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

July 2004

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LIST OF RECOMMENDATIONS

RECOMMENDATIONS MADE DURING THE COMMITTEE'S MANDATE

1.  First of all, it is recommended that three other types of custody arrangements be added to Division 4 of Part 5, of the form. The Committee has concluded that their absence causes problems for users whose particular situation is not described in the form. The proposed new Division 4 would include the following four types of custody arrangements:
   1.  Both “sole” and “shared custody;”
   2.  Both “sole custody” and “sole custody with visiting and prolonged outing rights;”
   3.  Both “sole custody with visiting and prolonged outing rights” and “shared custody;” and
   4.  Simultaneous “sole custody,” “sole custody with visiting and prolonged outing rights” and “shared custody.”
2. The latter three types of custody arrangements would be added to the first category already included in the form. A minimum of two children would be required before the first three types would apply, whereas the fourth necessitates a minimum of three children. With these additions, the range of possible situations would be broadened, thus making the model easier to apply while reducing the risk of error on the part of users.
3.  The Committee recommends that an error in logic contained in Division 4 of Part 5, of the form be corrected. It would seem that the current method of calculating annual support contributions does not take into account certain amounts listed by one or the other parent. Thus, in certain circumstances, the compensations provided in the model may not in fact be correct. The Committee therefore proposes a new Division 4, one that will factor in all amounts listed by one or the other parent. According to the analysis included in Appendix 8 of this report, for instance the form as it stands does not provide for the proper calculation of support payable at lines 545 and 551 in a situation where there are three children, with the father having sole custody of one child and shared custody of the other two. The annual support payable by the father ($976.67) is not reduced by the amount the mother owes him for the child of whom he has sole custody ($488.33). Line 563 of the proposed new form (see Appendix 9 of the report) includes the same example, to which the recommended changes have been applied. It will be noted that in this case the annual support payable by the father is $488.34, instead of $976.67.
4.  The Committee recommends that the form be changed so that the annual amount of support payments may be recorded in terms of one of various types of instalment plans. (These proposed changes may be found in Part 8 of the new form.) In the course of its deliberations, the Committee noted that, upon occasion, support awards are listed on an annual basis only (the amount listed in the table), the parties having neglected to calculate monthly instalments and to indicate the due date of the first payment. The proposed changes would make the model more complete and its use more practical.
5.  The Committee also recommends that the form clearly indicate that the expenses to be listed at lines 403 to 405 of the form (child care expenses, post-secondary education expenses and special expenses) are net expenses, in accordance with section 9 of the Regulation. This involves reminding users of an already existing provision of the model and may be accomplished by adding the word “net” to the end of each of the aforementioned lines. The Committee believes that it is important to emphasize this point for users by directly mentioning it in the form. In this way, fewer problems will arise due to ambiguity.
6.  The Committee recommends that the table (Schedule II of the Regulation) be changed in order to rectify a misprint with respect to the initial calculation of one specific amount. The error has been present since the table was first published, even as the amounts listed therein were indexed in January 1998 and January 1999. Accordingly, the entry in the 1997 table for parties with one child and a disposable income of between $66,001 and $68,000 should read $7,190, not $7,090. Indexed in accordance with the terms of the Regulation, this amount should have reached $7,520 as of January 2000, and not $7,400 as it currently stands.
7.  In the proposed new form, a second explanatory note would appear in Part 5 with respect to shared custody. It would clearly indicate the possibility of an adjustment if the basic parental contribution is not assumed by each parent in proportion to the custody distribution factor. For instance, parents could reach an agreement stipulating that the mother will be responsible for the purchase of all children’s clothing. This would necessarily entail an adjustment in the annual support payments. These explanations would appear in the form itself in order to make it easier to use and understand.
8.  It is recommended that a question be added making it possible to identify the person or persons having filled in the form, i.e. whether it was the father, the mother or both parents, or whether it was produced by the presiding judge. With this information, it would be easier to process the forms in the file since their origin would be clearly indicated. Moreover, such an approach should normally reduce the risk of confusion and improve the model’s effectiveness.
9.  The Committee also considers that it would be wise to change the form from legal to letter format, in order to make the form more user friendly. Parties before the court are more familiar with the letter format, and such a change would reflect the Committee’s concern with meeting users’ needs. Moreover, the new format would make it easier to use the tools necessary for applying the model, including calculation software, and make the form simpler to print.
10.  The Committee recommends that a framed insert be added to Part 4, set apart from the calculation section, so that both parents can record the amounts corresponding to their respective percentages of the total listed at lines 403 to 405. This change reflects the Follow-up Committee’s desire to make this data stand out more clearly, since in the present form this information does not stand out at all. However, this change would in no way affect the standard rules for determining child support and would be included simply to provide the user with more information. In fact, only the total for both parents recorded at these lines would be applied for determining child support, as is currently the case.
11.  The Committee also believes that it would be useful to change Line 702 in Part 7, of the form, which makes it possible to calculate the difference between annual support payable and support payable based on an agreement between the parents. As opposed to the method of calculation now in place, the proposed new procedure at Line 702 would allow for the possibility of a negative difference when the agreement between the parties involves an amount lower than that established through the calculations carried out in Part 5 of the form.
12.  The Committee recommends a few terminology changes in order to make certain terms more stylistically and grammatically appropriate and to bring the language of the form in line with changes in terminology adopted by other government departments.
13.  The modified version of the form is included in the present recommendations and may be found in Appendix 10 of the report. The proposed new form features certain changes in formatting and layout that make it easier to use and understand, thus reducing the risk of user error.
14.  Lastly, the Committee believes that is advisable to set down a transitional provision stipulating that the proposed changes do not apply to pending support proceedings. Joint applications filed after the coming into force of this new form may also be excluded from its terms and conditions if the parties based their agreement on calculations carried out using the old form, so long as they request such an exemption. The application of the new form may also be delayed if so decided by the courts.

