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 7—AGREEMENT BETWEEN PARENTS

CONTEXT

The parents’ right to agree upon different ways of implementing their support obligations has in no way been compromised by the setting up of the model. In fact, parental leeway has been preserved in the Quebec model and it may even be seen as a means of reaching settlements:

In accordance with the rules of civil law, in spite of their separation, parents retain the right to supervise the maintenance and education of their children (article 605, C.C.Q.). The adoption of the model was in no way intended as a means of eliminating this right and preventing the parents from reaching an agreement concerning the expenses they would normally cover in relation to certain needs of the child, just as they did when they were together, based on personal criteria, and in light of their own priorities, way of life, culture, etc.

Bill 68 preserves the parents’ freedom to reach a private agreement providing for a level of child support that departs from the amounts calculated by applying the guidelines of the Regulation so long as they clearly state in their agreement the reasons for such a departure (article825.14, C.C.P., and Part 7 of the form). However, the court has the obligation to ensure that the amounts thus agreed upon adequately provide for the needs of the child (article587.3, C.C.Q.).

The adoption of the model for the determination of child support payments should encourage parents to reach agreements, not only by bringing to their attention a set of objective rules for agreeing upon a level of support, but also by making available to them the tools needed to reach this goal, namely the Child Support Determination Form and the Table to Determine the Basic Parental Contribution.[47]

LAW, REGULATION AND FORM

Civil Code of Québec

587.3

Parents may make a private agreement stipulating a level of child support that departs from the level which would be required to be provided under the rules for the determination of child support payments, subject to the court being satisfied that the needs of the child are adequately provided for.

605.

Whether custody is entrusted to one of the parents or to a third person, and whatever the reasons may be, the father and mother retain the right to supervise the maintenance and education of the children, and are bound to contribute thereto in proportion to their means.

Code of Civil Procedure

825.14

Parents who make a private agreement stipulating a level of child support that departs from the level of support which would be required to be provided under the rules for the determination of child support payments must state precisely, in their agreement, the reasons for such departure.

Likewise, any judgment granting a level of child support which is at variance with a private agreement between the parents or, in the case of a contested application, with the information stated in a form filed by the parents, must state precisely the reasons for such variance and include references to the relevant items of the prescribed form.

Child Support Determination Form, Part 7

Part 7—Agreement between parents

• 700—Annual support payable
• 701—Annual support payable according to agreement between parents
• 702—Difference between the 2 amounts (line 700—line 701)
• 703—State precisely the reasons for that difference

PROBLEM AREAS

According to the data gathered for this report, the courts have ruled on a certain number of cases involving agreements where the level of support departs from the amount established by applying the model and where the reasons for such a departure appear neither in the agreement nor in Part7 of the form.

VARIATION OF THE CASE LAW

Droit de la famille—2975, J.E. 98-955

In its decision, the court mentions that the obligation to provide support is part of public policy and cannot be renounced: “Neither parent may limit or renounce child support rights, which are based on public policy.”

Droit de la famille—3112 [1998] R.D.F. 675 (C.S.), J.E. 98-1994

In this case, the judge ruled that, notwithstanding an agreement between the parties, the court may not, without a valid reason, establish child support payments that depart from the amount provided in the Table to Determine the Basic Parental Contribution, the latter amount being mandatory under the Regulation respecting the determination of child support payments.

In the judge’s view, the explanation provided was not sufficient, in light of article825.14 of the Code of Civil Procedure, which stipulates that the parties must state precisely, in their agreement, the reasons for any departure.

Support payments of $300 per month depart from the norms established under article825.8, C.C.P.According to the Court’s calculations, the father should provide the mother with support payments of $335.30 per month for N. (64.27% x $6,260 ÷ 12). When the parties’ lawyer was asked to explain the discrepancy between the level of support established by her clients and that determined in the table, she replied that “the parties jointly decided that support payments of $300 would be sufficient since the father had covered the lion’s share of expenses related to the family home during the entire period of their separation.”

The Court does not believe that this explanation provides sufficient grounds for establishing support payments that depart from the mandatory level of support provided by the table in accordance with the Regulation respecting the determination of child support payments. In fact, article825.14, C.C.P. stipulates that the Court may not, without a valid reason, grant a level of child support which is at variance with the amount provided in the table, notwithstanding a private agreement between the parents.

OBSERVATIONS

The brief presented to Cabinet on October 25, 1996, contains the following observations:

2.8 Assessment of the Model
The model itself stipulates that the Minister of Justice must table a report on the implementation of the model within a period of three years.

