REPORT ON FEDERAL-PROVINCIAL-TERRITORIAL CONSULTATIONS
APPENDIX C: REPORT ON QUEBEC WORKSHOPS
Discussion Guide for Quebec
Table of Contents
- Reorganizing parental roles at the time of separation or divorce
- Exercising and complying with access
- Determining child support payments
II. Exercising and complying with access (Sylvie Matteau)
Both parents must comply with the conditions of the written agreement or the custody and access order. Problems arise when parents fail to comply, particularly when they refuse access or do not exercise their access. This can occur for various reasons, especially because of a poor understanding of what the agreement or order requires of the parents. Difficulties related to access can result from relatively minor incidents, when access is refused on a specific occasion (for example, in the event of sickness of the child), or from serious quarrels when parental relations are highly contentious. The fact that the parent-child connection is disturbed because of the failure of a parent to assume his or her access represents a serious problem.
Parental separation necessarily causes a reorganization of parental responsibilities (see Part I. Reorganizing Parental Roles at the Time of Separation or Divorce), even if in civil law it does not imply the loss of parental authority for the non-custodial parent. As for the Divorce Act, it states that unless there is a contrary order, a spouse who is granted access has the right to make inquiries, and to be given information as to the health, education and well-being of the child.
The custodial parent is therefore the one who makes the decisions that affect the everyday life of the child, such as housing, food, daily discipline, clothing and activities. Nonetheless, since these decisions have a serious impact on the well-being and education of the child, the non-custodial parent has a recognized right of supervision over these activities. Therefore, this parent can at all times obtain information related to the child, among others from the school (this information can only be refused by a specific prohibition order), and thus maintain, by the recognized power of supervision, a definite influence on the daily actions of the custodial parent. In cases of joint or shared custody, the parents exercise these responsibilities in turn when the child is under his or her roof.
Finally, another important legal concept should be remembered, that of the best interests of the child. One Superior Court decision defines this as follows:
"One can say that the best interests of the human being is none other that the measure of his or her worth. Now the worth of a person generally includes four aspects: the physical or material, the affective or emotional, the intellectual or educational, and finally, the moral and religious or spiritual. The culmination of all of these aspects gives a being what one can call his or her particular culture."
It goes on to attempt to determine an order of priorities for these components:
"At the level of values, it is a constant that the physical aspect is subordinated to the emotional, the emotional to the intellectual, and the intellectual to the moral and to the spiritual. But at the level of the concrete and everyday realization of these objectives, the physical aspect necessarily has priority over the emotional, the emotional over the intellectual, and the intellectual over the moral and spiritual. This is particularly true for the child of a tender age."
The problem is therefore to determine how it would be possible to promote the observation of obligations related to access in a way that would best serve children's interests.
In order to do this, we present an overview of the services and resources presently available to parents who are experiencing this kind of difficulty.
Whatever their various approaches, the provinces and territories provide a number of mechanisms aimed at ensuring the effectiveness of access. Some are stipulated in the legal process; others correspond rather to services available for persons under the court's jurisdiction.
MECHANISMS PROVIDED BY THE LEGAL SYSTEM
Among the elements which are part of the legal process, one finds contempt of court, the request for an amendment of a custody order, psychosocial evaluation, examining the child before the court and the child's representation by a lawyer, as well as financial measures.
CONTEMPT OF COURT
Whoever is found in contempt of court, that is to say, one who contravenes a court order, is liable for a fine not to exceed $5,000 or imprisonment for a period of up to one year. This judgment is rendered on proof of the allegations.
This procedure belongs to the criminal field and is not appropriate for family needs. Moreover, judges only exceptionally resort to penalties of imprisonment because they are often contrary to the best interests of children.
Contempt is a procedure very seldom used, therefore, since the court does not have the latitude to correct the situation. It only decides on a possible fine or on potential imprisonment as a punitive measure.
