
On May 1, 2006, some minor amendments to the Federal Child Support Guidelines came into force.
Highlights of the amendments include:
"extraordinary"for determining if certain expenses are eligible special expenses under the Guidelines;
The amended child support tables replace the original tables from 1997 and have been updated to reflect 2004 tax rules.
A new publication, entitled The Federal Child Support Guidelines: Step–by–Step, has been distributed, along with the updated tables, to the provincial and territorial governments. The new booklet replaces three previous publications on the Guidelines.
For more information, or to get copies of the booklet or the tables, you can call the Department of Justice Canada's Family Law Information Line at 1–888–373–2222, or visit the Internet at http://canada.justice.gc.ca/eng/pi/sup-pen/index.html.
The second stage of the spousal support project was completed with the release of The Spousal Support Advisory Guidelines: A Draft Proposal, in January 2005 (available at http://canada.justice.gc.ca/eng/dept-min/pub/ss-pae/project/index.html). Since that time the project directors, Rollie Thompson and Carole Rogerson, have:
In addition:
The most important court decision is that of the British Columbia Court of Appeal, in Yemchuk v. Yemchuk, (2005) B.C.J. No. 1748, 2005 Carswell BC 1881, 2005 BCCA 406. The Court understood "[the Guidelines'] intention and general effect is to build upon the law as it exists"
, and not to change the law. For lawyers, importantly, the Court characterized the status of the Guidelines by saying "they do not constitute evidence, but are properly considered as part of counsels' submissions."
For a list of these decisions and some commentary, please see, The Advisory Guidelines Fourteen Months Later: Cases, Criticisms and Responses, Revisions, available on the Canadian Bar Association website: http://www.cba.org/CBA/sections%5Ffamily/doc/ssag20months.doc
The next stage is one of more systematic feedback with the goal of a revised version for summer 2007.
An updated registration of divorce proceeding form has been in use since October 2005. The registrar of the court sends the form to the Central Registry of Divorce Proceedings (CRDP) when an application for divorce is filed. The form is used to confirm that applications for the same divorce have not been started in more than one jurisdiction. The CRDP checks its database for any duplication. If there is no duplication, a clearance certificate is issued which allows the action to proceed. If there is duplication, the CRDP advises the courts and one action must be discontinued.
Other changes to the CRDP form will help improve national data collection and reporting, which is currently done for Statistics Canada as part of its Vital Statistics series. Information from the CRDP form is used to monitor national divorce statistics on such things as divorce rates and provide general information on the nature of custody arrangements.
Alberta's new Family Law Act was proclaimed into force on October 1, 2005.
The Act covers:
It encourages appropriate solutions by:
"win/lose"custody and access with the concept of distributing parenting responsibility using parenting agreements or orders; and
The Act streamlines and modernizes Alberta's provincial family law and replaces all or part of five outdated statutes. The Act does not cover children's property, child welfare matters including adoptions, the division of matrimonial property, or divorces.
The Act improves access to justice by allowing most family matters to be dealt with in either Provincial Court or the Court of Queen's Bench. Furthermore, a single, forms-based application procedure that can be used for applications in both Provincial Court and the Court of Queen's Bench has been implemented. The new application forms and instruction guides are available on the Alberta Courts website.
As part of the implementation, and to improve Alberta's family justice services and programs, Legal Aid Alberta has agreed to offer more equitable coverage for family litigants in Provincial Court on a pilot basis. Legal Aid is partnering with Justice to test early case evaluation as a means of reducing the need for legal services. In addition, early intake and assistance for litigants who do not have lawyers has been expanded, and information services for all family law litigants has been enhanced. The Parenting After Separation Seminar has been expanded to more locations and our mediation, information, and court assistance services are better coordinated under the banner "Family Justice Services"
.
Court Fees, including a $200 filing fee, have been eliminated for many family matters in the Court of Queen's Bench. There continue to be no fees for filing in Provincial Court. The capacity of the Court, especially the Provincial Court, to provide "same day"
court orders has been increased. Our clerks will, as much as possible, be supporting the concept of "one file — one family"
to limit duplication and confusion that occurs with multiple court files.