To be in a position to begin the required assessment, the model also stipulates that a decision ordering a parent to provide support that differs from his or her share of the basic support contribution must clearly state the reasons for such a difference.

Articles 587.3, C.C.Q., and 825.14, C.C.P., give parents a certain flexibility within a judicial framework defined by the court’s obligation to ensure that the agreed-upon level of support is sufficient to meet the needs of the child or children in question. It is therefore necessary to clearly state the reasons for any departure from the model, and this obligation, as stipulated in article825.14, C.C.P., applies to both increases and decreases in the basic parental contribution. The reasons have to be specified so that both parties might understand why they have departed from the model and so that the court might verify the agreement in accordance with article 825.14, C.C.P.A clear understanding of these reasons will also prove useful if the level of support should ever need to be revised. Lastly, an analysis of these departures contributes to the assessment of the model itself. In this regard, Chapter 4, Section 3.2.7, of this report points out that in 316 cases in the sample (25%), support payments are lower than the amounts determined in Part 5 of the form when there are no child-related expenses. Sixty-three percent (198) of these cases involve agreements reached by applying Part 7 of the form. However, even though the law is categorical in this regard, the Committee has observed that 41% of the most recent orders establishing a lower level of support were submitted without reasons for the departure being recorded (it sometimes happens that the reasons are stated during the hearing). Based on these results, we are unable to carry out as thorough an assessment as we would like concerning whether or not the amounts provided in the table are in fact appropriate.

THE COMMITTEE RECOMMENDS THAT:

• A thorough examination be made of recommendation 10, proposed during the Committee’s mandate.
• The Ministère de la Justice remind judges and special clerks, who respectively ratify and confirm agreements, that they must ensure in all cases that the reasons for any departure are clearly stated in the agreement or in Part7 of the form.
• Article 825.14, C.C.P., be amended so as to clearly stipulate that the reasons for any departure must be recorded either in the agreement or in the form.

PART 8—STATEMENT OF EACH PARENT’S ASSETS AND LIABILITIES

CONTEXT

Part 8 of the form stipulates that each party must list his or her assets and liabilities. This section of the form borrows, nearly verbatim, the information provided in Form III of the Rules of practice of the Superior Court of Quebec in family matters.

A consideration of the parties’ assets and liabilities has always been part of the process of determining support payments. The new rules outlined in the model recognize the importance of this information, which is, moreover, an integral part of the Child Support Determination Form.

Above and beyond the concept of undue hardship (concerning which the burden of proof is upon the parent who wishes to invoke it), Bill 68 also gives judges the power to increase or reduce the level of support pursuant to the Regulation by taking into account the value of a given parent’s assets.

This measure is very important since the model stipulates that the level of support must be based on the incomes of both parents and not the total value of their resources. Of course, it could very well happen that one parent has very little income (or assets that generate income from income, i.e. rental or investment income), but nonetheless has substantial assets (real property, works of art, a significant amount of capital, various luxury items, etc.). Once the existence of these assets has been established, the court could then take them into account when determining support contributions. In this regard, the Child Support Determination Form stipulates that both parents must provide a statement of their assets and liabilities.[48]

LAW, REGULATION AND FORM

Civil Code of Québec

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 added)

Code of Civil Procedure, articles 825.9 to 825.12

825.12

If the information stated in the prescribed form or prescribed documents is contested or incomplete or if the court considers it necessary, it may make good the deficiency and, for instance, establish the income of a parent. In establishing the income of a parent, the court may have regard, among other things, to the assets held by the parent and attribute to those assets the production of such income as it sees fit.

Child Support Determination Form, Part8.

PROBLEM AREAS

Does Part 8 of the form always have to be completed? Some interveners have asked whether it is appropriate for everyone in every case to fill in Part8. Nevertheless, before the model was established, Form 2 of the Rules of practice of the Superior Court of Quebec in family matters (the current Form III), always had to be completed. Why should things be different today?

VARIATION OF THE CASE LAW

In the following cases, the court departed from the general rules for determining support payments by taking into account the value of the parties’ assets.

• Droit de la famille—3139, J.E. 98-2132 (C.A.)
• Droit de la famille—3397, J.E. 99-1811
• Droit de la famille—3171, J.E. 98-2379

OBSERVATIONS

Parties before the court have an obligation to complete Part 8 of the form even though there is no clear indication therein as to whether or not this information may be used to increase or decrease the level of support. The form contains information declared under oath, and this information is part of the evidence provided. Article825.9, C.C.P., clearly states that “No application relating to child support may be heard unless it is accompanied by the form … duly completed … and by the prescribed documents.”