AMENDING THE CUSTODY ORDER
The other option at the disposal of the parent who encounters difficulties in connection with custody or the exercise of those rights is to apply to amend them. The lack of cooperation of the other parent, or his or her negligence in the exercise of access, and the best interests of the child to have a stable relationship with both parents or to develop in an environment without destructive disputes are then alleged. During such proceedings, it is usual to request a psychosocial evaluation.
THE ORDER FOR PSYCHOSOCIAL EVALUATION
The court can, with the consent of the parties, request an expert opinion in order to try to understand the nature of the problem. This expert evaluation service, which is attached to the Superior Court, acts in an impartial manner with respect to the two parents. It is a matter of a tool permitting the court to identify the best possible solution in the circumstances; its sole goal is to determine what is best for the child concerned.
EXAMINING THE CHILD
The court can also examine the child, even without the presence of the parties, as long as they have been informed. In this case, the child may be accompanied by a person capable of assisting and reassuring him or her. However, this practice is not widely used. The age of the child, his or her apparent maturity and ability to express himself or herself are factors that the court will take into consideration. Although, the court does not place the decision in the hands of the child (and it is important that children understand clearly that this responsibility has not been placed on them), a conversation with the child can help to enlighten the court in its deliberations.
COUNSEL FOR THE CHILD
In more delicate situations, it is possible to have a legal representative named for the child. When the court establishes during the proceeding that the child's interests are at stake and that to ensure their protection it is necessary that a different lawyer from that of the parents be appointed, it orders an adjournment of the hearing until the child be thus represented.
In all of their deliberations concerning custody or access, the principle of the best interests of the child is the determining factor for judges. It is generally agreed that deciding on questions related to custody and pronouncing on a financial or material matter are two very different things.
OTHER INCENTIVE MECHANISMS OR PENALTIES
In the same way, the obligation to provide support is not tied to access or the exercise of this right, for it is considered that such an association would generally be contrary to the best interests of children. Nonetheless, some provinces have adopted a mechanism for monetary compensation in cases where access is regularly and repeatedly ignored or disregarded. This system does not exist as such in Quebec. However, the courts have already accepted the idea that the non-exercise of access can have some effect on the amount of the support payment when it causes the custodial parent "undue hardship" within the meaning of the regulations for determining child support payments.
Finally, it must be emphasized that according to widely held opinion, it seems that it is not usually in the interests of the child to force reluctant parents to visit their children.
Moreover, there are a variety of other ways to deal with problems relating to access. These extrajudicial methods include mediation, supervised visits, and programs on parenting after the breakup.
In Quebec it is possible for parents who want to designate or amend access, and who want to resolve the difficulties that they are experiencing in this regard, to take advantage of certain free services offered by an accredited mediator.
Under Quebec law, the court can even, for a given period of time, suspend the hearing and issue a mediation order. This is the only circumstance where the parties are required to go to mediation. In other cases, the lawmakers have made only the first stage of mediation obligatory, that is, the information and evaluation session.
Mediation is a technique by which an impartial third party assists spouses to discuss and negotiate an equitable agreement dealing with the consequences of their separation and, more specifically, the sharing of their parental responsibilities. The mediator does not act as a judge of the situation or the options suggested by the spouses. They alone are in control of the content of the discussion; the mediator is only in charge of the process.
The intervention of a mediator has supported numerous Quebec parents for more than twenty years. This method has the advantage of introducing a minimum amount of communication concerning the children. Mediators permit the parties to distinguish between their spousal relationship, which is ending, and their role as parents, which endures.
During mediation, parties can discuss the methods and criteria that will govern future decisions concerning their children, which is beneficial for giving concrete expression to the concept of the exercise of parental authority. Mediation offers parents a neutral forum in which to reflect on the difficult problem of the sharing of their authority to make decisions and to supervise their children, who are now living under two roofs. It provides a place for discussion, establishing detailed arrangements, the exercise of parental authority and access.
