[8]In his book Constitutional Law of Canada, Peter Hogg also cites case law which establishes that either absence of the first requirement (Massey-Ferguson Industries v. Govt. of Sask., [1981] 2 S.C.R. 413) or of the second (Capital Regional District v. Concerned Citizens of B.C., [1982] 2 S.C.R. 842) is independently a sufficient basis to have the power be considered non-judicial.
[10]Family Court Clinic: Presentation to the California Judges Association (October 6, 1996, Monterey, California) by Constance Jiminez, Director, Family Court Clinic, Santa Clara County Superior Court, at 2.
[12]See Washington Administrative Code (WAC) 388.14-300 and 388.14-310.
[13] Expected amendments to United States federal legislation will have the effect of removing this automatic three-year review.
[14]The administrative approach versus the judicial-based systems operating in other states.
[15]This document outlines to the parties their respective rights (i.e., right to an administrative hearing within a fixed period of time) and responsibilities.
[16]"Child Support Assessment Application: Notice of Acceptance, Assessment and Registration," Child Support Agency, Australian Taxation Office, reproduced by Jan Bowen, Child Support: A Practitioner's Guide (Brisbane: The Law Book Co. Ltd., 1994), at 135. The employment details are used for the purpose of collection which usually takes place through direct payroll deductions.
[18]California Family Court Services Snapshot Study, Report 3, California Family Court Services Mediation 1991, Client Evaluations of Mediation Services: The Impact of Case Characteristics and Mediation Service Models, California Administrative Office of the Courts, January 1994, at 3.
[19]These measures are discussed in the section of the report entitled "Friends of the Court - Michigan."
[20]This problem is dealt with in some places through mandatory mediation.
[21]Marie O'Neill, Toward Common Ground: Mediation, the Courts, Feminism and Parent Education, A Major Paper Submitted in Partial Fulfilment of the Requirements for the Degree of Masters in Social Work, Vancouver: March 1995, citing various sources, at 80.
[22]Some commentators suggest having the mediator carry out this function could be problematic in either lawyer-based mediation or mediation-arbitration where the impartiality of the mediator is central to the entire process.
[23]It should be noted that in some recommending mediation models, two separate people are often involved in the two separate functions of conducting mediation and then making a report to the court. For instance in the British Columbia family court counsellor program, the policy is that the same counsellor who conducts the mediation session cannot subsequently conduct a custody and evaluation investigation and make a report to the court for the same case - the two functions are clearly separated in this way.
[30] Catherine Morris, Arbitration in Family Law Disputes in British Columbia, unpublished, 1988.
[31]Occasionally, the same judge conducting the Early Intervention Hearing also presides at the trial, should the matter proceed to that level. However, the same judge would not sit in those situations where the judge recommended a matter not proceed and the party or parties decided to go ahead in any event.
[32]Another new pilot project is about to get under way in New Westminster with an aim similar to the Early Intervention Hearings: to reduce delay, expense and entrenched positions. This pilot differs from the Early Intervention Hearing in that it will come into effect when the first interlocutory application is filed and from then on, a designated judge or master will have conduct of all the subsequent steps (included those steps in a "litigation plan") prior to the trial.
[33] The Title IV-D program services are available to the public upon request.
[34]As will be discussed in this report, not all existing mediation services offer mediation for the issue of child support.
[35]There are some notable exceptions to this general rule. For instance, in New Jersey, the required educational background for a hearing officer consists of graduation from an accredited college with a bachelor's degree in psychology, sociology, criminology or a closely related field. In addition, the qualified candidate would have three years professional experience in a public or private social services agency performing family support related functions.
[36]Assembly Bill no. 1058 (February 23, 1995), Introduced by Assembly Member Speier, California Legislature - 1995-96 Regular Session. This is the same legislative proposal which contains provision for family law facilitators to be appointed statewide.
