table is, however, not as restrictive as it would seem given the other provisions within the model that authorize the presiding judge to rectify a situation based on the evidence at hand. In such cases, the support contribution may be increased by taking into account special expenses (Line 405), undue hardship (the judge has certain discretionary powers in this regard) or the parties’ respective assets. We should also recall that parents are always free to agree upon a different level of support from that determined by applying the model, in accordance with article587.3 of the Civil Code of Québec.

Article587 states the following general rule: “In awarding support, account is taken of the needs and means of the parties.…” This fundamental principle represents absolutely nothing new.

However, as of May 1, 1997, article587.1 establishes a second general rule applicable to children, a rule with a presumptive value: the basic support contribution determined by applying the model “is presumed to meet the needs of the child and to be in proportion to the means of the parents.”

However, the presumption is not irrefutable and can be reversed, since under articles587.1, 587.2 and 587.3 the presiding judge has certain limited discretionary powers to alter the level of support established in the table.

Article587.1, para.2, empowers the judge to change the basic support contribution in light of certain special expenses as outlined in the Regulation.

Article587.2, para.1, states a third general rule: the parent’s support obligation corresponds to his or her share of the basic parental contribution, increased, where applicable, in light of special expenses. This represents the second phase of the process: the basic support contribution plus special expenses, where applicable....

Thus, when all is said and done, support is determined by way of a four-stage procedure under the following headings:

1. Basic support contribution
2. Special needs
3. Undue hardship
4. The parents’ assets and the resources available to the child.[23]

The Process of Indexing the Table to Determine the Basic Parental Contribution

In order to maintain the presumption that the support contributions established in the table continue to correspond over time to the ongoing needs of the child and are in proportion to the means of the parents, a mechanism was needed to ensure that the provisions remained realistic on a long-term basis. The mechanism ultimately chosen involved the annual indexation of the table, a procedure which has also made it possible to reduce the number of support variation applications since the level of support (with some exceptions) is automatically subject to indexation.

Section 12 of the Regulation stipulates that the amounts listed in the Table to Determine the Basic Parental Contribution are to be indexed, “by operation of law, on January 1 of each year, in accordance with the annual Pension Index established pursuant to section 119 of the Act respecting the Québec Pension Plan.” This guideline is based on article590, C.C.Q.

Up until now, the table has been indexed on three separate occasions, namely on January 1, 1998 (1.9%), January 1, 1999 (0.9%), and January 1, 2000 (1.6%).

Section 12 of the Regulation also includes a mechanism to correct the possible impact of indexation upon debtor parents, stipulating that the table is indexed annually “unless such indexing would result in bringing the annual basic parental contribution to more than half of the parents’ disposable income.”

LAW, REGULATION AND FORM

The Regulation respecting the determination of child support payments, section 12 and ScheduleII, Table to Determine the Basic Parental Contribution.

PROBLEM AREAS

The Follow-up Committee needs to examine the problem raised by the fact that the support contributions established in the table are subject to indexation while the basic deduction is not. Indeed, according to the feedback received by the Committee, the system of indexation has certain defects which may, in the future, make the Quebec model for the determination of child support payments completely unrealistic.

Furthermore, one party before the court detected an error of logic in Division4 of Part5, which neglects to take into account compensation for support payments in cases where a parent is granted sole custody of one or several children. The Committee has already pointed out the problem to the Minister of Justice and suggested a minor change to the form (see recommendation 2 of the recommendations made during the Committee’s mandate).

VARIATION OF THE CASE LAW

The reader is invited to consult the decision of the Quebec Court of Appeal related to this problem area (Droit de la Famille—3151 (C.A.)). The Court summarizes the model and refers particularly to the presumptive value of the basic parental contribution, as well as to the discretionary powers contained therein.

OBSERVATIONS

As already mentioned, the objectives of the model include ensuring that support payments are both adequate and predictable and that standards are established to facilitate and standardize the way support payments are calculated. The calculations used to determine the basic parental contribution contribute to the attaining of these objectives.

The data concerning support orders appearing in Chapter 4, Section 3.2.7, of the present report demonstrate that in 58% of cases the level of child support actually established is the same as the support payments provided in Part5; it is higher in 17% of cases and lower 25% of the time. These data obviously exclude cases involving child-related expenses.

Although in 75% of cases, the level of support actually obtained is the same as or higher than that established in Part5; it is important to take a closer look at the 316 cases (25%) where the level of support is lower than that determined by using one of the calculations in Part5 of the form (custody time).