Part 2—Statement of parents’ income

The Committee recommends that:

• 14. The current concept of gross income be retained for purposes of calculating child support.
• 15. The information brochure for the model be redesigned to include, along with the general information currently provided, an explanatory note for each line of the form, following the example of the income tax return guide.
• 16. The information brochure include explanations about the use of gross income in relation to the way the table was designed.
• 17. The obligation to provide the prescribed documents be clearly stated in the Regulation itself, and not just in the form.
• 18. The Minister of Justice establish mechanisms for revising the model on an on-going basis and that these mechanisms be designed to take into account, in particular, any major changes in the individual tax burden.
• 19. The Regulation and form be changed so that lines 202 and 207 read as follows:
  •  202—Net income from a business or self-employment
     (gross income less expenses related to the business or
     self-employment)
  •  207—Net rents
     (gross income from rental activities less expenses related to rental
     of the property)
• 20. The Ministère de la Justice pursue the examination begun by the Committee about how to deal with depreciation allowances.
• 21. The definition of “annual income” provided in section 9 of the Regulation be changed in order to stipulate that loans and bursaries awarded as part of the Quebec Ministère de l’Éducation’s student financial assistance program not be included when calculating parental income.
• 22. In cases of shared custody, the rule should be that the parent with the lower income is the one entitled to receive child-related government transfers (the Canadian child tax benefit and the Quebec family allowance), unless the parties or a judge decide otherwise, in which case the officials concerned would be bound by the terms of this decision.

Part 3—Calculation of parents’ disposable income

The Committee recommends that:

• 23. The Regulation be amended so that the title of Part 3 of the form would read as follows: Calculation of parents’ disposable income for purposes of determining support payments.
• 24. The concept of disposable income be explained more clearly in the model’s information brochure.