More information about the Family Law Act and Family Justice Services is available on the Alberta Courts website at www.albertacourts.ab.ca.
The B.C. Ministry of Attorney General is reviewing the Family Relations Act. The goal is to modernize the law and support co-operative approaches to resolving disputes in an act that is easy to read and understand.
The multi-year review will look at the content and organization of the Family Relations Act as well as ways that the Act can reflect the themes of the Family Justice Reform Working Group's report, A New Justice System for Families and Children. For more information about the review, see www.ag.gov.bc.ca/justice-services/.
The Working Group's June 2005 report recommends a system that helps families resolve their own disputes and recommends changes to B.C.'s family justice system to make it more accessible, effective and focused on the needs of children and families. For more information about the report, please visit the Justice Review Task Force website at www.bcjusticereview.org.
The Attorney General has endorsed the general policy principles underlying the report's recommendations. To better understand the implications of the recommendations, the Ministry of Attorney General has initiated research on a number of topics, including:
The Justice Review Task Force is an on-going collaboration between government, judges and lawyers, working together to help make the justice system more responsive, accessible and cost-effective.
Members of the Family Justice Reform Working Group included judges from the BC Supreme Court and the BC Provincial Court, family law lawyers from across BC and representatives from the Ministry of Attorney General and the mediation community.
Manitoba Justice opened a Child Support Recalculation Service (CSRS) on July 4, 2005. The service recalculates child support orders based on updated financial information. This means the amount of court-ordered child support may be reviewed annually and changed if there is a change in the income of the payor.
The Recalculation Service Office will give parents information about the court application process to have an order enrolled with the service.
This service only applies to recalculation of child support orders under The Family Maintenance Act in Manitoba. Recalculations under the federal Divorce Act are currently being discussed with the federal government.
To be eligible for recalculation, both parents must live in Manitoba and one of them must get a court order authorizing the service to recalculate child support at regular intervals. Eligible child support orders must be for a table amount — an amount fixed by using the child support tables — and is generally based on the actual income of the payor. The table amount of child support and some special or extraordinary expenses such as daycare can be recalculated if directed by the court.
A recalculated order takes effect 31 days after both parents are advised of its terms. A recalculated order cannot deal with support prior to that date, nor can it deal with any arrears of support.
If a parent opposes the recalculated support payments in a recalculated child support order, he or she may apply for a variation of the original (not the recalculated) child support order within 30 days after both parents are notified of the recalculation. Where the variation application is subsequently withdrawn, the paying parent becomes liable to pay the recalculated amount on the same day he or she would have had the variation application never been initiated.
Yukon Justice has introduced a series of step–by–step booklets to help parents with the basic court procedures in child support matters. The series, entitled "Family Law Court Procedure Booklets for Self-Represented Litigants,"
is available on the Yukon Justice Internet site at www.justice.gov.yk.ca. In addition, a Maintenance Enforcement Program (MEP) officer can now provide one-on-one assistance, reviewing an application for completeness, answering questions concerning the court process and helping parents collect child support once a child support order or agreement is in place.
The MEP has also introduced two new products to help their clients and people who want information about their services: MEPline and direct deposit for clients. MEPline, a telephone information service for MEP clients, provides basic information on the Yukon MEP as well as a secure method of providing clients with specific information on their cases at any time of day. MEPline also allows MEP officers more uninterrupted time to take collection action on support orders. MEP now also offers direct deposit of support payments to client bank accounts.
Yukon Justice has initiated these projects with assistance from the federal Child-centred Family Justice Fund.
Human Resources and Social Development Canada and the Government of Manitoba are co-operating in a three year pilot project to help separating and divorcing couples split their Canada Pension Plan (CPP) credits.
