Children Come First: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines

5. FEDERAL ROLE IN SUPPORT ENFORCEMENT IN CANADA

This annex provides more detail on the results of the work the federal Department of Justice did during the Child Support Initiative to support federal enforcement, described in Volume 1 of the Report to Parliament. It is organized into five parts.

  • Part 1 describes the different sections of the federal Department of Justice involved in support enforcement.
  • Part 2 discusses the amendments to federal legislation and the ongoing policy work on federal legislation.
  • Part 3 lists the federal initiatives to improve compliance with support obligations.
  • Part 4 reviews the reciprocal enforcement of family support obligations.
  • Part 5 reports on research activities in this area.

PART 1: DEPARTMENT OF JUSTICE SECTIONS INVOLVED IN SUPPORT ENFORCEMENT

BACKGROUND

Provincial and territorial governments established Maintenance Enforcement Programs (MEP) in the mid-1980s to provide an intermediary service for those paying family support and those receiving family support payments.

The Government of Canada then began to support enforcement through legislation. In 1983, it passed the Garnishment, Attachment and Pension Diversion Act (GAPDA), which removed Crown immunity for federal employees and let provinces and territories apply to have federal wages and pensions garnisheed to satisfy family support obligations.

In 1987, the Family Orders and Agreements Enforcement Assistance Act (FOAEA) was enacted. Under the FOAEA, the Government of Canada started using federal databases to trace and locate defaulters and helped with garnishment by intercepting federal funds such as income tax refunds and employment insurance benefits. A unit within the federal Department of Justice, the Family Law Assistance Service (FLAS), does the work behind these acts.

SUPPORT ENFORCEMENT POLICY AND IMPLEMENTATION UNIT

The Child Support Team's Support Enforcement Policy and Implementation Unit was created as part of the Child Support Initiative. It was the first time that a special unit was responsible for enforcement policy, coordination, and planning enforcement activities the Government of Canada requires to respond to the needs of families and children.

The unit's first priority was to support the 1997 amendments to the FOAEA, the GAPDA, and other statutes. Its focus then shifted to finding ways to assist support enforcement programs and to improve compliance nationally and internationally. The success of these initiatives depended on coordination with other federal departments. This section provides information on many of these initiatives.

The provinces and territories deliver MEPs, so the Unit worked with these jurisdictions through three primary forums: the Enforcement Subcommittee of the Federal-Provincial-Territorial Task Force on the Implementation of Child Support Reforms, the Federal-Provincial-Territorial Reciprocal Enforcement of Maintenance/Support Orders Working Group (REMO/RESO), and the Maintenance Enforcement Program Directors Group.

FAMILY LAW ASSISTANCE SECTION

The Family Law Assistance Section (FLAS), located in the federal Department of Justice's Civil Law and Corporate Management Sector, puts into effect the FOAEA, the GAPDA, and the Central Registry of Divorce Proceedings Regulations made under the Divorce Act. Throughout the Child Support Initiative, the FLAS has worked closely with the Child Support Team and the provinces and territories to ensure the full and proper implementation of the 1997 legislative reforms and to introduce administrative changes to further improve the enforcement of support obligations.

PART 2 (A): AMENDMENTS TO FEDERAL LEGISLATION

On May 1, 1997, FOAEA and GAPDA amendments came into effect. While the GAPDA saw only legislative changes, the FOAEA also changed to automate services to MEPs.

THE FAMILY ORDERS AND AGREEMENTS ENFORCEMENT ASSISTANCE ACT

Before May 1997, this Act provided two services: tracing and interception.

  • Under Part I, information banks at Human Resources Development Canada could be searched to locate either people who breached family orders or spousal agreements, or their children. When a child was abducted, these banks could also be used in Criminal Code investigations.
  • Under Part II, family support obligations could be satisfied by intercepting federal money that the Crown owed a debtor. Examples of such payments included income tax refunds, individual goods and services tax credits, and employment insurance payments.

The provinces and territories submitted applications for these services on special forms. Staff in the FLAS office then key-captured the information and exchanged computer tapes with most participating federal departments.

ASSESSING THE EFFECTIVENESS OF THE FEDERAL TRACING SERVICE

The 1997 amendments made Canada Customs and Revenue Agency (CCRA) databanks available for tracing under Part I. These databanks can now be searched for information on people in default of a family support provision. Such information includes residential addresses, and names and addresses of employers. The databanks could also be used in investigations of child abductions under sections 282 or 283 of the Criminal Code.

An analysis of the way the MEPs have used the federal tracing service over the past five years (Table 1) shows that use has varied considerably by province and territory.