Sixty-three percent of the 316 cases involve an agreement reached between the parties in accordance with Part7 of the form. In addition, Diagram 12 reveals that in 52% of cases, the level of support is reduced by less than 25%. The reasons for this discrepancy are clearly stated in 59% of all cases involving an agreement, and a number of the explanations provided correspond to the definition of undue hardship.

As has already been shown in tables 3 and 6 of Section 4, the combined incomes of separated or divorced parents with an average of 1.65 children are not that high, given that the median income has been established at $39,690 and the disposable median income at $24,443. A family break-up entails additional difficulties for both the parents and their children, particularly on a financial level. It certainly doesn’t lead to an increase in parental income: while expenditures increase, their respective incomes stay the same.

While the loss of the economies of scale that characterize the life of a couple is offset by the basic deduction, such is not the case for the additional expenses caused by the break-up (two rents, related expenses, etc.).

The combined gross income of both parents is under $45,000 in 59% of cases, and their disposable income is less than $45,000 in 79% of cases.

Nobody anticipates any problems in meeting the needs of the children of those rare parents who have a combined income of $100,000 or more.

Instead, the major challenge for the model, and especially for the table with its presumptive value, is situated at the level of that vast category of combined disposable incomes totalling $45,000 or less, representing 79% of all situations. It is obviously much more difficult for parents in this income bracket to meet their children’s needs than for those with a higher income. This being the case, it would seem that the table targets income brackets in an appropriate manner and awards levels of support in accordance with the basic principles of the model. The parental contributions established in the table optimize support for the needs of the children with due regard for the parents’ ability to pay.

Furthermore, the specific content of the table has been mentioned at a number of points in this report. The Committee has come to realize that many people mistakenly believe that only the nine essential needs are covered by the amounts provided in table, whereas the sums listed therein actually correspond to the average expenditures incurred by families to cover all the needs of their children, based on the parents’ income bracket and the number of children involved.

Hence, as has already been indicated, the table takes into account all the children’s needs. Nonetheless, there is still room to make allowances for the special needs of certain children by adding child-related expenses, where applicable.

Under the circumstances, the Regulation should perhaps be amended to include the above clarifications, although article587.1, C.C.Q., does seem clear enough as it now stands:

The basic parental contribution...is presumed to meet the needs of the child and to be in proportion to the means of the parents … [The level of support] may be increased having regard to certain expenses relating to the child… (Emphasis added)

Concerning the question of indexation, the Follow-up Committee decided to study a number of possible approaches in order to recommend the best possible solution to a problem that is addressed in a specific section of this chapter.

THE COMMITTEE RECOMMENDS THAT:

The Minister of Justice make it clear, in any manner she deems appropriate, perhaps including an amendment to the Regulation, that the basic parental contribution is meant to cover all the needs of the children (essential and non-essential), with the exception of child-related expenses as outlined in section 9 of the Regulation.

PART 4—LINE 403—CHILD CARE EXPENSES

CONTEXT

Section 9 of the Regulation outlines the child care expenses that may be recorded in the form.

Two types of child care expenses are covered by section 9:

A distinction must be made between two types of child care expenses: those incurred to meet the children’s needs and those covering the needs of the custodial parent. The first category may include expenditures for specific child-care services necessary to the child’s socialization (for instance, going to a daycare centre several days per week) or for certain special services (for example, those helping a handicapped child master certain skills).

The second category encompasses the most commonly encountered child care expenses, including those the custodial parent must incur in order to hold a job or receive training, or that arise from the state of his or her health.

In both cases, expenses thus incurred were not considered when the support determination table was established and as such should be added to the basic parental contribution, if a need is clearly demonstrated in this respect.[24]

Similarly:

The term child care expenses includes not only particular expenses dictated by the child’s special needs, but also expenses incurred by the custodial parent in order to maintain his or her job, undergo training or look after personal health problems.[25]

LAW, REGULATION AND FORM

The Civil Code of Québec, article 587.1, para. 1, and article587.2

The Regulation respecting the determination of child support payments, section 9

Child Support Determination Form, Line 403

PROBLEM AREAS

The Committee’s attention was drawn to certain problematic aspects of the form.

The first concerns the difficulty of determining the net expenses that result in certain tax benefits. Furthermore, a number of couples do not seem to understand that only net child care expenses should be recorded in the form. In spite of this difficulty, the feedback received by the Committee does not seem to suggest that this procedure should be scrapped. (It should be noted, moreover, that this way of proceeding is still required by the Quebec Superior Court, in FormIII, Statement of Income and Expenditures and Balance Sheet.)

The second difficulty arises from the impossibility of clearly distinguishing between expenses of the same nature incurred by each individual parent when they fill in the same lines (403, 404 and 405). (Consider, for example, the case of parents who share the cost of child care.) Simple changes to the form will remove these irritants rather easily. (See recommendation 9 of the recommendations made during the Committee’s mandate.)