The goal of this approach is to give the parents a sense of responsibility for decisionmaking. This approach has several important influences on the agreement reached by the parties. First, and above of all, studies have demonstrated that even more than the separation of the parents, it is the way in which they separate that can gravely affect the child. The degree of conflict that children witness and its repercussions are the most important factors in their adaptation and acceptance of their new family situation. Mediation avoids putting the parties in an adversarial position. It is based on a model of cooperation that has a certain impact on the level of confrontation that the parents and, consequently, the children will experience.
Secondly, the agreement will suit the particular circumstances of the family better. It is generally more detailed than a court order and often takes into consideration some future possibilities, which the court cannot do. For example, what will happen when the boy at seventeen years old wants to live with his father, who lives a few minutes away from the C.E.G.E.P.?
Thirdly, the agreement worked out by the parties with the assistance of an impartial third party provides less chance of misunderstanding the terms used and the intention behind the words, since it is the parties themselves who have chosen and expressed them in a final written text. There are therefore fewer possibilities for disagreement during the implementation.
Fourthly, and perhaps even most important, it seems that the agreements arrived at through the intervention of mediation are better complied with than court orders. Of course, a majority of these agreements have been entered into by parents having a minimum of communication and who are agreeing (at least in general) on measures related to their children. Even so, statistics and longitudinal studies have a tendency to show that compliance is nearly as great in high-conflict relationships. Researchers explain this phenomenon by the fact that the parties themselves are deciding on the terms of custody and access during the process of mediation, and that they respect their own decisions or their own compromises more than if the solution is imposed on them by a third party, as in the case of a judge.
On the other hand, there are doubts that this mechanism is appropriate in situations of family or spousal violence or in extremely high-conflict cases, for mediation requires a certain degree of good faith and willingness on the part of the parties.
When access is problematic because of a violent situation and the safety of the spouse or the child is at stake, or because access has been interrupted or there is too much conflict, supervised visits can constitute a valid way of permitting the children to maintain contact with the other parent.
It is sometimes simply a matter of an exchange point ensuring a neutral ground for the transfer of the child from one parent to the other. The daycare or a family member (grandparents, a brother or sister) can be an important resource, but a totally neutral place is often required. The parents can be called upon to contribute financially to this kind of service.
Indeed, these services are provided by community or non-profit organizations, which are often not financially secure.
Programs on parenting after a breakup
Seminars on parenting after a breakup (two two-hour seminars) are presently offered free to clients of the Service d'expertise psychosociale [psychological and psychosocial evaluation service] and of the Service de médiation familiale [family mediation service] at the Montreal court house. Most of the other Canadian provinces also have some variation of this type of program.
Parents learn how to better understand their children's reactions to their separation as well as their own adult reactions. Just like mediation, this program attempts to assist parents in making the distinction between their role as parent and their relationship with their spouse. It provides information as well as suggests ways of communicating better and organizing new family relationships. It gives parents the message that their children need to get across to them. Finally, it informs parents about the different resources and support services that are available to them.
III. Determining child support payments (Jean-Marie Fortin)
Rules for determining child support payments have been in force since May 1, 1997. On the same date, tax exemption measures came into effect, by which support payments for children are no longer deductible from the taxable income of the parent paying support and are no longer included in the taxable income of the parent receiving the payment.
The Report of the Follow-up Committee on the Quebec Model for Determining Child Support Payments was tabled in the National Assembly on May 3, 2000. It gives a progress report on the three years that the new rules have been in application. The report makes a certain number of recommendations directed at improving the system and it raises serious questions, some of which are taken up in the following text.
Before beginning to discuss the various topics, it is important to recall the salient points of the Quebec system for determining child support payments, which applies to all cases in Quebec where the amount of a support payment must be determined, except in divorce situations where the spouses or former spouses reside outside the province. (In this context, but only in this context, there are federal guidelines that must be applied.)