Table 1: Number of Tracing Applications, by Province and Territory and by Year
  1996-1997 1997-1998 1998-1999 1999-2000 2000-2001
Alberta 10,378 4,200 2,815 323 541
Ontario 1,237 147 116 372 409
B.C. 1,327 1,763 1,465 6,609 9,154
Manitoba 488 285 497 482 589
Saskatchewan 175 701 709 581 919
Quebec 65 58 53 646 1,312
Nova Scotia 222 235 242 193 396
Newfoundland 198 333 261 197 442
New Brunswick 75 67 39 10 6
P.E.I. 0 4 2 1 2
N.W.T. 0 14 1 0 0
Yukon 2 16 44 18 0
Nunavut 1 0 0 0 1
TOTAL 14,168 7,823 6,244 9,432 13,771

In 2000, MEP employees were asked about their needs when tracing and finding debtors. This survey also provided some insight on why the MEPs vary in their use of the federal tracing service. Here are the changes MEP employees recommended:

  • speedier access on the Internet;
  • better confirmation and validation of social insurance number information;
  • removal of the affidavit process; [527]
  • better reporting of trace results;
  • more current information; and
  • more employment information on debtors.

Finally, the federal Department of Justice commissioned a study in British Columbia that examined the impact of adding CCRA databases to Part I of the FOAEA.[528] The study examined the way the federal tracing process and provincial system worked. It did so by collecting data on a sample of federal trace requests and tracking those requests as they moved through the federal tracing service in the FLAS and as the results came back to British Columbia. The study then assessed the usefulness and outcome from the federal trace results for those cases.

This study identified some issues:

  • FLAS information often contains duplication, old information, or partial information that is redundant;
  • trace results aren't always reaching front-line enforcement officers quickly enough;
  • paper is still used to transmit results to front-line staff; and
  • there is inadequate communication between, and education of, all parties in the system.

As a result of the study, British Columbia has already begun testing methods to streamline the system. These have produced better results. The percentage of useful employer addresses has increased from 5 percent, as reported in the study, to 18 percent. Even so, MEPs may not be using the present system of federal tracing to its full potential.

There are still some issues that need to be discussed and dealt with (such as incompatible computer systems, the state of provincial and inter-provincial tracing efforts, the use and usefulness of federal information, and the need for more and better locator information). This will be a priority for the MEP directors and the Department.

INTERCEPTION SERVICE

The interception service garnishees designated federal funds owing to people who have defaulted on family support orders or agreements. There have been two principal amendments to the interception provisions since the Act came into force in 1997.

First, MEPs no longer have to provide a copy of the order establishing the support provision to apply under section 28 of the FOAEA. All they now need is an application on the prescribed form and a garnishee summons. A related amendment to Part II of the Family Support Orders and Agreements Garnishment Regulations[529] enables MEPs to electronically serve their application to the garnishee if both the MEP and the federal Department of Justice agree. This amendment ensures that the garnishment application process is compatible with automated systems.

Second, under amendments to subsection 203(1) of the Canada Shipping Act,[530] the wages of a seaman or apprentice are now subject to garnishment under Part II of the FOAEA.

As shown in Table 2, from 1996-97 to 2000-01 the interception service garnisheed over $300 million for family support obligations in Canada. The amounts collected annually also increased during this period. Between 1996-97 and 2000-01, the amount garnisheed increased by 27 percent. Given these increases over the past five years and the amounts being garnisheed, it is evident that the federal interception service will continue to be an important source of money for the MEPs to pass on to families.

Table 2: Amounts Garnisheed through Part II of the FOAEA (in thousands of dollars)
  1996–97 1997–98 1998–99 1999–00 2000–01
Alberta $9,964 $11,003 $12,497 $11,866 $12,100
Ontario $33,401 $33,750 $38,785 $40,022 $40,026
B.C. $8,884 $10,303 $11,807 $12,228 $11,561
Manitoba $1,590 $1,950 $2,207 $2,478 $2,601
Saskatchewan $1,806 $1,979 $2,244 $2,340 $2,422
Quebec $2,867 $2,490 $3,376 $4,037 $4,775
Nova Scotia $1,468 $2,547 $2,822 $3,074 $3,363
Newfoundland $2,084 $2,031 $2,180 $2,211 $2,261
New Brunswick $1,672 $2,053 $2,039 $2,036 $2,286
P.E.I. $199 $287 $333 $355 $353
N.W.T. $591 $668 $685 $674 $542
Yukon $182 $274 $287 $280 $305
Nunavut       $88 $110
Total $64,708 $69,335 $79,262 $81,689 $82,705

In 2000-2001, 92 percent of all funds garnished were from CCRA (tax refunds and GST Individual Rebates) and Employment Insurance Program benefits.  These accounted for 62 and 30 percent, respectively.

FEDERAL LICENCE DENIAL SCHEME

To deal with cases of chronic default, the Government of Canada looked into suspending or denying federal licences and certificates to wilful defaulters who were not in contact with the provincial or territorial MEP. This would force such people to contact the MEP to arrange a payment schedule.