A private citizen also suggested that a fixed amount be established for child care and post-secondary education expenses

VARIATION OF THE CASE LAW

The following court rulings address the issue of whether and how child care expenses should be included in the calculation of child support payments.

• Droit de la famille—2911, J.E. 98-906 (C.A.)
  (Indicating net child care expenses on the form)
• Droit de la famille—2717, J.E. 97-1521
  (Lodging expenses in a foster family)
• Droit de la famille—2881, 98 B.E.-117
  (Expenses for a day camp)
• Droit de la famille—2935, 98 B.E.-257
  (Child care expenses to allow a mother to have a break)

GENERAL OBSERVATIONS

General Observations Concerning Child-related Expenses

Thirty percent of the sample cases involve child-related expenses. As a rule, there are more contested decisions in this area (21%), as compared to the sample as a whole (16%). (See Chapter 4, Section 3.2.8, of this report.)

Furthermore, the expenses covered by lines 403, 404 and 405 are net expenses, in other words, related tax benefits have already been taken into account.[26] By establishing the distinct categories of child care, post-secondary education and special expenses, the lawmakers have made it possible for such expenses (which are above and beyond the expenditures for basic needs covered by the basic parental contribution) to be considered in light of the socio-economic benefits that they provide.

Of course, these benefits are determined not only by the specific situations but also by outside criteria that impose various choices and constraints upon the parents in question.

Let us examine, for instance, child care expenses that may only be claimed by the parent with the lower income. In one particularly bizarre scenario, a mother with a new spouse, even a common-law spouse (from the taxation standpoint) with a lower income than her own, will not herself be entitled to claim the tax benefits linked to child care expenses incurred for the children of whom she has custody. Instead, these benefits are attributed to her common-law spouse.

Such tax benefits may not be calculated using the disposable income of both parents, nor their gross income, given that they no longer form a couple; therefore only their new personal situation can actually be taken into account.

By choosing to make the above-mentioned stipulation, the lawmakers also recognized that all benefits arising from a specific deduction should serve to fully cover expenses related to child care, with any additional amounts to be shared by the parents.

The Committee endorses this approach.

Observations Concerning Child Care Expenses

Eighteen percent of all sample cases involve child care expenses averaging $2,251, with the median amount totalling $1,820. The average age of the children in question is 5.4 years old for families with one child, while for families with two children, the average age is 8.7 for the first child and 6.1 for the second.

A major problem with respect to child care expenses arises when the parties neglect to treat these costs as net expenses. It would therefore be useful to issue a reminder and provide more information in this regard.

THE COMMITTEE RECOMMENDS THAT:

• All recommendations made during their mandate be duly considered, especially recommendations 4 and 9.
• The user be given more information in the brochure accompanying the model about all child-related expenses and how to calculate net expenses.

PART 4—LINE 404—POST-SECONDARY EDUCATION EXPENSES

CONTEXT

All post-secondary education expenses are recorded at Line 404 of the form. This sum is then added to the basic annual contribution calculated according to the procedure also outlined in the form.

Post-secondary education expenses are defined in section 9 of the Regulation. The wording of this section is generally viewed as allowing for a broad interpretation of the expenses to be included at Line 404: “The wording of these provisions makes it possible, generally speaking, to cover expenses related to such studies.”[27]

In the same vein, Professor Goubau mentions that “...the definition covers expenses in the broadest sense of the term, including, ‘in particular,’ tuition fees, instructional material, transportation and even accommodation expenses, where applicable.”[28]

One of the fundamental criteria for determining the admissibility of post-secondary education expenses is, obviously, whether or not the child in question is in fact pursuing his or her studies. For instance, in a case cited in Droit de la Famille—3002, the judge refused to include the amount requested under post-secondary education expenses since the child was not pursuing such studies at that time. In the judge’s view, no party may be reimbursed for expenses incurred at an earlier date but never actually claimed:

With respect to the post-secondary education expenses totalling $4,016.92 claimed by the applicant in her Child Support Determination Form, these expenses are inadmissible since C. is no longer pursuing post-secondary studies. At issue here, in the main, are earlier expenses already covered by the applicant, for which she never made any previous claim.