Part 8 must also be completed in order that both parties might be apprised of all the elements likely to influence the determination of child support payments. It is as important for everyone concerned to be informed about the assets and liabilities of each party as it is to provide the documents required to establish the parents’ income under Part 2 of the form. How can a judge or any other interested party possible know whether or not to apply article 825.12, C.C.P., in order to establish the income of a parent based on the value of his or her assets if Part 8 is not duly completed? The same question arises in light of the last sentence of article587.2, C.C.Q., which reads as follows: “The court may also increase or reduce the level of support if it is warranted by the value of either parent’s assets….”

Under the rules, applicants are required to state their assets and liabilities in Part 8 of the form. If no such information is provided, one or the other party, or the court, is entitled to demand that this part of the form be duly completed. Committee members feel that Part 8 of the form must be retained and that interested parties and practitioners should be reminded of the obligation to complete it. The Committee has recommended during its mandate that changes be made to the design of Part 8 in order to make it more user friendly.

THE COMMITTEE RECOMMENDS THAT:

• Careful attention be paid to changes proposed during its mandate with respect to Part 9 of the draft form as it appears in Appendix 10.
• The Ministère de la Justice remind all parties and interveners of the obligation to complete all sections of the Child Support Determination Form.

PROBLEMS RAISED BY INDEXATION

CONTEXT

Indexation is one of the problem areas that have generated the most discussion among members of the Follow-up Committee. At issue here, in the main, are two basic components of the model, namely the Table to Determine the Basic Parental Contribution (Schedule II of the Regulation) and the $9,000 basic deduction established at Line 301 of the Child Support Determination Form.

In addition, the Committee looked at the possibility of indexing the income brackets listed in the table.

It is important to specify from the outset that the entire indexation problem exists because only the support contributions provided in the table are actually indexed and not the other parameters associated with these levels of support.

The Quebec model for the determination of child support payments in fact establishes a procedure whereby the amounts listed in the table are indexed on an annual basis, all within the framework of the Regulation respecting the determination of child support payments.

Section 12 of the Regulation states that the “amounts in the table in Schedule II shall be indexed by operation of law as of January 1 of each year.”

This process was implemented, among other reasons, in order to bring the table in line with the automatic indexing of support payments as outlined in article 590, C.C.Q. The amounts in the table are indexed at the same rate. Since support payments are themselves indexed, it must be understood that indexing the sums listed in the table necessarily leads to a reduction in requests for revision, because otherwise, at a certain point, support payments would have exceeded the amounts provided in the table.

To date, the table has been indexed three times, on January 1, 1998 (1.9%), January 1, 1999 (0.9%) and January 1, 2000 (1.6%).

It should be emphasized, moreover, that the Table to Determine the Basic Parental Contribution is divided not only according to the number of children included in the support application, but also according to the parents’ disposable income brackets, which vary from a minimum of $1 to a maximum of $200,000, with cases exceeding the latter amount being addressed in section 10 of the Regulation.

Section 12 of the Regulation also provides a mechanism to compensate for any impact indexation may have upon the parents, since it stipulates that the table will be indexed annually “unless such indexing would result in bringing the annual basic parental contribution to more than half of the parents’ disposable income.”

Indexation has also caused problems related to the basic deduction (Line 301). This deduction has been set at $9,000, based on certain guidelines already mentioned in the section pertaining to Part 3. Nonetheless, as concerns whether or how to index the basic deduction, it should be emphasized that, as opposed to the table, the model provides no mechanism to ensure an on-going indexation of this amount. Hence the basic deduction remains unchanged, whereas the sums listed in the table are indexed on an annual basis.

LAW, REGULATION AND FORM

Regulation respecting the determination of child support payments

• 10. The percentage in the table in Schedule II for the part of the parents’ disposable income exceeding $200,000 is given for information purposes only; therefore, the Court may, if it deems it appropriate, fix for that part of the disposable income an amount different from the amount that would be obtained using that percentage.
• 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 parents’ disposable income.

Where an indexed amount in 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.

PROBLEM AREAS

As already indicated in the discussion of Line 401, the Committee realized, in the course of its deliberations, that indexation has caused problems when the model is applied, in particular with respect to the model’s fairness, notwithstanding the fact that the levels of support provided in the table have been indexed on an on-going basis.

The second part of the problem is centred around the basic deduction itself. Here once again, the main difficulty lies in ensuring that the model is applied on a fair and equal basis over time. In this regard, a number of groups and individuals have raised questions as to whether the basic deduction should in fact remain unchanged. It seems illogical to maintain the same basic deduction while the cost of living tends to increase from one year to the next.