Provincial and territorial MEPs use licence denial exclusively when other measures have failed. The MEPs can apply to the FLAS to deny or suspend licences or passports per the Aeronautics Act and the Canada Shipping Act[531]

Some characteristics of the licence denial cases at the time of application:

  • The average support order has been enforceable for almost six years.
  • The median amount of arrears is $12,774.
  • The median number of missed payments is 38.

Before applying for licence denial, the MEP must notify the defaulter that it plans to use this method. The defaulter has 40 days to enter into an acceptable payment plan. Failing that, the MEP applies to FLAS, showing that:

  • it made reasonable enforcement attempts;
  • the payer has not met his or her support obligations for any three payment periods; or
  • the payer has accumulated arrears of at least $3,000.

As of June 30, 2001, 949 payers had had either their passport (879) or their transport licence (70 aviation or marine licences) suspended. Another 18 debtors had both their passport and a transport licence suspended. In 70 percent of the MEP applications (8,562), the FLAS did not suspend the licence or passport but did put the person's name on a Vcontrol listV to ensure that no passport or licence would be issued to that person, if he or she applied for one.

The MEPs cancelled or withdrew 21 percent of applications, which removed people's names from the control list or allowed them to get their passport or licence back. The MEPs cancelled or withdrew these applications because the payer paid the arrears in full, because the payer satisfactorily rescheduled payments for the arrears, or because new information came to light.

Currently, approximately 450,000 support orders are registered with the MEPs. The provinces and territories estimate that, across Canada, 70 to 75 percent of cases are in default at some point during the life of the obligation. As of June 30, 2001, the FLAS had received 12,061 valid applications for federal licence and passport denial. This represents about 2.5 percent of the total MEP caseload, so the MEPs are clearly using this initiative selectively and, judging from the case characteristics, only in cases of chronic default.

OPERATIONAL AND SYSTEM CHANGES TO FOAEA PROCESSES AFTER MAY 1997

ELECTRONIC FILING

A procedural amendment to the Release of Information for Family Orders and Agreements Enforcement (FOAEA ) Regulations[532] (May 1997) allowed MEPs to use agreed-upon electronic means to send the application and accompanying affidavit. Unlike other authorized applicants, the MEPs do not have to provide a copy of the family provision to which the application relates. This amendment reduces delays and also reduces administrative costs.

FEDERAL OPERATIONAL AND SYSTEM CHANGES

To help ensure the timely transfer of support to children and families, on May 1997 the Government of Canada funded online computer access between federal and provincial/territorial enforcement services. This made it easier for garnishment and tracing applications, and provided quicker and more standardized collection from out-of-province payers.

The FOAEA computer system was originally designed in the mid-1980s, when the Act was introduced. At that time, governments expected to garnishee $3 million to $4 million per year, with an estimated volume of 10,000 active garnishee summonses. By March 31, 1997, the program had 71,762 active garnishee summonses and was processing approximately 300,000 garnishee actions annually to collect over $65 million per year. This sharp increase in usage hurt the operations of an already outdated system. At this same time, the system was also being stressed by other elements such as the need to:

  • enhance the computer interfaces with other government departments and the provincial and territorial MEPs,
  • integrate the system with evolving government financial systems,
  • accommodate future legislative and technical enhancements,
  • improve the security and integrity of information,
  • integrate the system with current industrial standards for software and hardware,
  • archive and report management of information,
  • provide bilingual applications, and
  • address Y2K issues.

These issues, along with the increased use of the system, made it necessary to immediately redesign the system to ensure its future viability and to accommodate new elements. There was an exhaustive security review of the information that the system handled and exchanged with provincial and other source departments. This review found that existing technology would allow the system to operate on the Internet at the same security level.

From 1997 through 1999, the FOAEA computer system was re-engineered to make it work on the Web and to make it available to the provincial MEPs. This Web-enabled system has also provided the provinces with the following benefits:

  • immediate access to information on FOAEA applications for tracing, garnishment, and licence denial,
  • elimination of the manual application information process,
  • use of the file transfer protocol (FTP) to transfer information to and from the FLAS, thus eliminating the errors and omissions that commonly arise when using manual processes or data entry on the Web, and
  • an infrastructure allowing secure communication between the provinces.
COORDINATING THE IMPLEMENTATION OF THE FOAEA ENHANCEMENTS AND COMPUTER LINK WITH MEPS

The FLAS had to put this system in place while integrating it into existing provincial computer systems. Because of security requirements, provinces needed to install security software that was not necessarily compatible with their existing systems. This, together with incompatibility between the FOAEA and the provincial firewalls, has led to delays in provinces using the new FLAS automated system to its full potential.

The FLAS is currently working with the provinces to solve these incompatibility problems and to explore new avenues, such as increased FTP use to transfer and exchange information that would make the system more effective.