BASIC PRINCIPLES OF THE MODEL
The following constitute the basis for the Quebec model for determining child support payments:
- To affirm the common responsibility of parents regarding their children;
- To ensure that children have their needs covered on the basis of their parents' ability to pay (payments are determined according to the needs of the child and the incomes of the parents);
- To share between the two parents (and not the non-custodial parent only) the responsibility for financial support of the children in proportion to their respective incomes;
- To consider as a priority the parent's support obligations relative to expenses that are in excess of basic essential needs;
- To support the equal treatment of all of the children born of different unions in relation to their right to support as much as possible; and
- To maintain as much as possible incentives for low-income parents to fulfill their support obligations to their children.
The calculation of support payments is essentially based on the following data:
- the income of both parents;
- the number of children;
- the periods of custody; and
- if applicable, certain costs related to the needs of the children.
The model was designed in order to ensure that the needs of children are covered and that the support payments determined are sufficient and predictable, all while taking into consideration the incomes of both parents. It attempts to make the determination of child support payments easier, quicker and less costly.
These results can be obtained through the various rules stated in the legislation and regulation, which are supplemented by the form and the table, tools that are practical and user-friendly.
These precise standards make it possible to establish, from the disposable income of the two parents and the number of children, the basic support contribution from the parent that is presumed to correspond to the needs of the children and the capabilities of the parents. Proof of need is therefore no longer required for the purpose of covering basic needs.
This contribution can be increased in order to take into account certain child-related costs, such as custody costs, post-secondary studies and special expenses. These costs must be agreed upon or proven. They can be added if they are in accordance with the definition in the regulation and to the extent that they are reasonable with respect to the needs and capabilities of each person.
It was hoped that the introduction of these rules would reduce confrontations between parents, as well as the delays and costs involved in determining child support payments. The model provides all the tools needed for parents to calculate the support payment to be paid themselves.
The model is flexible enough to assist parents to agree on a different amount from that calculated according to the rules. However, they will have to clearly state the reasons for this difference in their agreement and the court will have to ensure that the agreed-upon amount provides sufficiently for the child's needs. If there is no agreement between the parties, it is necessary to prove that the determined support payments would cause undue hardship for one or the other of the parents in order to set aside the model. Also, the court can increase or reduce the support payments, taking into account the value of a parent's assets or the resources of the child.
The Follow-up Committee made numerous recommendations, some of which encouraged the government to pursue the reports and consultations on some of the more controversial issues. Within the framework of the present consultation, three of these are noted: support obligations resulting from other unions (recommendation 26), the cost of joint custody (recommendation 34) and support for a child of full age (recommendation 41). The following text presents the commentaries of the Follow-up Committee for each of these issues, with specific questions added.
That the ministère de la Justice pursue the Committee's investigation of the various solutions regarding support obligations arising from other unions.
On average, the number of children covered by the application for support is 1.65, with the majority of cases involving one child (49%) or two children (38%). (Please see Section 3.2.6 in Chapter 4.)
We have no clear data concerning the number of cases involving children from other unions. The only data we do have in this regard can be found in Section 3.2.7 (explained and unexplained agreements) and Section 3.3 (undue hardship) of Chapter 4. These data are incomplete, making it impossible for us to be more precise about the issue.
In their responses to the survey, several lawyers and a certain number of mediators have pointed out that the model should take children from another union into account in the calculation of child support payments. Moreover, with respect to the principle that the model should, as far as possible, ensure equal treatment for all children from various unions regarding their right to support, it would appear that fewer than 50% of the responding lawyers consider that this objective has been reached, whereas over 75% of the mediators and special clerks of the court do believe that the principle has in fact been respected.
In addition, the committee is in agreement with trends in the case law indicating that children from other unions are not meant to be covered by the support application since the table is based on children from the same union. Hence it follows that Line 400 is meant to include only the children of the two parents covered by the form.
The committee is also of the opinion that the obligation of support arising from earlier unions is not covered by the calculation procedure established in the Child Support Determination Form; rather, as the case law confirms, it is included under the notion of undue hardship that can be argued under article 587.2, para. 2, of the Civil Code of Quebec.