Since October 1, 2005, information respecting CPP credit splitting in family law proceedings has been given out differently in Manitoba. When a spouse or common-law partner begins a family law proceeding through the Manitoba Court of Queen's Bench, they will be given copies of both an Information Notice and a simplified Request Form respecting CPP credit splitting. They will keep one copy of each document and will be required to serve the extra copy of each document upon the other party in their proceeding.
The documentation will provide important information on CPP credit splitting to parties at the outset of family law proceedings and will also provide an easier way to proceed with requests to split a credit. The pilot project is expected to increase the take-up rate for CPP credit splitting between spouses and common-law partners significantly.
With funding from the Child-centred Family Justice Fund, Saskatchewan Justice has created a CD–Rom version of a parenting after separation and divorce program for Aboriginal families, entitled Kids in the Middle: Parenting After Separation for Aboriginal Communities. The curriculum was originally developed in British Columbia with input from other jurisdictions, and was modified for the CD–Rom.
At the same time, British Columbia received funding for a train-the trainer pilot project, in how to deliver the Kids in the Middle curriculum. As these projects were complementary, Saskatchewan Justice partnered with the Law Courts Education Society of British Columbia. Two training sessions were held in northern Saskatchewan in February, 2005. People who work with families experiencing separation or divorce, such as Elders, Native Court workers, school staff, health clinic staff, or parent aides were trained as intermediaries. These trained intermediaries are able to provide support to families, help parents use the CD–Rom program, and make referrals to services or sources of further information. The CD-Rom will also contain a resource list and useful websites. It is expected that parents who work with trained intermediaries, or use the CD themselves, will learn about other services they may be able to access, such as the toll-free family justice line.
Saskatchewan Justice reviewed and consulted with Aboriginal people and organizations in the province regarding the Kids in the Middle program.
The availability of a CD-Rom version of the program will ensure it is accessible in those communities where Family Justice Services are not able to offer Parenting after Separation/Divorce programming regularly. The program is also intended to be culturally relevant for Aboriginal and northern communities. It will also provide information about family law legislation and services. The CD–Rom was officially launched in March 2006.
Recent changes at the Family Responsibility Office (FRO) in Ontario include a dedicated client service unit that handles administrative and general inquiries. This change allows enforcement staff to deal with more complex enforcement calls. The FRO now answers more calls and has seen a decrease in wait times.
Legislation passed in June 2005 strengthened the FRO's enforcement powers, including its authority to demand more information about defaulting payers to trace and locate them.
The FRO's website (www.theFRO.ca) has been updated with information to help employers understand their role in making payment deductions. New fact sheets with more information about the FRO are now available in 25 different languages, including French and English.
The FRO also plans to introduce a case management model with supporting technology. Case management will help the FRO become more proactive and build better working relationships with its clients.
The FRO is responsible for enforcing child and spousal support orders issued by the court, for enforcing separation agreements and domestic contracts filed with the courts, and for ensuring compliance with support orders from reciprocating jurisdictions.
Prince Edward Island's Maintenance Enforcement Program (MEP) launched an interactive website in July 2005. The website available at https://eservices.gov.pe.ca/meps/index.jsp, gives clients ready access to information about the MEP, enrolment, case management, enforcement, tracing, and client relations through the online transfer of information and data.
The site will reduce the number of phone calls and in-person enquiries the program handles. Each MEP client and the enforcement staff of other maintenance enforcement programs have been given a user name and password to obtain information about an individual's case.
The PEI MEP developed the site to increase client accessibility to services and to enhance the links between PEI's program and maintenance enforcement programs in reciprocating jurisdictions. This project received funding from the Department of Justice Canada Child-centred Family Justice Fund.
On May 1, 2006, changes to Prince Edward Island's Child Support Regulations Guidelines came into force to coincide with the coming into force of the Federal Child Support Guidelines amendments. Prince Edward Island's Regulations were amended to repeal the existing Provincial Child Support Tables for Prince Edward Island and adopt the Federal Child Support Guidelines in whole, including the Federal Child Support Tables for Prince Edward Island.