THE GARNISHMENT, ATTACHMENT AND PENSION DIVERSION ACT

This Act is divided into two parts. Part I of the GAPDA provides for the garnishment and attachment of salaries (and certain other moneys paid to Crown employees and public officials). Each government department and Crown corporation has a division in the Act, as do National Defence, the Senate, and the House of Commons. Part II of the Act permits governments to divert pension benefits to help satisfy financial support orders.

GAPDA, PART I: GARNISHMENT AND ATTACHMENT OF FEDERAL EMPLOYEE SALARIES

Before May 1, 1997 it was necessary to serve a notice of intention on a defaulter 30 days before garnisheeing federal salaries. Amendments to Part I of the Act eliminated this requirement for federal bodies, in the case of government departments and Crown corporations (Division I) and the Senate, House of Commons and Library of Parliament (Division IV). This change made it easier for MEPs and the courts to handle the garnishment process. This amendment was consistent with garnishment processes in private industry and makes the process similar to that used currently under the FOAEA.

This change was neither monitored nor evaluated because there were not enough standardized data. Ways to put in place an automated, central system to collect standardized data are now being studied. For more information on this, see details below on the GAPDA feasibility study.

GAPDA, PART II: RESIDENCE REQUIREMENTS

Changes to section 36 in Part II of the Act removed the requirement that the applicant for pension diversion live in Canada. Sometimes, recipients were being denied pension diversion because they had moved outside the country.

GAPDA, PART II: EARLIER PENSION DIVERSION

Before May 1997, a pension benefit could only be diverted once it became payable. To address this issue, sections 35.1 to 35.4 were introduced to Part II of the Act allowing the Minister to deem amounts to be payable immediately so that they can be used to satisfy support arrears. This will occur where an applicant applies to a court for an order and satisfies the court that there is an extended pattern of non-payment and that the applicant has taken reasonable steps to enforce the financial support order.

GAPDA, PART II: ARREARS OF PAYMENT OF SUPPORT

A May 1997 amendment to section 40.1 provided that when a financial support order is an order or judgment for support arrears, more than 50 percent of the recipient's net pension benefit can be diverted if there is no limit in the provincial legislation.

PART 2 (B): ONGOING POLICY WORK RELATED TO FEDERAL LEGISLATION

CLAUSE-BY-CLAUSE REVIEW OF THE FOAEA AND THE GAPDA

Both the FOAEA (Part I came into force in 1987 and Part II in 1988) and the GAPDA (Part I was proclaimed in force in 1983 and Part II, III and IV in 1984) are being modernized so that they can address current legislative practices and developments. Where necessary, services have been streamlined and made more effective. These amendments will include technical and substantive recommendations that will rework the language to make it clearer. Information, statistics, case law, and rationales support these recommendations. In addition, the GAPDA administrative program is being reviewed for ways to improve it. The detailed recommendations for amendments are based on internal and external consultations with federal, provincial, and territorial stakeholders.

HARMONIZATION WITH THE QUEBEC CIVIL CODE

Because civil law and common law co-exist in Canada, the Government of Canada is harmonizing federal legislation so that English and French versions of federal legislation respect both civil law in Quebec and common law in the other provinces and territories. However, harmonization will not change the substantive law nor will it reform federal legislation. The Civil Law and Comparative Law Section of the federal Department of Justice put in place the Harmonization Program. Per its recommendations, some concepts in the FOAEA and the GAPDA will need to be amended to reflect Quebec's legal reality.

PART 3: FEDERAL INITIATIVES TO IMPROVE COMPLIANCE WITH SUPPORT OBLIGATIONS

Several federal Department of Justice initiatives have improved compliance with support obligations. This section lists the major federal initiatives.

FOAEA PART III: SECTION 76 OFFENCE

Section 76 was added to the FOAEA in May 1997. It says that anyone who is notified that his or her passport has been suspended under Part III of the Act, and who fails to return the passport to a passport office, or who subsequently uses the passport, is guilty of an offence punishable on summary conviction and is liable to a fine not exceeding $5,000.

The Passport Office of the federal Department of Foreign Affairs and International Trade asked for this change, because passport orders made under royal prerogative do not provide the authority to follow up if the holder keeps a passport that the Passport Office has asked to have back. Now, however, a peace officer can investigate and then seize the revoked passport by getting a warrant under section 487 of the Criminal Code.

Due to the unknown volume of cases and resources needed to respond to this provision, the Royal Canadian Mounted Police (RCMP) conducted a two-year feasibility study to assess the costs of having officers investigate and retrieve suspended passports. During the feasibility study, the RCMP took a proactive approach. Investigators called on the residences of debtors who had not returned their suspended passports and requested the passport to be turned over to the authorities.  In addition, all cases were entered on the Canadian Police Information Centre (CPIC), so that if a debtor were stopped for an unrelated incident, the officer would request that the debtor turn over his/her passport.