On the other hand, the number of contributions and letters that the committee received on this issue proves that it deserves special attention: should the model, and especially the Child Support Determination Form, in a simple and fair manner, take into account other obligations of support?
To ask this question is, in fact, to raise doubts about one of the basic principles of the model, namely that of ensuring, as far as possible, equal treatment for all children from various unions with respect to their right to support.
The following economic argument seems irrefutable: from the beginning of the relationship, the disposable income available to a second union is always reduced by the support paid to the first spouse. Hence, how can it be claimed that each union must benefit from the same disposable income? Doesn't it only stand to reason that calculations of disposable income at the time of the second union's breakup should automatically take into account any previous obligation(s) of support since the sums paid for support have never actually been available to members of the second union?
One of the reasons why it has been difficult to adopt simple remedial measures in this regard lies in the fact that earlier support payments may or may not have been deductible, or even that some have been and others have not, depending upon the case at hand. Disposable income is, for all intents and purposes, gross income and thus is subject to taxation, and the table does in fact take tax consequences into account in determining the basic parental contribution.
For some practitioners, the notion of disposable income used in the Child Support Determination Form (Line 306) does not entirely reflect a certain economic reality; for them, true "disposable income" should be net after-tax income, i.e. excluding social security and income tax deductions, as well as -- in the present discussion -- earlier obligations of support.
Before examining this argument more thoroughly, it is important to keep in mind a few of the basic notions found in the model. We have already addressed the concept of income and the way it is handled in the table, where the table provides a list of gross incomes that only take expenditures for goods and services into account. It should also be recalled that even though the disposable income appearing at Line 306 represents, for all intents and purposes, gross income (at least from an income tax standpoint), the sum has already been reduced by a basic total deduction of up to $18,000, not to mention deductions for union and professional dues, if applicable. Hence this sum does accurately reflect, for purposes of the model, the parents' disposable income
The committee carried out certain simulations as a means of clarifying its views concerning other obligations of support.
One very simple solution would be to add a line to Part 3, between lines 303 and 304, where the user could record earlier obligations of support. Accordingly, the figure appearing at Line 304 would include these obligations of support, and a lower disposable income would thus be used in calculating the basic parental contribution to be provided by the second union.
This seems like a simple solution, but certain problems do nonetheless arise.
First of all, questions might be raised concerning the fact that certain earlier obligations are deductible (usually those pertaining to former spouses), while others are not (usually child support payments), and that the two types of obligations may also be assumed simultaneously (child support payments and support for a former spouse, or obligations of support still subject to tax treatment).
In cases such as these, should a distinction in fact be made between the two? If so, should the non-deductible support contribution now become subject to tax treatment, in keeping with Part 3 (that deals with before-tax amounts), or should deductible obligations of support be made non-taxable, on an equal footing with sums appearing in the table that are determined using non-taxable amounts? The first solution seems to be the logical one. It does, however, include calculations that can perhaps only be carried out by those having access to special software. Also, it goes against the current principle according to which child support payments should be removed from the tax system.
The second problem may be stated as follows: Should all obligations of support arising from other unions be taken into account, or only those pertaining to child support?
In this regard, it is the view of the committee that all earlier obligations of support must be considered, not just child support obligations. In fact, given that calculations of parental income must include
"support paid by a third party and received for one's own needs" (Line 204), on the basis of what principle could support paid to a third party and received for personal needs in fact be excluded?
Another consideration should be added here. If a parent is required, when calculating obligations of support toward children from a second union, to include in his or her income at Line 204 support received for personal needs from a support payer from an earlier union, what reason could there possibly be to deny the payer the possibility of deducting both child and spousal support payments?
In order to promote the objective of equal treatment of children, the courts have ruled that children from all unions should be treated the same way, determining at the same time that the same income of the parent common to both (or several) unions should be used for purposes of calculating support.