According to one party before the court, the fact that the table is indexed on an annual basis means that support payments increase every year in conjunction with the cost of living, even if the debtor’s salary remains the same. Furthermore, this same person points out that due to the indexation of the table, the level of support increases twofold whenever one of the parents obtains a raise in salary: once due to the raise itself and a second time in accordance with the rising cost of living. He therefore argues that the table should not be indexed, but that support payments should instead be adjusted annually in light of any changes in the parties’ salaries.

Out of a concern for consistency, the Committee chose to study, at one and the same time, all issues involving the indexation of elements of the model.

VARIATION OF THE CASE LAW

The Committee did not variation any decisions pertaining to this issue.

OBSERVATIONS

Predictible Child support payments should have the effect of ensuring that families in similar circumstances receive a similar level of support. This is the objective both when support contributions are first determined and for a number of years thereafter. The indexation problem is directly linked to the difficulty of maintaining this objective over time. In this context, the provision in the law stipulating that the model must be evaluated within three years of its enactment, with respect to whether or not it has reached its objectives, takes on its full meaning.

General Observations

Committee members believe that problems created by the indexation of the Table to Determine the Basic Parental Contribution may, even on a medium-term basis, serve to discredit the model for the determination of child support payments by undermining its credibility and by creating a gap between the reality experienced by families undergoing a break-up and the level of support determined by applying the model.

Professor Dominique Goubau observes, with respect to the system of indexing the table, that:

It is nonetheless anticipated that the cumulative effect of successive indexations can only result in the level of support exceeding 50% of disposable income. In reality, this represents a somewhat awkward consequence of a difficulty inherent in the automatic indexation of the table, i.e. that such a system is destined, one day or another, to become totally inoperative, since the amounts as indexed will tend to diverge, gradually, over time, from the reality of family expenditures … In the long run, such a divergence would make the system inequitable.[49]

The relevant guidelines in this regard are provided in article 587.1, para. 1, of the Civil Code of Québec:

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.

If the argument noted above should be confirmed, there is every reason to fear that the presumption established in article 587.1, C.C.Q. (one of the centrepieces of the Quebec model for determination of child support payments) is increasingly unlikely to correspond to reality and that the model, as it is applied, will no longer meet the needs of children. Instead these needs will be substantially exceeded by the sums provided. If the problem is not addressed, it will also affect the fundamental purpose of the model as stated in article587.1, C.C.Q., namely to “meet the needs of the child and to be in proportion to the means of the parents …,” with support payments determined according to the needs of the child and the income of the parents. Generally speaking, the objectives and basic principles of the model indicate that all available resources should be taken into account in order to meet the needs of the child effectively, not excessively.

A similar problem arises with respect to the basic deduction. There is a real risk that the model, as it is applied, will lead to a situation of inequity on a medium-term basis (or at least appear to do so) since this amount remains the same whereas the payer’s support obligations are increasing every year. It should also be considered that the overall cost of living continues to rise and that, on a more or less long-term basis, a basic deduction that remains unchanged might become less and less relevant to the everyday reality of Quebec families. One must not forget that this deduction reflects a basic principle of the model, namely to give priority to the paying parent’s support obligation with respect to expenditures exceeding his or her own essential needs. In the case of low-income parents, the problem also affects another basic principle, i.e. to maintain as far as possible the incentive for low-income parents to meet their support obligations to their children.

Various Scenarios Considered

Over the course of its deliberations, the Follow-up Committee developed a number of scenarios, subjected them to further study and then, where applicable, formulated appropriate recommendations, adopting a position on the indexation of various elements of the model.

The Committee decided to study the question of whether to index the table and the basic deduction together at the same time, in order to address as many situations as possible and to develop a more comprehensive perspective. The Committee also took the ancillary step of looking at the possibility of indexing the income brackets appearing in the Table to Determine the Basic Parental Contribution. The following scenarios were considered:

1. Indexation of the table but not the basic deduction (status quo)
2. Non-indexation of the table and non-indexation of the basic deduction
3. Non-indexation of the table but indexation of the basic deduction
4. Indexation of the table and of the basic deduction
5. Indexation of the table, the basic deduction and the parents’ disposable income brackets

These scenarios are described in more detail in Appendix 15.

Analysis of the Scenarios

All the scenarios studied by the Committee projected results for a period of 10 years, that is, the average period during which support is provided in the province of Quebec. Each scenario included a comparison of its support figures with the amounts indexed according to article590, C.C.Q., with future indexation levels obviously pegged at a rate of two percent per year.