The study provided a sense of how well this part of the federal passport denial/suspension program is working.  On the face of it, it appears that the proactive approach has had some impact.  Out of some 900 investigations sent to the RCMP, 191 passports (21 percent) were recovered by them.  Other indications of the success of the study are that in 85 cases out of a possible 146 investigations where the RCMP had some indication that payments had been made, follow-up with those cases with the MEP showed that over 50 percent of the $825,000 outstanding arrears and on-going payments were paid.

While it is too early to directly credit the RCMP with these payments, it is likely that debtors were motivated to work with MEPs by driver's licence denial, credit bureau reporting, possible liens or seizures against property, and so on. The MEPs indicate that they like the fact that there is follow through and enforcement against those who do not comply. The MEPs have indicated that as a result they are recovering considerable support arrears for families.

The feasibility study concluded on March 31, 2001. The federal Department of Justice and the RCMP are examining ways to continue enforcing the return of passports consistent with the results of the study.

BANK ACT AMENDMENTS

Since 1995, the provincial and territorial MEP directors have been asking for amendments to the Bank Act and to related banking legislation. In particular, they want changes to the requirement that MEPs serve enforcement documents at the branch or branches of the financial institution where a debtor maintains an account. This requirement caused problems when the enforcement program did not know where the debtor had accounts and assets.

Officials from the Support Enforcement Policy and Implementation Unit of the Child Support Team worked closely with federal Department of Finance officials. They developed an amendment that permitted provincial and territorial enforcement officials to serve enforcement documents at a designated office of a financial institution in each province or territory, instead of having to identify the specific branch where the debtor's account was located.

The amendment clarifies the section and amends the provision so that it will be easier for provincial and territorial authorities to enforce child and family support orders. The provisions remove the requirement that child and family support orders must be served at the branch where the debtor deposits are located. The Governor in Council will be able to regulate both the designation of one location in every jurisdiction for serving these orders and the information that must accompany such orders.

The amendments to relevant banking legislation came into force on October 24, 2001.

QUEEN'S REGULATIONS AND ORDERS FOR THE CANADIAN FORCES

In fiscal year 2001-02 the Canadian Forces were expected to ask for amendments to Chapter 207 of the Queen's Regulations and Orders for the Canadian Forces, regarding compulsory payments. This amendment will facilitate support order enforcement by removing the requirement for a creditor to get a separate court order for support arrears. This would permit garnishment of these amounts to be administered as they are under provincial legislation, which would be consistent with the FOAEA and the treatment of the rest of the public service who are subject to the regulations made under the GAPDA.

THE FEDERAL CHILD SUPPORT GUIDELINES INTERIM REPORT OF THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY

The June 1998 report of the Standing Senate Committee on Social Affairs, Science and Technology included three recommendations on enforcing child support obligations. One of the recommendations related to international agencies: The Minister of Foreign Affairs should work to ensure that international agencies of which Canada is a member develop procedures by which child support may be enforced.

This recommendation concerned employees of the United Nations (UN) and presumably employees of other international bodies. At the time this recommendation was made in June 1998, the UN did not have procedures to permit the garnishment of a staff member's salary and pension benefits to satisfy child support orders validly obtained in the employee's home country.

The federal Department of Foreign Affairs and International Trade, through the Permanent Mission of Canada to the UN, had raised this issue with the UN on several occasions, in the context of specific cases. Other member states, including the United States, also sought access to UN staff salaries and pension benefits.

In response, on May 20, 1999, the UN Secretary-General announced that UN staff members must comply with local laws and the orders of competent courts. This included paying support for spouses, former spouses, and dependent children. Staff rule 103.18(b)(iii) permits the Secretary-General to garnishee salaries and wages for debts to third parties, including debts related to family support orders. Should the staff member fail to honour his/her family obligations, the Organization will ask the staff member to comply and submit proof of compliance with the order.  In the event that proof of compliance is not submitted, the organization will commence deductions from the staff's member employment income and benefits. The amount will then be paid to the third party in accordance with the order.

UN regulations clearly regulate the privileges and immunities of members of the Secretariat and do not allow staff members any justification for not meeting their private obligations or for not observing local laws and regulations. Should any such question arise, the staff member is to immediately report the matter to the Secretary-General, who then decides how to waive that staff member's privileges and immunities.

On October 25, 2001, the UN Secretariat sent a memo to staff members (Administrative Instruction ST/AI/2000/12). This memo says that not submitting satisfactory evidence of compliance may constitute serious misconduct and lead to the imposition of appropriate disciplinary measures, as described in section 4.3 of the memo.

Canada's Permanent Mission to the UN has also asked about reform of the UN Pension Fund. On February 20, 2001, the General Assembly approved an amendment to make it easier to use this fund to enforce family support. This amendment allowed payment facilities to be used without consent from the current or former participant.

The federal Department of Foreign Affairs and International Trade has raised this issue with other international organizations of which Canada is a member. It has asked for information on how these organizations enforce child support orders. The federal Department of Justice will follow up and promote policies such as those implemented by the UN.