Lastly, and still with respect to admissible expenses, the specific question of children of full age must be addressed. Since post-secondary education expenses generally affect children of full age, the model includes a few additional requirements in this regard:

However, since these costs usually concern children of at or over the age of majority, it will first be necessary to ensure that the aforementioned criteria for considering them as dependent upon their parents or upon a person designated in loco parentis are met and also to take into account the discretionary powers of the court to consider various factors before determining the level of support for these children.[29]

As a rule, the case law does indeed impose stricter requirements for children who have attained the age of majority, whereas minor children are usually treated in a more generous manner:

In light of the Regulation, in particular sections 1 and 2, it may be asserted that post-secondary education expenses involving a minor child will automatically be taken into account (provided, of course, that these expenditures are deemed reasonable, pursuant to article587.1, para.1, C.C.Q.). On the other hand, the requirements are stricter whenever a child at or above the age of majority is involved …[30]

LAW, REGULATION AND FORM

Civil Code of Québec, article587.1, para.1 and para.2, and article587.2

587.2

The support to be provided by a parent for his child is equal to that parent’s share of the basic parental contribution, increased, where applicable, having regard to specified expenses relating to the child.

The court may, however, increase or reduce the level of support if it is of the opinion that, in the special circumstances of the case, not doing so would entail undue hardship for one of the parents. Such hardship may be caused by, among other things, the costs involved in exercising visiting rights in respect of the child, obligations of support toward persons other than the child or reasonable debts incurred to meet family needs. The court may also increase or reduce the level of support if it is warranted by the value of either parent’s assets or the extent of the resources available to the child.(emphasis ours)

Regulation respecting the determination of child support payments, sections 1, 2 and 9.

Child Support Determination Form, Line 404.

PROBLEM AREAS

• See the problems raised by child care expenses in the section that addresses Line 403.
• The impact of loans and bursaries in determining post-secondary education expenses.

VARIATION OF THE CASE LAW

With respect to determining the level of support to be awarded to a child at or above the age of majority, the case law has, for a long period of time, taken into consideration a number of circumstances, including those outlined in section2 of the Regulation.

A variation of the case law pertaining to post-secondary education expenses demonstrates that these applications for support continue to be assessed on a case-by-case basis:

1. The income of the children who have attained the age of majority is to be taken into account when calculating levels of support, since these children must contribute to meeting their own needs by working or by way of loans and bursaries:

• Droit de la famille—2775, J.E. 987-1872
• Droit de la famille—2859, 98 B.E.-12
• Droit de la famille—2870, J.E. 98-265
• Droit de la famille—2942, J.E. 98-750

1. The expenses claimed must take parental resources into account:

   Droit de la famille—2850, J.E. 98-158

2. The student must be pursuing his or her post-secondary education when the level of support is determined, since previously incurred expenses may not be claimed:

   Droit de la famille—3002, J.E. 98-1230

Furthermore, under the circumstances, not every expenditure related to post-secondary studies may necessarily be added to the basic needs of the child. In fact, in a case cited in Droit de la Famille—2899 (J.E. 98-443), it was ruled that a percentage of the accommodation expenses were already included in the basic parental contribution, and thus that tuition fees and the cost of books would remain the only expenses to be fully covered.

OBSERVATIONS

Please refer to the general observations found in the section dealing with Line 403 with respect to child care expenses.

Post-secondary education expenses are included in only 4% of all sample cases. The average amount of such expenses is $2,309, while the median is $1,550; the average age of children from the same family is 17.5 years old for families with one child and 17.7 and 15 years old for two-child families. A higher percentage (25%) of decisions concerning post-secondary education expenses are contested than those in the sample as a whole(16%). Parents incurring post-secondary education and special expenses earn a much higher income than all other parents surveyed, as is demonstrated by the median income of $63,144 earned by this particular parent group.

Thus, in cases of divorce, the model can be applied to children at or above the age of majority who are pursuing full-time studies and are therefore unable to cover their own basic needs.

Nevertheless, given that these dependent children are at or above the age of majority, the model provides the court with the discretionary power to either fix the support payable at a different level (section 2 of the Regulation) or to increase or decrease the level of support based on the value of the parents’ assets and the resources available to the child.

The impact of loans and bursaries on the process of determining post-secondary education expenses needs to be examined, much as the determining of parental income was the focus of an earlier section of the report (dealing with Part2 of the form). Should these loans and bursaries be deducted in their entirety from the amount claimed for post-secondary education expenses? The Committee considers that there is every reason to answer in the affirmative.

It is well known that the expenses taken into account when determining loans and bursaries include, in particular, tuition fees, transportation costs and living expenses. Thus it stands to reason that any loans and bursaries received must be deducted from the total amount required to cover basic needs so that these needs are not covered twice (once by the model and a second time by the loans and bursaries). Nevertheless, it should be emphasized that in situations where the child’s needs are covered by the level of support provided in the table, along with a supplement for post-secondary education expenses, the amount represented by loans and bursaries must only be deducted from total expenses incurred and not from the total amount required to cover basic needs. Thus it would seem necessary to specify that any related subsidy, benefit, deduction or tax credit must be deducted from the level of support needed to cover post-secondary education expenses. The term “benefit” is a broad one, taking into account an entire range of resources. The Committee considers that loans and bursaries are, in fact, “benefits” and that this should be clearly stated in the Regulation.