The first four scenarios clearly revealed a discrepancy—one that was at times very pronounced—between the support contributions appearing in the scenarios and those that are first awarded and are then subject to indexation.

The ideal objective to be pursued is a formula to ensure, on an on-going basis, that the amount appearing in the table for a given situation is the same as the level of support awarded in previous years and then indexed in accordance with the Civil Code. Practically speaking, only Scenario5 (indexation of the table, the basic deduction and the parents’ disposable income brackets) yields mathematically identical results. An analysis of its components has led to the following observations:

1. Maintaining the indexation of the table, i.e. indexing each basic parental contribution appearing therein, respects one fundamental objective, namely establishing as a general principle that the cost of meeting needs increases on an on-going basis. As already mentioned, this indexation brings the basic parental contribution in line with the mandatory indexation of the support obligation pursuant to article590, C.C.Q.

2. The indexation of the basic $9,000 deduction would reflect a recognition of the following economic principle: if the cost of meeting the children’s needs constantly increases, so too does the cost of meeting the parents’. The Committee endorses the principle that underlies the basic deduction, namely that parents should be granted a minimum income to cover their own essential needs before they are required to provide support for their children. With this approach, economic equity is ensured.

3. Mathematical equality cannot be reached without indexing disposable income brackets (see Appendix 15, Scenario5). The reasoning behind this assertion is as follows: In a situation where income only increases in step with inflation, disposable income will not necessarily increase at all since basic costs are also subject to the same pattern of inflation. Disposable income begins to increase only when absolute growth in income exceeds the rate of inflation. The indexing of disposable income brackets is another tool for ensuring this economic reality.

No problems arise from choosing to maintain the rate of indexation provided by the Regulation: doing so has been common practice since the coming into force of article590, C.C.Q.The Committee therefore recommends that this practice be continued.

As a consequence, the Follow-up Committee recommends that the Regulation be amended to incorporate Scenario5, and thus to provide for the indexation of the amounts listed in the table, the basic deduction appearing at Line 301 of the form, and the parents’ disposable income brackets included in the table.

Moreover, we should recall the importance of the recommendation appearing in Part 2 of this chapter: “that the Ministère de la Justice develop mechanisms to provide for an on-going variation of the model.” The whole problem area of indexation should be covered by this variation procedure.

THE COMMITTEE RECOMMENDS THAT:

The Regulation be amended to provide for the indexation of the basic deduction appearing at Line 301 of the form and the parents’ disposable income brackets included in the table, as well as the support contributions listed in the table.

THE CONCEPT OF “UNDUE HARDSHIP”

CONTEXT

The Quebec model for the determination of child support payments includes various means by which the result obtained through applying the method of calculation provided in the form may be altered. The model establishes exception mechanisms so it can be adapted to specific situations. One of these important mechanisms, representing an exception to strictly applying the results generated by the form, is the concept of “undue hardship.”

In fact, notwithstanding the support contributions generated by applying the rules in the Child Support Determination Form to the letter, it is still possible for the court to depart from these levels of support in light of undue hardship experienced by either of the parents.

In this regard, the court has been granted discretionary power under article 587.2, para.2, of the Civil Code of Québec. The latitude described therein constitutes, as it were, the final step in adjusting support contributions:

By using the information provided in the form and the table, the judge obtains the amount normally owed by each parent. Undue hardship must be clearly demonstrated before the court will depart from the amount of support obtained by using the form. Article587.2, para.2, C.C.Q., contains a non-exhaustive list of factors that might cause undue hardship: “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.” It may be noted that family needs are the root cause of each of these difficulties, and that an ejusdem generis interpretation would suggest that the lawmakers intended undue hardship to apply only in areas related to the family context.

This concept of undue hardship represents an exception with respect to the model’s guidelines. Given the objectives of the legislation, we believe that the concept will be interpreted in a restrictive manner, especially in cases where it will serve to reduce the level of child support.[50]

This same point is made by the Quebec Court of Appeal in Droit de la famille—3151:

The third phase of the process begins with the application of article587.2, para. 2, C.C.Q. The judge of the first instance is granted additional latitude to raise or lower the result obtained, according to whether he or she deems that maintaining this result will, under the circumstances, entail undue hardship for either the payer or the recipient.[51]

With respect to the discretionary nature of this provision, it should be added that the court will examine the entire set of circumstances before departing from the amount of support obtained by using the form. Consequently, the sole fact of a plaintiff’s being in a situation described in article587.2, para.2, does not, objectively speaking, provide sufficient grounds to convince a judge that the parent in question is in a situation of undue hardship.[52] Rather, the presiding judge is meant to assess, on a subjective basis, each situation submitted, in order to determine whether or not the parent is indeed experiencing undue hardship.