A second recommendation related to garnisheeing of federal pensions: "The government should explore the possibility of changing the law to permit the value of a federal pension, or a portion of it, to be paid out, as a last resort, as a lump sum to satisfy child support arrears."

This recommendation would affect these federal pension arrangements for Government of Canada employees:

  • Governor General's Act;
  • Lieutenant Governors' Superannuation Act;
  • Members of Parliament Retiring Allowances Act;
  • Judges Act;
  • Diplomatic Service (Special) Superannuation Act;
  • Public Service Superannuation Act;
  • Civil Service Superannuation Act;
  • Canadian Forces Superannuation Act;
  • Defence Services Pension Continuation Act;
  • Royal Canadian Mounted Police Superannuation Act, Part I;
  • Royal Canadian Mounted Police Pension Continuation Act, parts II and III;
  • Regulations made by the Governor in Council or the Treasury Board that, in the opinion of the Minister, provide for the payment out of the Consolidated Revenue Fund of a pension to be charged to the Public Service Superannuation Account that is calculated on the basis of length of service of the person to or in respect of whom it was granted or is payable;
  • Currency, Mint and Exchange Fund Act, subsection 15(2);
  • War Veterans Allowance Act, subsection 28(10);
  • Regulations made under Vote 181 of Appropriation Act, No.5, 1961;
  • An appropriation Act of Parliament that, in the opinion of the Minister, provides for the payment of a pension calculated on the basis of length of service of the person to or in respect of whom it was granted or is payable;
  • Tax Court of Canada Act; and
  • Special Retirement Arrangements Act.

The Treasury Board Secretariat has expressed serious reservations about the appropriateness of altering individuals lifetime retirement income for the purpose of debt settlement and is not prepared to recommend amendments at this time. 

The third recommendation related to compelling individuals to file a tax return when they are in default of support obligations: "Where taxpayers are owed a refund of income tax and have not filed a return, the Minister of Revenue should respond to notices of court orders under the Family Orders and Agreements Enforcement Assistance Act and make a demand to file a tax return so that it may be garnisheed to pay arrears of child support."

The authority to make such a demand is relevant to the enforcement of child support because, in cases where a tax refund is due, it could be garnisheed to pay support arrears.

Recent statistics from the Canada Customs and Revenue Agency (CCRA) suggest that many people in default have not filed recent tax returns, thus avoiding trace and locate efforts and the interception of federal funds such as income tax refunds or GST rebates. As of December 31, 1999, there were 103,936 active FOAEA intercept flags. Of these filers, 45 percent (46,604) had not filed an income tax return for the 1998 tax year, and half of the 46,604 non-filers had not filed tax returns for at least three years.

The federal Department of Justice and the CCRA are examining the issue and gathering more detailed information on non-filers.

REVIEW OF THE USE OF CRIMINAL AND CIVIL SANCTIONS FOR SUPPORT DEFAULT

Although it did not specifically recommend this, the Standing Senate Committee on Social Affairs, Science and Technology did consider using criminal and civil sanctions to punish support defaulters. But the Committee questioned whether criminal sanctions would actually be used and noted that, when provinces convict people of defying a court order, these people can be sent to jail. Despite these concerns, the Committee recognizes that making default a Criminal Code offence would send a strong message to defaulters that society takes child support very seriously.

In response, the federal Department of Justice commissioned two studies to examine the policy, operational, and administrative issues involved when people wilfully default on support payments. One study reviewed court decisions on civil sanctions used in default hearings or in other hearings dealing with support default. It also gathered statistics on the number of default hearings between 1990 and March 2000.

In Canada, in addition to provincial civil sanction provisions for not complying with family support obligations, section 215 of the Criminal Code makes it an indictable offence to not maintain children (under the age of 16) after one month, if this endangers the child's life or might permanently endanger the health of the child.

Currently, the provinces and territories each use their own civil sanctions for child support default. These civil sanctions can lead to brief jail terms. There is little information on whether the threat of jail compels defaulting parents to pay. While reported cases suggest certain trends, few cases are reported each year and, furthermore, only those of topical interest are reported.

A second study examined the way other countries use criminal and civil sanctions, particularly the United States, the United Kingdom, Australia, and New Zealand. This study also summarized current civil sanctions that Canada's provinces use to put in jail those who wilfully default on their child support obligations. It also reviewed present Criminal Code sections that may apply in these circumstances.

The author found that Australia and New Zealand do not rely on criminal sanctions for child support default and have no plans to do so. The United Kingdom recently instituted criminal sanctions for not complying with Child Support Agency requests. These three jurisdictions see civil enforcement mechanisms as sufficient to ensure an acceptable level of child support compliance. It is rare that people are jailed in any of these countries for child support default.

The American approach has been significantly different. It is a federal criminal offence to "wilfully" fail to pay child support for a child who lives in another state. The federal and state governments apply criminal sanctions differently. Some states use only civil sanctions, whereas others rely solely on criminal sanctions, and others use both.