[38]This same rationale could also be applied to the concept of mediation-arbitration, as will be discussed
[39]Kathleen Herron of the Family Court Services Program suggests that to have another individual such as a clerical staff member perform the child support calculations may add an unnecessary layer to the process. According to Herron, the mediator will better grasp the issues involved in regard to child support if he or she is involved from the initial stage of calculating basic amounts.
[41]Currently, the arbitration master system applies only to modification cases and not establishment cases because the modification process was set up more recently.
[42]The Montana arbitration master model boasts a high success rate. According to unofficial figures, only about five out of every 80 cases proceeds to the hearing stage after the arbitration master's session.
[44]It is anticipated that amended legislation based in part on some of these successful programs already operating throughout the state will come into effect in California within the next year or two.
[45]Where the party filing the application cannot afford to pay the filing fees, these fees may be waived. Otherwise, there are not many concessions within the system to address the situation of only one of the parties not being able to afford legal representation.
[46]The Alameda County court-connected mediation service is known to have one of the more comprehensive family evaluation schemes in the state of California. Not only is the evaluation based on the input of both parties but also, the mediator conducts an external investigation comprised of information gathered from various other individuals who have had involvement with the family.
[47]Prior to working in this capacity, the financial mediators receive training on how to use the computer software.
[48]California is a state still firmly entrenched in the judicial tradition. For instance, as will be discussed, the expedited hearing process for dealing with child support as operates in most other states is not in place in all California counties because of a number of factors.
[49]This part of the program is summarized in the section of this report entitled "Education and Information to the Public."
[52]See Child Support Task Force Report, State of California, December 1995, for a comprehensive overview of the task force's recommendations. Some of the more pertinent of these recommendations were summarized in my prior report.
[57]When a divorce petition is filed with the court for instance, the only documentation required is the petitioner's verified statement including basic personal data and general financial information.
[58]Supra note 55, s. 15. This section also states that the employee who conducts mediation on a given file cannot also conduct either the investigation or enforcement functions on that file.
[59]The terminology around what constitutes a "clerk" varies from one jurisdiction to another. In some places, a clerk carries out some quasi-judicial functions; however, for the sake of clarity, the clerks functioning in that capacity will be referred to as quasi-judicial decision-makers.
[60]This information is taken from Position Description, Court Clerk/Recorder, Province of British Columbia.
[61]Phil Bushard, ed., Guidelines for Establishing Court-Connected Mediation, Evaluation and Conciliation Services, 2nd ed. (Association of Family and Conciliation Courts: 1993).
[62]This information is taken from Summary, "The Family Justice Reform Project," British Columbia Ministry of Attorney General, 1994.
[63]This approach contrasts with some other jurisdictions' systems. For instance in Alaska, there is a clear delineation of staff duties and different parts of the child support process are handled separately by different specialized teams.
[64]Julien Payne and Marilyn Payne, Dealing with Family Law: A Canadian Guide (Whitby, Ont.: McGraw-Hill Ryerson Ltd., 1993), at 88.
[66]Having said this, in British Columbia for instance, some of the acting registrars are not lawyers but receive adequate training to enable them to do their jobs in a competent manner.
[68]Dr. Lee Axon and Robert Hann, Working Document: Court Dispute Resolution Processes: The Application of Alternative Dispute Resolution in the Courts, unedited version (Department of Justice, 1995), at 14-15.
[69]In the United Kingdom, child support is first dealt with administratively before all other matters are considered by the court.
[70]Report of the Canadian Bar Association, Task Force on Systems of Civil Justice (C.B.A., August 1996), at 32. At the same time, the CBA also supports the concept of expedited and simplified proceedings where the case involves relatively simple matters. In regard to civil justice disputes, the CBA task force suggests, "the use of expedited and simplified proceedings in defined cases having amounts in issue of less than a stipulated threshold clearly makes financial sense. In addition, however, it has the added advantage of promoting access to the civil justice system, reducing procedural complexity and increasing certainty and clarity in the time lines applicable to proceedings and in the procedures to be followed," at 41.