The following question must be addressed: Why did the lawmakers include Line 204 when indicating how to calculate parental income? As things currently stand, the parent covered by Line 204 is no longer on an equal economic footing. This parent's income, for purposes of determining his or her obligation of support toward children from the first union, does not include any personal spousal support received, whereas when calculating the income of the second union, the latter support payments must be taken into account. Some would argue that if such support is awarded to cover personal needs, it should not be included when calculating the needs of children from the second union.
The committee considers that by including Line 204 in the Child Support Determination Form, the lawmakers basically established an order of priorities pertaining to various unions over time.
This line may also have been included to reflect the description of income found in what was once Form II of the Quebec Superior Court (now Form III), which was used to determine the support needs of both parties, the spouse and the children, and which is still used to establish the spouse's needs only.
The fundamental notion of personal responsibility includes accepting responsibility for the consequences of one's actions, and these consequences do not, as it were, disappear over time. Thus, the very act of choosing a spouse has definite consequences which, if the relationship should collapse, lead to certain obligations. The same holds true when a couple chooses to have children: obligations remain in the wake of any breakup.
In time, these obligations will be set down in an agreement or a support order. If one of the parties subsequently chooses to form a new union, he or she must continue to assume the consequences of the earlier breakup. Hence, the latter will enter into any new relationship with a disposable income lessened by this obligation of support.
The new responsibilities entailed by a second union may only be taken on while respecting, and within the limits imposed by, the obligations arising from the first. The new partners, and any children they may have, will have to depend on a disposable income reduced accordingly.
Over the course of its mandate, the follow-up committee debated whether it would be appropriate to add new rules to the model so that parents might deduct amounts or a percentage of amounts paid in order to fulfil other obligations of support besides those covered by the application in question.
This may be the opportune moment to try to discern the scope the lawmakers intended to give one particular objective of the model, namely that of providing, as far as possible, equal treatment for all children from various unions with respect to their right to support.
Does respecting the latter principle mean that the monetary value of each support obligation must be equal? It may be argued that whereas everyone has the same right to apply for support, the level of support actually awarded may nevertheless depend upon the parents' ability to pay and their obligations with respect to other unions.
The committee has therefore studied the possibility of introducing specific rules and thus limiting the discretionary power of the court, as it is currently outlined in article 587.2 of the Civil Code of Quebec with reference to undue hardship. Committee members believe that it is important, in order to guarantee the on-going fairness of the model, to ensure that all the children's needs are met, while considering possible difficulties the support payer may face in fulfilling all of his or her obligations.
A review of the case law reveals a certain trend whereby judges, in the current legal context, are reluctant to give more importance to one union over another. Thus a number of judges refuse to establish a scale of priorities as it concerns various unions and the children from these unions.
It may nevertheless be advisable to leave a certain discretionary power in the hands of the court, other than that based on the notion of undue hardship, in order to allow judges to reduce support contributions in light of support obligations linked to other unions. In any case, studies looking at various solutions to the problem raised by such support obligations should definitely be pursued.
[Excerpt from the "Rapport du Comité de suivi du modèle québécois de fixation des pensions alimentaires pour enfants"]
That 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.
THE IMPACT OF SHARED CUSTODY ON THE DIVISION OF SHARED EXPENSES
While the mechanism established in the form does not in itself cause any problems, the story is very different with respect to how it is applied by parents once the decision to adopt this type of custody arrangement has been made. In this regard, it is important to mention a few notions that might better explain the impact of shared custody on the division of shared expenses.
In sole custody cases, support contributions cover all expenses related to child care (housing, food, clothing, education, health, recreation, etc.). It follows that the non-custodial parent is only responsible for expenses that directly result from the exercise of his or her access rights. Furthermore, child care expenses, post-secondary education expenses and special expenses, as recorded at Line 406 of the Child Support Determination Form, are not open to interpretation since they are added to the level of support to be paid based on the disposable income of each parent (Line 407). Thus, in all cases, the parent receiving support must also cover these expenses, regardless of the custody arrangement, unless arranged otherwise in a specific agreement between the parties. For instance, it could be arranged that the non-custodial parent pay certain fees directly to a third party, such as a private school, a day care, etc.