Amendments to the Criminal Code to include wilful default of support obligations are not being considered at this time. The federal Department of Justice will examine other means, such as information sharing and education, given the limits to legislative reform. Policy will be developed accordingly.

PART 4: RECIPROCAL ENFORCEMENT OF FAMILY SUPPORT OBLIGATIONS

As more separated parents become more mobile, there is a need for a coordinated national and international approach to inter-jurisdictional support enforcement. The Child Support Initiative has made such coordination a national priority.

FEDERAL-PROVINCIAL-TERRITORIAL RECIPROCAL ENFORCEMENT OF MAINTENANCE/SUPPORT ORDER (REMO/RESO) WORKING GROUP

This working group was established in January 1998 to deal with inter-jurisdictional support enforcement and to make it easier to recognize and enforce foreign support orders. This forum promotes open communication and builds cooperative working relationships among the provinces and territories. It is an important forum for exchanging reciprocity information and forms among the members and agencies that receive, vary, and enforce inter-jurisdictional support obligations. Nationally, it identifies and helps resolve administrative issues affecting inter-jurisdictional files.

Members of this working group work on communications, administrative issues, information sharing, development of uniform forms, and reciprocal arrangements with foreign states. The majority of the items on the work plan are long term in nature and require a coordinated effort to achieve success (i.e. establishment of Canadian national and international case transmittal forms).

The Department of Justice Canada plays a key role in the ongoing activities of the Group by:

  • co-ordinating the development of resource information for national and international use and acting as a repository for this information;
  • supporting and co-ordinating the reciprocity efforts of Canadian jurisdictions;
  • initiating research efforts to identify best practices and identify barriers to inter-jurisdictional support enforcement;
  • maintaining national and international contact lists; and
  • maintaining a reciprocity chart outlining Canadian reciprocal arrangements with foreign states under provincial and territorial REMO/RESO legislation.

OTHER DEVELOPMENTS IN SUPPORT ENFORCEMENT RECIPROCITY

A number of other developments occurred concurrently with the establishment of the FPT REMO/RESO Working Group. The growing caseload of support enforcement programs created challenges to the enforcement of family support provisions, both domestically and internationally. Enforcing inter-jurisdictional cases and the need to improve the existing system by coordinating procedures became a priority for all governments.

At the fall 1999 meeting of justice ministers, the Manitoba minister raised the issue of enforcing inter-jurisdictional support orders. Of concern, was the need to improve the existing system by coordinating procedures among the jurisdictions. Two documents were prepared in response to the concerns raised: the Inter-jurisdictional Maintenance Establishment and Enforcement Protocol and the Operations Principles and Goals (OPG).

The Protocol sets out fundamental principles and asks parties to improve the reciprocal process for enforcing support orders. The justice ministers approved the Protocol at their September 2000 meeting, while a subcommittee dealing with enforcement started talking about the OPG, which outlines a national approach to inter-jurisdictional support issues. In essence, the OPG puts into action the protocol's principles. The Support Enforcement Policy and Implementation Unit worked extensively with provincial and territorial officials on this more operational document, which when adopted will create national standards for inter-jurisdictional enforcement.

PART 5: FEDERAL RESEARCH ON ENFORCEMENT ISSUES

Under the Child Support Initiative, studies were conducted on compliance with support obligations and the way federal enforcement policy and procedures affect the provinces and territories. Activities included:

  • a national study on factors influencing the payment and non-payment of support;
  • a feasibility study on a "new hire" program in Canada to provide better trace and locate information to the Maintenance Enforcement Programs (MEP);
  • helping the Support Enforcement Policy and Implementation Unit by conducting a study on the ways jurisdictions process reciprocity cases; and
  • developing and implementing a Maintenance Enforcement Survey that extracted data from provincial and territorial MEPs on their automated information systems and that reported on the number and type of cases, case characteristics, financial and payment histories, and enforcement activities.

NATIONAL STUDY ON REASONS PEOPLE PAY OR DO NOT PAY CHILD SUPPORT

Based on the Prince Edward Island feasibility pilot study,[533] British Columbia, Saskatchewan, Alberta, and Nova Scotia have since agreed to participate in the national study on reasons people pay or do not pay their child support.

An interim report was based on case files and interview data from MEPs in Prince Edward Island, Saskatchewan, and Nova Scotia. As expected from the Prince Edward Island results, many people do not pay because they can not pay, but in many cases there are other "willingness" factors. The study examines various factors linked to the compliance profiles of the payers. People who pay appear to share certain characteristics:

  • they pay immediately after separation, rather than waiting for a formal agreement on custody and access,
  • they consistently spend significant time with children after the separation;
  • they are actively involved in the leisure activities of the children, as well as in decisions about care, such as decisions about schooling, medical and dental issues, and discipline; and
  • they offer a "real second home" (as viewed by both the payer and the recipient) for the children, even without a formal shared custody arrangement.