THE COMMITTEE RECOMMENDS THAT:

• The recommendations made in the course of the mandate, in particular recommendations 4 and 9, be duly considered.
• Section 9 of the Regulation be amended so that the definition of post-secondary education expenses clearly indicates that such expenses are over and above those covered by any loans and bursaries for which the child might be eligible.

PART 4—LINE 405—SPECIAL EXPENSES

CONTEXT

As stipulated at Line 405 of the Child Support Determination Form, it is possible to include, when calculating the level of support, all special expenses incurred by each parent.

Section 9 of the Regulation defines these expenses as follows:

… annual expenses other than child care expenses and post-secondary education expenses, such as medical expenses, expenses for primary or secondary studies or for any other educational program and expenses related to extracurricular activities, where those expenses are linked to the needs required by the particular situation experienced by the child.

It would seem that the lawmakers, from the outset, intended “special expenses” to apply to exceptional cases, thus favouring a relatively restrictive approach with respect to including such expenses in the calculation of support payments. In other words, the term “special expenses” is used when referring to exceptional measures involving expenditures that would appear to exceed those already covered by the basic needs as established in the table.

The expression “particular situation,” as used here, reflects the intention that this concept be interpreted in a restrictive manner so as not to lead to an increase in the basic parental contribution, which takes into account expenses that might be qualified as “normal,” i.e. expenses already covered by the basic support contribution.

In fact, since the basic parental contribution already covers expenses related to education, extracurricular activities and recreation (expenses that vary according to parental income), it is incumbent upon the courts to assess the eligibility of the child’s need in light of his or her “particular situation,” i.e. circumstances that could justify the awarding of an additional sum.

Special expenses may include, in particular, registration fees for a costly private institution that the child was already attending when the parents separated or the concept may apply to cases where the necessity of attending such an institution was demonstrated when the application for support was filed. On the other hand, in my opinion, it would be difficult to justify increasing the basic parental contribution to cover, for example, the annual $200 fees related to attending a public institution, given that these expenses are already covered in the table since they are necessarily assumed by all parents with dependent children of school age.[31]

In the case law, as it currently stands, there seems to be at the very least a certain tendency to adopt this concept of special expenses. Thus, when referring to special expenses related to recreation, Justice Thibault, speaking for the Quebec Court of Appeal, made the following remarks:

As noted, the basic support contribution established in the Regulation respecting the determination of child support payments is meant to meet the following basic needs: food, lodging, communications, housekeeping, personal care, clothing, furniture, transportation and recreation. Thus, in principle, recreation activities are covered by the basic support contribution. Nevertheless, to the extent that expenses exceed those normally incurred for such activities, they constitute special expenses in accordance with the Regulation and may be added to the basic parental contribution.

In the case in point, the amount reserved for recreation exceeds the sum normally set aside for such purposes. In this regard, the data compiled by Statistics Canada concerning “Average Household Expenditures” are likely to guide the court in the exercise of its discretionary power. These data are “generally known”² and serve to highlight “the social situation in which decisions to award support are made.”³ According to Statistics Canada, approximately 5% of the average household budget is set aside for expenses related to recreation. If this average amount is applied to the needs of the children covered by the application for support, as stipulated in the Regulation, i.e. needs normally covered by the support contribution of both parties, and considering that recreation as an item includes all recreational activities (vacations, cinema, sports and entertainment, etc.), one can only conclude, as I have already noted, that the expenses claimed do in fact exceed the amount normally set aside for recreation.

Given the level of parental income and the fact that the parents will cover these expenses in proportion to their respective incomes, I am of the opinion that these expenses may reasonable be claimed.[32]

• ²Article 2808, C.C.Q.
• ³Moge v. Moge, [1992] 3 S.C.R. 813 at 874. See also L. (L.) v. F. (D.), REJB 99-10690.

Justice Goodwin, as cited in Droit de la Famille—2781, underlines the “special” nature of special expenses:

Justice Goodwin mentions in this regard that section 9 of the Regulation uses restrictive terminology “and that the phrase ‘needs required by the particular situation’ paves the way for dealing with ‘exceptional’ needs exceeding so-called normal expenses, since basic needs are already covered by the basic parental contribution.”