On the other hand, in shared custody cases, the question of who should defray certain expenses is often open to interpretation. At issue here are shared costs linked to the purchase of certain goods and services, i.e. expenses which are incurred on a recurring basis (the purchase of clothing, health-care expenses, registration costs for a sporting activity, etc.) and are shared by the two households. Some contend that these expenses, like special expenses, should be covered by the parent receiving support, whereas others would argue that these costs should be divided according to the income of each parent.
The mechanism for dealing with cases of shared custody, found in Part 3 of the form, is based on the principle that support is paid to the lower-income parent. Support payments serve to make up for the gap between custody expenses and the basic parental support contribution so that each parent has the necessary resources to cover expenses related to child care. It follows that, once the level of support is determined at Line 534 ("Annual support payable"), shared expenses, as defined above, should be covered by both parents according to the custody time of each one. These expenses are independent of the parents' income. Support payments serve to balance out the cost of child care according to custody time so that each parent may then cover his or her share of expenses related to child care.
Thus the Regulation stipulates that each parent must cover these expenditures, when they arise, in proportion to custody time (40% to 60% according to the case); one party is then reimbursed by the other for these expenses according to a pre-determined arrangement. In practice, some people find this way of proceeding cumbersome and inappropriate. They are, however, free to establish their own payment system so long as it remains within the framework of the regulation. For instance, the parents might together estimate the annual cost of clothing, after which one party would give the other a lump sum covering his or her share of these expenses (40% to 60%, as the case may be). The parent having received this payment would subsequently be responsible for all clothing purchases.
BOTH SOLE AND SHARED CUSTODY INVOLVING TWO OR MORE CHILDREN
According to the statistics, parents with two or more children having chosen an arrangement whereby at least one parent has sole custody of at least one child and both parents have joint custody of at least another child represent 10% of all sample cases. In 7% of all cases, the parents have opted for sole exclusive custody of at least one child each, while 3% of parents share custody of two or more children.
Now then, the table was designed, and quite rightly so, to reflect the assumption that the cost of having two or more children is not twice or three times, etc. the cost of caring for only one child, provided obviously that the children in question live in the same home. The table takes into account economies of scale and the relative weight in terms of expenditures for each member of the family unit.
This reasoning cannot be applied in cases where at least one parent has sole custody of at least one child or both parents have joint custody of two or more children since each child is living in a different place. In all such cases, shouldn't calculations of support be based on the amount listed in the table corresponding to the real situation of each parent, i.e. the actual number of children living with each one?
Here is an example of what this might mean: if the family income for purposes of calculation is $40,000, and each parent has sole custody of one child, the annual level of support would currently be pegged at $3,855 per child, for a total of $7,710. However, since each party must maintain a residence equipped to receive a child on a full-time basis, it cannot be claimed that either of them is benefiting from economies of scale. Thus it only stands to reason that the amount provided by the table for a first child should be applied in the case of each party, i.e. $5,150 each, for a grand total of $10,300.
[Excerpt from the "Rapport du Comité de suivi du modèle québécois de fixation des pensions alimentaires pour enfants"]
That 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.
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 article 587.1, 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, 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, in the main, 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 review the situation so as to determine whether or not the model should apply to dependent children who have attained the age of majority in civil law cases.
[Excerpt from the "Rapport du Comité de suivi du modèle québécois de fixation des pensions alimentaires pour enfants"]
FEDERAL-PROVINCIAL-TERRITORIAL CONSULTATION ON CUSTODY, ACCESS AND CHILD SUPPORT
Hôtel Québec, June 8, 2001
3115 Laurier Blvd.
Sainte-Foy, Quebec G1W 3Z6
Tel. : (418) 658-5120 - 1-800-567-5276
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