It must be added that the list of situations that are potentially open to the application of undue hardship, as outlined in article587, is not exhaustive. Here, once again, the court has the discretionary power to decide, based on the entire set of circumstances, whether a parent is in fact facing undue hardship.

With respect to the assessment that the court must make of the circumstances that may cause undue hardship, it should also be noted that the Quebec model for the determination of child support payments does not provide for an objective test, such as the standard of living comparison test included in the federal guidelines:

When applying the provincial rules for determining child support, the court may, under article587.2, C.C.Q., increase or reduce the basic support contribution if it deems that maintaining the current level of support would entail undue hardship for either parent, resulting from, for example:

• costs involved in exercising visiting rights in respect of the child;
• obligations of support toward persons other than the child; and/or
• reasonable debts incurred to meet family needs.

The above-mentioned examples of undue hardship may also be invoked under the Federal Child Support Guidelines, thus enabling the court to alter the obligation of support already established, but only in favour of the parent whose household has a lower standard of living. In order to compare the living standards of the respective households, the Federal Child Support Guidelines (section 10(4) and Schedule II) provide a “Method to Compare Household Standards of Living.”

Even though a test for comparing household living standards does not exist within the framework of the provincial Regulation, we believe that the latter method, which makes it possible to compare the income ratio of each household and thus to take into account the new reality of blended families, is purely objective and could serve as another source of inspiration when it comes time to evaluate claims of undue hardship made by one of the parties when both reside in the province of Quebec.[53]

LAW, REGULATION AND FORM

Civil Code of Québec, article 587.2, para. 2

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.

PROBLEM AREAS

The key to this concept resides in the court’s appraisal of the facts presented in each case. Generally speaking, as can be seen from the voluminous rulings dealing with the issue, it would appear that judges are indeed inclined to use the discretionary power granted under article587.2, para. 2, of the Civil Code of Québec.

It is nevertheless interesting to note that some writers suggest that this discretionary power should be framed by certain regulatory guidelines; in particular, they propose an objective test along the lines of the household living standards test provided in the federal guidelines.

Lastly, let us note for the record an intervention made by a party before the court who wrote to the Ministère in order to point out, among other things, that a judge had applied the concept of undue hardship to his case even though the concept had never been invoked before the court. (Letter of May 12, 1999. Also see Droit de la famille—3238, J.E. 99-1169).

VARIATION OF THE CASE LAW

According to the case law, failure of the non-custodial parent to exercise his or her access right, an obligation to support a new spouse, debts, and the need to maintain the children’s previous living standards may, in certain circumstances, constitute undue hardship for both payers and receivers of support. These grounds are not, however, automatically upheld by the court. It is incumbent upon the party claiming undue hardship to overturn the presumption that the amount of support provided in the table meets the children’s needs to the extent of the parents’ ability to pay.

• Droit de la famille—3228, J.E. 99-1169 (C.A.)
  (Access rights not exercised can constitute undue hardship)
• Droit de la famille—3006, J.E. 98-1173 (C.A.)
  (Access rights not exercised do not constitute undue hardship)
• Droit de la famille—3010, J.E. 98-1229 (C.A.)
  (Support for a new spouse does not automatically entail undue hardship)
• Droit de la famille—2784, J.E. 97-1964
  (New family obligations constitute undue hardship)
• Droit de la famille—2943, J.E. 98-747
  (Support for a new spouse does not constitute undue hardship)
• Droit de la famille 3026, J.E. 98-1340 (C.A.)
  (Paying support for other children does not constitute undue hardship)
• Droit de la famille—3006, J.E. 98-2273 (C.A.)
  (Support for a new spouse and a handicapped child constitutes undue hardship)
• Droit de la famille—2820, (1997) R.D.F. 820
  (Support payments totalling over 50% of disposable income constitute undue hardship)
• Droit de la famille—2849, J.E. 98-92
  (Debt does not constitute undue hardship)
• Droit de la famille—2879, J.E. 98-318
  (Difficulty of maintaining the previous living standards of the children constitutes undue hardship for the receiver of support)

OBSERVATIONS

In examining the case law as well as the reasons why certain parties have settled upon a level of support that differs from the amount calculated using the form, we have observed that a number of parents adopt the grounds provided in article587.2, C.C.Q.In cases where an agreement has been reached, it is understandable that the parties are able, of their own accord, to apply the concept of undue hardship. Thus, they make the necessary adjustments in light of their own situation, in keeping with the provisions of the model. The court will, however, serve as a watchdog, making sure that the agreed-upon level of support is sufficient to meet the needs of the child or children in question.