Part 4—Line 400—Number of children covered by the application

• In order to avoid the ambiguity created by the expression “children covered by the application,” the Committee recommends that:
• 25. The aforementioned expression, appearing in Part 1 at Line 400 of the form, be replaced by “Children of the two parties covered by the application.”

Regarding obligations of support to other unions, the Committee recommends that:

• 26. The Department of Justice pursue the Committee’s investigation of various solutions with respect to support obligations arising from other unions.

Part 4—Line 401—Basic parental contribution according to disposable income of both parents

The Committee recommends that:

• 27. The Minister of Justice clearly indicate, in any way she deems appropriate, including by means of an amendment to the Regulation, that the basic parental contribution is meant to cover all the needs of the children (both essential and non essential), except the child-care related expenses outlined in section 9 of the Regulation.

Part 4—Line 403—Child care expenses

The Committee recommends that:

• 28. The model’s information brochure provide the user with more information concerning all expenses covered by the concept, as well as the method of calculating net expenses.

Part 4—Line 404—Post-secondary education expenses

The Committee recommends that:

• 29. Section 9 of the Regulation be amended to specify that post-secondary education expenses are by definition expenses exceeding the amounts of loans and grants in cases where the child is eligible to receive them.

Part 4—Line 405—Special expenses

The Committee recommends that:

• 30. The rules respecting special expenses be maintained in their current form.
• 31. The Ministère de la Justice pursue the examination of developments related to special expenses, in particular the relevant case law, in order to determine the utility of providing a more precise definition of the concept.

Part 5—Calculation of annual support according to custody time

The Committee recommends that:

• 32. The Regulation be amended to include a provision that custody time be calculated by taking into account the entire period of time that the child is under a given parent’s care and the entire period during which the child is the responsibility of the custodial parent.
• 33. The model’s information brochure provide a more thorough explanation of how custody time is to be calculated and of the impact of shared custody with respect to the division of shared expenses.
• 34. The Ministère de la Justice undertake a thorough examination of the cost of child care in relation to the amount provided in the table and the method of calculation in cases where at least one parent has sole custody of at least one child and both parents have joint custody of at least another child.

Part 6—Capacity to pay of debtor

The Committee recommends that:

• 35. The Regulation be amended so that the current rate of 50% of disposable income be replaced by 40% of disposable income.

Part 7—Agreement between parents

The Committee recommends that:

• 36. The Ministère de la Justice remind all judges and special clerks that when they, respectively, ratify and confirm an agreement, they must in all cases ensure that the reasons for the difference between the terms of the agreement and the levels of support in the table be clearly stated in the agreement or in Part 7 of the form.
• 37. Article 825.14, C.C.P., be amended to stipulate that the reasons for any difference be provided in the agreement or in the form.

Part 8—Statement of each parent’s assets and liabilities

The Committee recommends that:

• 38. The Ministère de la Justice remind the parties and all practitioners of the obligation to complete all sections of the form.

Problems Related to Indexation

The Committee recommends that:

• 39. The Regulation be amended so as to provide for the indexation of the basic deduction found at Line 301 and of the parents’ disposable income brackets appearing in the table, in addition to the support contributions listed in the table.

The Concept of “Undue Hardship”

The Committee recommends that:

• 40. The current wording of article 587.2, ss. 2, C.C.Q., with respect to undue hardship be maintained.

Determining Levels of Support For Children at or Above the Age of Majority

The Committee recommends that:

• 41. The Ministère de la Justice continue to investigate the advisability of making the model applicable for all children who have attained the age of majority if the application for support is filed by one of the parents.

Conclusion—Renewal of the Committee’s mandate and distribution of the report

The Committee recommends that:

• 42. Its mandate be renewed in order that it might complete the recommended studies, as well as any other mandate with which it is entrusted by the Minister.
• 43. The present report be released to the public and that the Minister of Justice take the appropriate measures to have it distributed to all interested parties and practitioners.

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