This decision underscores the fact that the new system for determining child support payments appreciably reduces the discretionary powers of the court in such matters. However, the court does agree, and quite rightly so, to include under special expenses a series of expenditures related to the participation of children in sports activities of a certain level, as well as serious training and education programs. One can only urge that such activities continue to be included in the court’s understanding of the expression “where those expenses are linked to the needs required by the particular situation experienced by the child,” as stated in section 9 of the Regulation. The evidence no doubt made it easier to reach such a conclusion in the case at hand, since the parties agreed to recognize the talents and excellent sports and academic achievements of their children, as well as to acknowledge that the children should continue to be encouraged in this direction.[33]

Method of Analyzing Special Expenses: A Two-Step Process

One of the key elements as concerns the concept of special expenses involves determining their eligibility. In this regard, the Quebec Court of Appeal has pointed out that there is a double limit to the eligibility of special expenses:

Article 587.1, para. 2, C.C.Q., and section 9 of the Regulation respecting the determination of child support payments impose a double limit upon the eligibility of special expenses: in the first place, they must be reasonable in light of the needs and means of the parents and, secondly, they must be linked to the needs of the child, given his or her particular situation.[34]

It should be noted that article587.1, para.2, of the Civil Code of Québec basically provides guidelines for the court responsible for assessing whether or not the expenses claimed are, in fact, reasonable:

The reasonable nature of the expenses being claimed must be assessed by the court. Thus, even in cases where the child’s need is demonstrated as being essential, the court may nevertheless decide that the expenses claimed are, in fact, excessive in light of the nature of the need and the parents’ ability to pay.

Let us look once again at the aforementioned example, that of a child who is attending a very costly private institution when the separation occurs. Now then, one could very well imagine situations arising where the parents are no longer able to cover these expenses, either due to the very fact of their being separated or for other reasons such as a decrease in their income. In such cases, a refusal to increase the basic parental contribution in light of the child’s special need may well be totally justified.

On the other hand, expenses related to the specific medical care required because of the state of the child’s health or those incurred to overcome a handicap or disability could serve to justify an increase in the basic parental contribution, even if such an increase may entail a certain degree of financial hardship for debtor parents. It should be recalled that one of the objectives of the Quebec model for the determination of child support payments is to ensure that the child’s needs are covered, especially those considered essential, before the non-essential needs of the parents are taken into account.[35]

The second guideline to be followed by the courts, i.e. that special expenses must be “linked to the needs required by the particular situation experienced by the child,” seems to impose an additional requirement, namely that of confirming the exceptional nature of the special expenses under variation:

A double limitation is in force when these expenses are being variationed. Firstly, like all additional expenses, they are evaluated to determine whether they are “reasonable considering the needs and means of the parents and children,” as outlined in article587.1, para. 2, C.C.Q., and explained above. Secondly, according to section 9 in fine of the Regulation, such special expenses must be “linked to the needs required by the particular situation experienced by the child.” The latter stipulation clearly represents an additional requirement, in other words, a stricter condition than the simple reasonable needs test outlined in article587.1, C.C.Q.Thus, “special expenses” cannot be invoked as a pretext for arguing that the basic contribution, as established by the table, is insufficient to cover ordinary needs. In our view, that would run counter to the procedure established in the rules for determining child support payments.[36]

Nevertheless, this stipulation only comes into play when the Regulation itself is being applied; it may no longer apply in cases where a judge exercises the discretionary power granted under article587.2 in fine:

However, in our view, this stricter requirement, resulting from the fact that the Regulation insists upon “needs required by the particular situation experienced by the child,” only applies within the framework of the Regulation itself, i.e. with respect to establishing child support payments using the Child Support Determination Form. In other words, this restriction is in force when assessing expenses that might be taken into account in order to determine support payments based on annual disposable income. On the other hand, this limitation should not normally come into play in cases where article587.2, C.C.Q., in fine is being applied, namely in situations where the court has concluded that the value of the assets of the debtor of support justifies an increase in the support contribution. Under such circumstances, the Civil Code, in fact, sets down no particular limitations, and the court must therefore refer to the concept of the child’s interests (article33, C.C.Q.) and needs and means (article587.1, C.C.Q.).[37]

With respect to the court’s decision to award a certain specific amount for extracurricular activities (Droit de la famille—2718), a jurist writes:

In our view, the term “special expenses,” as defined in section 9 of the Regulation, provides the court with the latitude to take into account, for instance, needs that are not covered by the basic support contribution or to consider the children’s standard of living whenever it awards levels of support that differ from the amounts established in the table. It will be interesting to see whether the courts interpret this concept in a liberal or a restrictive manner.[38]