However, in situations that are less than ideal, i.e. when the parties do not reach an agreement, it is incumbent upon the court to determine whether maintaining the level of support will result in undue hardship. With regard to an exception to the result of a strict application of the model in a way, the relatively restrictive interpretation of the majority of the rulings examined seems normal and in accordance with the overall thrust of the model.

The current interpretation provided by the courts also seems desirable insofar as the lawmakers intended the model to be applied as uniformly as possible.

It goes without saying that, like special expenses and the calculation of custody time, the concept of undue hardship has been the subject of considerable debate among jurists who have asked the courts to clarify, even verify, the scope of these new concepts. Since these concepts call for a good deal of discretion, it is therefore not surprising that a substantial body of case law has been generated since the model came into force. Over time, and given the trends established in the case law, these concepts have inevitably become more integrated into general practice. Under the circumstances, should the discretionary powers outlined in the model be restricted by a more rigid framework? By adopting such an approach, we would run the risk of reducing the current flexibility of the model, and yet the process needs to be flexible in order to take into account the various situations of the families involved.

Furthermore, it is rather unrealistic to claim that any table or excessively rigid mechanism can include provisions for all the specific circumstances faced by parties before the court. Thus it is preferable that the current practice of examining each case on its own merits be maintained.

In addition, some writers have suggested that the Quebec model should incorporate the method of comparing household living standards outlined in section 10 of the federal guidelines. Under this provision, the court must dismiss a claim based on undue hardship, even though it has ruled that the claim is founded, if it believes that, following the determination of the support order, the household of the claimant spouse would benefit from a higher standard of living than the household of the respondent. In this regard, the court may also apply the method outlined in Schedule II of the federal guidelines. This method takes into account, in particular, the annual income of all members of the household, including the new spouse and the children. Had such an approach been incorporated into the Quebec model, it may be assumed that our courts would have heard fewer appeals based on undue hardship, given that lawyers would first have carried out the calculations that are prescribed in the method. This being the case, it follows that our courts would not have been able to assess the particular circumstances of these cases, as has been the practice up until now. And given that the concept of undue hardship is already being interpreted in a restrictive manner, isn’t it reasonable to conclude that fewer claims would actually have been received? In fact, whether the party before the court was a payer or receiver of support, he or she would not have been able to count on the legal system for a definitive ruling. The discretionary power currently held by Quebec’s judges would have been circumscribed if the federal method had been incorporated into our model, and so would any possibility for recourse on the part of the party before the court.

Up until now, it has not been shown that incorporating the federal method would have a positive impact on the model.

Given current case law as it pertains to undue hardship, and in light of the potential effects of the aforementioned method on the model, it does not appear desirable, as things stand, to provide an additional framework for the concept of undue hardship as it is currently outlined in article587.2, C.C.Q.

THE COMMITTEE RECOMMENDS THAT:

• The current wording of article587.2, para.2, with respect to undue hardship, be maintained.

THE DETERMINATION OF SUPPORT FOR A CHILD AT OR ABOVE THE AGE OF MAJORITY

CONTEXT

The Regulation respecting the determination of child support payments stipulates that its guidelines “apply to any application filed by a parent in respect of a child at or above the age of majority 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 at or above the age of majority to represent him in the exercise of his rights to support” (section 1 of the Regulation).

This provision, as it stands in the Regulation, does not create any new rights, and therefore it is still not possible for Quebec parents to file for support in respect of a child at or above the age of majority under the provisions of the Civil Code of Québec. On the other hand, under the Divorce Act, a parent may legitimately file for support in respect of such a dependent child, as established in section 2(1) of the Act. Thus it is only in these cases that the Regulation will apply to a child who has attained the age of majority, and the court will, accordingly, determine the level of support payable for the child in question by using the Child Support Determination Form and the table. However, under section 2 of the Regulation,

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.

Moreover, in accordance with article587.2, C.C.Q., “The court may also increase or reduce the level of support if it is warranted by … the extent of the resources available to the child.”

As a result, the guidelines provided in the Regulation apply to any application for support filed by the parent of a dependent child at or above the age of majority within the framework of the Divorce Act. However, when one of these children files on his or her own behalf for parental support under articles585 and 587, C.C.Q., the Child Support Determination Form and table no longer apply, and the child must submit a statement of income and expenditures in the manner prescribed by the Rules of practice of the Superior Court of Quebec in family matters. The level of support will then be determined on the basis of the child’s needs and resources, as well as the financial capacity of both parents.