Data are currently being collected from the British Columbia and Alberta enforcement programs that will double the sample of parent interviews.  These data should help to test some of the findings to date and point to further research issues.  The final report for this project is scheduled to be available in 2002.

FEASIBILITY STUDY ON ESTABLISHING A NEW EMPLOYEE TRACING PROGRAM IN CANADA

On March 6, 1996, the Government of Canada announced it would help provincial and territorial governments enforce family support orders[534] by looking into a "new hire" program, called the New Employee Tracing Program. This program would flag newly hired or re-hired debtors, then quickly garnishee their income to honour child support obligations. To date, the federal Department of Justice has completed three studies on this idea:

  • it reviewed new hire programs in the United States and in other Commonwealth countries, [535]
  • it surveyed Canadian MEPs on the information they need for federal tracing, and
  • it reviewed federal databases and recommended data sources that could be used to implement a "new hire" program in Canada.

The first study examined existing new hire programs in the United States to see how and why they worked. Here is what it found.

  • New hire programs are one of several enforcement mechanisms available to support enforcement agencies.
  • They should not duplicate other enforcement measures.
  • New hire information must be current, accurate, and quickly transferable from employers to the MEPs, which can then send legal notices and launch collection actions before the debtors move to other jobs.
  • To succeed, the programs had to involve the business community early, communicate with it, and gain its support.

The survey of MEPs' information needs found that the databases currently used to conduct a federal trace have many limitations. Since most data sources are updated only annually, the information provided through the trace is sometimes outdated or inaccurate. Due to this, the MEPs were interested in a national new-employee tracing program to find debtors who have moved to another Canadian jurisdiction or who change jobs often.

The review of potential federal databases focused on sources that provided employer information, that contained information needed to complete a valid trace (such as a valid social insurance number), and that could be shared quickly with MEPs for garnishment or other collection actions.[536] The data also had to be timely, have information on new and re-hired employees, be electronically transmitted and stored, and have reasonable coverage of the Canadian workforce.

The best source of such data is an existing program used by Investigation and Control Operations, part of Human Resources Development Canada (HRDC). This program uses files from the Report on Hires and the Automated Earnings Reporting System to detect and prevent overpayment of employment insurance benefits. Although not every business provides data to the program, since compliance is voluntary, data are national and are typically provided monthly.

A phased implementation strategy is planned which will establish a New Employee Tracing Program in partnership with the maintenance enforcement programs and HRDC. Since the FOAEA legislation already identifies HRDC as a data source, access may be gained to these files simply by amending the regulations. By using an existing enforcement program, start-up costs may be minimized and businesses are kept on side by reducing their compliance burden, since businesses will not have to gather data twice.

We will also develop procedures to transfer information to the MEPs more quickly, to help them secure garnishments.

RESEARCH INTO THE OPERATIONS AND ADMINISTRATIVE PROCESSES OF DOMESTIC RECIPROCITY

In late 1999, the federal Department of Justice agreed to identify key operational and administrative issues, as well as problems and gaps, related to registering and enforcing reciprocal support orders in Canada.

We tested a list of relevant issues and questions in two jurisdictions. Once the key issues and processes were finalized, the remaining provinces and territories were asked to complete a standard questionnaire. The submissions from all jurisdictions were standardized and written up in a report.[537] In a second report, a summary of the provinces' and territories' best practices, and the differences and similarities among jurisdictions' policies and procedures was prepared.

The reports cover the preparation, content, and timing of reciprocity packages; communication between provinces and clients; the handling of provisional orders; transmission of payments; registration, enrolment, and enforcement of REMO cases; and location and tracing activities.

Two reports are scheduled to be available in 2002.

STATISTICS CANADA'S MAINTENANCE ENFORCEMENT SURVEY

In the early 1990s, under the umbrella of the National Justice Statistics Initiative, the Canadian Centre for Justice Statistics (CCJS) began to explore how it could collect national family law data. In 1995, the CCJS and various MEP representatives worked on data requirements and on a collection strategy that would meet the varied needs of family law data users. They approved a set of national data requirements that became the blueprint for current data collection efforts. Since 1996, the CCJS has been working closely with all provinces and territories, providing them with the necessary substantive and technical assistance to implement the survey.

Treasury Board funded the CCJS's Maintenance Enforcement Survey of support orders registered with MEPs. These funds helped MEPs develop their administrative systems so that they could report to the survey. Since 1996, the CCJS has been giving all provinces and territories substantive and technical help with the survey.

The first public release of the survey's data is scheduled for 2002. The release will contain an introductory, analytical report with data tables, and a qualitative report that describes how the MEPs work. This first report uses survey data from five provinces to explain the survey's concepts. The CCJS wants to cover all the MEPs soon and is working with them to do so.

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