LAW, REGULATION AND FORM

Civil Code of Québec, article 587.1, para. 2, and article587.2

Regulation respecting the determination of child support payments, section 9

Line 405 of the Child Support Determination Form

PROBLEM AREAS

• See the general problem outlined in the section pertaining to Line 403.
• One party before the court has proposed that additional expenses, such as those incurred for sports activities, not be considered when calculating basic support needs and that such costs be covered on a voluntary basis only. This person is of the opinion that these expenses could be used in an attempt to receive an excessively high level of support.
• One of the important problems raised by the concept of special expenses concerns how the term itself should actually be interpreted. Professor Goubau provides an excellent summary of the problem:[39]

  The question becomes even more problematic in cases involving extracurricular activities, sports or cultural activities, enrolment in a private school, or specific training programs. Two distinct trends may be noted with respect to such expenses: the first is to be rather “generous,” i.e. disposed to increasing the level of support; the second, on the contrary, involves emphasizing the exceptional or special nature of such expenses, reflecting a reluctance to deviate too quickly from the levels of support as established in the table. In the Quebec system, the problem arises from the fact that “special expenses,” as defined in section 9 of the Regulation, may only be taken into account if they “are linked to the needs required by the particular situation experienced by the child.” Is it enough, under such circumstances, to demonstrate, with respect to extracurricular activities for example, that any given aspect of the child’s situation in itself creates a need? Could an argument be made based on the fact that a first draft of the Regulation states that such expenses, in order to be considered, had to be “exceptional” as the Federal Child Support Guidelines stipulate? As concerns the Quebec system, it is in fact possible to conclude that “special expenses” are not necessarily “exceptional expenses.” Nevertheless, Quebec’s standards are not so watered down that the only criterion to be applied is simply the child’s interests or the test of means and needs. For the Regulation does indeed stipulate that these expenses must arise from a “particular situation.” This expression necessarily refers to a situation that “deviates from the norm,” with the norm in this case represented by the amounts established in the table. And this is precisely where part of the problem lies: insofar, for example, as many extracurricular activities may also be recreational activities, they are already included in the basic needs covered by the support contributions provided in the table. The validity of this argument is reinforced by the fact that these contributions increase along with parental income. Thus the amounts established in the table do necessarily cover more than essential needs. The higher the parental income, the more likely it is that the support contribution provided by the table will cover basic needs such as recreation, transportation, etc.

VARIATION OF THE CASE LAW

As we have seen at the beginning of this section, the Quebec Court of Appeal in Droit de la famille—3228 has outlined the general criteria respecting special expenses by emphasizing that article587.1, para. 2, C.C.Q., and section 9 of the Regulation impose a double restriction with respect to the eligibility of special expenses. On the one hand, these expenses must be reasonable in light of the parents’ means and needs and, on the other, they must be linked to the needs required by the particular situation of the child. (Droit de la famille—3228).

In a ruling that appears in Droit de la famille—3038, Justice Allard defines the special expenses referred to in section 9 of the Regulation as expenses incurred in order to cover needs not already covered by the basic parental contribution, i.e. those resulting from a particular situation. This seems to be the definition that is generally applied by the courts.

Expenses usually claimed under section 9 include orthodontic, dental, optometrist and medication costs, private school expenses, and costs related to extracurricular activities (music lessons, ballet lessons, etc.) and to sports. As a rule, dental and orthodontic costs have been deemed ineligible, since they are already covered by the basic parental contribution, whereas the opposite has been determined with respect to medical expenses.

Some rulings have stipulated that only private school tuition fees constitute special expenses, with other costs being covered by the basic parental contribution, whereas other court decisions have taken into account all expenses related to attending a private school, i.e. the cost of instructional material, books, uniforms, etc. Furthermore, in all decisions upholding the right to include such expenses in calculations of support contributions, the court has looked at both the parents’ resources and whether or not it was in fact necessary for the child to attend a private school. In one case, these expenses were ruled inadmissible because one of the parents had not been consulted.

With respect to extracurricular and sports activities, some judges have ruled that expenses related to these activities are already included in the basic parental contribution, whereas others have found that they indeed constituted special expenses. In the majority of decisions allowing such costs to be claimed as special expenses, the aptitudes, talents and/or interests of the child were examined in order to determine whether this child was in a particular situation as compared to other children. Such cases include, for example, a child who participates in major competitions or who wishes to pursue a career in a special field. Lastly, even arguments based on the fact that the parents initiated the activity or that the child has been doing it for a long time have been accepted.

OBSERVATIONS

See the general observations respecting child care expenses in the section pertaining to Line 403.