LAW, REGULATION AND FORM

Civil Code of Québec

585.

Spouses, and relatives in the direct line in the first degree, owe each other support.

586.

Proceedings for the support of a minor child may be instituted by the holder of parental authority, his tutor, or any person who has custody of him, according to the circumstances.

The court may order the support payable to the person who has custody of the child.

587.2, para.2

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 added)

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.

PROBLEM AREAS

The Committee was apprised of a letter in which a party before the court complained about the fact that his children who had attained the age of majority were eligible under the law to receive child support. In this regard, the father asked the Ministère to ensure that

students of 18 and over make every effort to become as autonomous as possible by working in the summer and on weekends to pay for their studies… [and] that students who have begun undergraduate studies, in light of their autonomy, be deemed ineligible to receive support. Providing child support for such young people represents a burdensome obligation for a couple just beginning a new married life or a common-law relationship. The obligation to provide support also affects the financial situation of the support payer’s spouse or common-law partner….

However, certain Committee members have wondered whether it is advisable to maintain current differences in treatment depending on whether civil law rules or the Divorce Act are actually applied in cases involving children at or above the age of majority.

VARIATION OF THE CASE LAW

The model is only applicable to children who have attained the age of majority in matters of divorce, which is under federal jurisdiction. The case law confirms that only parents who have already been married and whose divorces are pending or who are in fact divorced may apply for support on behalf of their children at or above the age of majority. Thus, common-law spouses or parents who are legally separated may not invoke section I of the Regulation under which the applicant parent is presumed to hold a mandate for the child of full age, and, given that the provisions of article586, C.C.Q., apply only to proceedings for the support of a minor child, the Regulation cannot have a broader application than what is indicated in the law. Furthermore, the provisions of the Regulation may only be applied when a parent files an application for support on behalf of his or her child at or above the age of majority. Children at or above the age of majority who petition the court for support on their own behalf are not subject to the terms of the Regulation.

• Droit de la famille—2864, J.E. 98-204
  (Child at or above the age of majority of common-law spouses)
• Droit de la famille—2899, J.E. 98-448
  (Child at or above the age of majority filing for support on his own behalf)
• Droit de la famille—2942, J.E. 98-750
  (Application of the Regulation to a child at or above the age of majority)

OBSERVATIONS

In spite of the fact that the case law tends to suggest that the model does not apply in cases filed under civil law or when children at or above the age of majority file for support on their own behalf, the Committee has observed that the court will, in such cases, nevertheless apply the provisions of section 2 of the Regulation respecting the determination of child support payments. Thus the legal system does take into account all the circumstances of the children covered by this provision.

This being said, not all “dependent” children who have attained the age of majority actually benefit from the presumption established in article587.1, C.C.Q., whereby “the basic parental contribution… is presumed to meet the needs of the child and to be in proportion to the means of the parents.” As has already been noted, under current law, the Quebec model applies to a child at or above the age of majority only insofar as the Divorce Act is applicable and the request for support is filed by one of the parents. Hence, it would appear that the Quebec model, which is part of civil law, is not applicable with respect to children who have attained the age of majority in situations covered by civil law, namely those involving common-law spouses, legal separations and annulments. In these same situations, neither parent may be presumed to hold a mandate for the child at or above the age of majority.

It is pertinent to note that 50% of support orders now pertain to family matters covered by civil law, i.e. 10% for legal separations and 40% for common-law spouses.

In 1989, out of 37,612 new files pertaining to family matters, 62% involved divorce and 38%, legal separations, marriage annulments and common-law spouses. Ten years later, 1999 figures indicate that out of 37,075 new files in the same area, the percentage of divorce cases dropped to 50%, to be replaced primarily by cases involving common-law spouses.

A number of practitioners who completed the questionnaire mentioned that problems have arisen with the way the rules respecting children who have attained the age of majority have been applied and that such rules should be more clearly delineated. Some Committee members would also like to see the model applied to children at or above the age of majority in order that one of the parents might be mandated to act on their behalf in matters covered by civil law.

It is important to continue to variation the situation to determine whether or not the model should apply to dependent children who have attained the age of majority with respect to cases in civil law.

THE COMMITTEE RECOMMENDS THAT:

• The Ministère de la Justice continue to look at whether or not the model should apply to all children who have attained the age of majority whenever an application is filed on their behalf by one of the parents.

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