Only 6% of sample cases involve special expenses, representing an average amount of $1,478 and a median of $980. In such cases, the average age of children from the same family is 11.5years old for one-child families and 13.6 and 10.8 years old respectively, for families with two children. As is the case for post-secondary education expenses, the percentage of contested decisions involving special expenses is higher (26%) than for all sample cases (16%). The income of parents in cases involving post-secondary education expenses and special expenses (amedian income of $63,144) is much higher than for the sample as a whole.

The lawyers and mediators surveyed indicate that determining special expenses represents one of the most problematic aspects of the model. A number of these respondents point out that the term “special expenses” should be more clearly defined.

It would seem that the concept is being clarified within the case law and among legal authorities:

By what criterion might one conclude, on the one hand, that a need is not already covered in the table, and, on the other, that the level of support should be increased in light of this need?

• the extraordinary nature of the activity?
• the special or exceptional aptitudes of the child?¹¹>
• the financial resources of the parents?
• the choices regarding schooling made by the parents before the break-up?¹²
• the exorbitant cost of the activity?
• the prior living standards of the child?
• the fact that this specific expense exceeds “what parents of the same income would normally spend for the purpose in question?”¹³
  
  

• ¹¹ Example: Droit de la famille—3155, J.E. 98-2289 (C.S.).
• ¹² Example: Droit de la famille—3210, J.E. 99-274 (C.S.).
• ¹³ This is the solution recently proposed by the Standing Senate Committee on Social Affairs, Science and Technology in its report Federal Child Support Guidelines.

No matter how this question is ultimately answered, it should, in our view, at the very least take the following elements into account:

• The presumptive nature of the system for determining support payments (the amounts provided in the table are presumed to cover basic needs and to take parental income into account);
• Even if special expenses need not be “exceptional,” they must necessarily cover costs other than those included in the table;
• “Special expenses” cannot be determined by using the criterion of parental income since the latter is taken into account in the second stage, during verification of the reasonable nature of the special expenses, under article587.1 of the Civil Code of Québec. Consequently a child’s need does not become “special” simply as a result of parental income.

These various findings lead to the following conclusion: First of all, it must be demonstrated that a child has a special need that is clearly different from the needs that parents of the same socio-economic bracket usually have to cover. Then, it remains to be seen whether or not there are sufficient “resources” at hand (including all assets) to cover this sort of expenditure. The more this expenditure serves to meet one of the child’s essential needs, the more the aforementioned resources should be used to cover it.[40] (Emphasis added)

In the Committee’s view, the elements highlighted in the above text serve to clearly define the concept of “special expenses” as it should be understood within the framework of the model.

It is obvious that the term “special expenses,” like most of the concepts in the model that are open to judicial appraisal and discretion, gives rise to a great many questions. Does the body of case law on the subject suggest a rather restrictive or a more liberal interpretation of the concept? When considering the statistics, in particular the fact that these expenses have been applied in only 6% of all cases, one can only conclude that, as a general rule, the concept has been judiciously applied. Would it be preferable to tighten the definition still further and in so doing reduce the latitude exercised by the courts, a discretionary power that, we feel, must be maintained in order to ensure that adjustments, which are both necessary and rather difficult to frame, can be made? Such an operation involves risks that must be examined very carefully indeed. It should be recalled that an earlier draft of the Regulation defined special expenses as being of an exceptional nature. However, the term “exceptional nature” began to seem much too restrictive under civil law; thus, after feedback from interested parties was taken into account, the lawmakers decided to introduce the current concept of special expenses. Although the wording of this concept does not lend itself to a broad interpretation, it is certainly less restrictive than it was during its draft stages. Which wording should be used to reclarify the concept? In the current context, we feel that yet another change may very well lead to new interpretations that would take several years to stabilize. The model is still in its fledgling phase, having been in place for only three years, and in the eyes of the Committee, the process is unfolding as it should, with the concept of special expenses becoming more and more precise. It is our view that nothing in the legal doctrine, the case law or the latest statistical data can justify a change in wording, nor help in determining the nature of the change or how it is to be applied. On the other hand, judicial tendencies are taking shape and beginning to stabilize, revealing that the model is now much more clearly understood than it was at the outset and that concepts such as the basic contribution, as established in the table and applied in conjunction with the two-step process for determining special expenses, have been mastered.

Developments regarding these expenses should, however, be closely monitored in order to determine whether or how to clarify the concept of special expenses.

THE COMMITTEE RECOMMENDS THAT:

• Careful consideration be given to recommendations made during the course of its mandate, especially recommendations 4 and 9.
• The current wording of the guidelines pertaining to special expenses be maintained.
• The Ministère de la Justice continue to examine developments related to special expenses, especially current case law, in order to determine whether or how to further clarify this concept.

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