Workbook for Children
The Community Legal Education Association of Manitoba (CLEA) is preparinga workbook for children between the ages of eight and twelve, whose parents are going through a separation or divorce. The workbook will contain stories that illustrate family law principles, as well as quizzes, crossword puzzles, word searches and other activities. It will be printed in English and French in the spring of 2006. We gratefully acknowledge the Family, Children and Youth Section of Justice Canada for funding for this project.
Law Phone-In and Lawyer Referral Program
The Law Phone-In and Lawyer Referral Program is staffed by two lawyers who answer over 9,000 legal inquiries per year on a variety of legal topics. Over one–quarter of these calls deal with family law issues. The Program can be reached at (204) 943–2305 or toll–free at 1–800–262–8800.
Other Programs
CLEA also operates a Speaker's Bureau and a Community Legal Intermediary Training Course, and has available a variety of plain language legal publications. Please call us at (204) 943-2382. Our website address is www.communitylegal.mb.ca.
The Public Legal Education and Information Service of New Brunswick (PLEIS–NB) has produced a guide for young parents. The guide, entitled Parenting: Rights and Responsibilities of Young Parents, addresses the concerns of young parents, including the rights of minors to consent to medical treatment, paternity issues, the rights of non–custodial parents, adoption, and the obligations of unmarried parents to pay child support.
Over the past fifteen years, PLEIS–NB has found that family law is the area of highest demand for information. Thanks to assistance from the Department of Justice Canada, PLEIS–NB was able to work with parenting agencies such as Public Health, the Victorian Order of Nurses, shelters for pregnant teens, support groups for young fathers, and Planned Parenthood. These organizations informed us about the law information needs of their clientele, and helped us arrange focus groups with pregnant teens and young parents. The focus groups helped us identify other law information questions, as well as the barriers that young parents face in finding information.
The guide, which is also available in French, is currently being distributed to parenting agencies around New Brunswick to help front line service providers explain young parents' rights and responsibilities and to direct them to resources and places where they can get more detailed information. It is also available on the PLEIS–NB website at http://www.legal-info-legale.nb.ca.
The Public Legal Education Network of Alberta (PLENA) assembled and distributed over 200 Family Law Tool Kits — a compilation of family law resource materials — to Albertans. PLENA agreed to coordinate the preparation of region-specific family law resource pages and to assemble and distribute the tool kits to non-governmental front-line service providers, representing all regions of Alberta. The Department of Justice Canada leads the nation-wide initiative.
In addition, PLENA and its interested members developed and delivered comprehensive family law and family violence training sessions for service providers. These sessions targeted tool kit recipients and the general public.
In response to Alberta's new Family Law Act, PLENA plans to implement a province-wide initiative to inform Albertans about the new provincial family law legislation.
To learn more about this initiative, please contact Kim Pasula, PLENA chief executive at kim@plena.org, or visit www.plena.org.
Public Legal Information Association of Newfoundland and Labrador's (PLIAN) newest project, in conjunction with our other Atlantic PLEI groups, is the Lipstick Project, designed to provide women in abusive situations with the information they need to ensure their safety in a way that will not increase their chance of being abused.
PLIAN is also writing several new pamphlets dealing with family law issues, such as custody and access, support and enforcement, and living common law. We are also hosting family law information sessions throughout our province.
For more information about our services, or to receive our publications, please contact Kelly Brockerville at info@publiclegalinfo.com; (709) 722-2643, fax (709) 722-0054.
In 2005, the Public Legal Education Association (PLEA) of Saskatchewan received funding from the Child-centred Family Justice Fund to develop an electronic Family Law Intermediary Training Module, a newsletter for youth on parental responsibilities, and a series of eight newspaper articles on parental responsibilities and other family justice issues. An "intermediary"
is usually a human services provider, such as a social worker, who, with the help of PLEA resources, may be better able to help their own clients with legal information and referrals.
The training module was adapted from PLEA's Family Law Intermediary Training Guide, for interactive use on PLEA's website (www.plea.org). The school newsletter was an issue of The PLEA, our youth and schools newsletter, and dealt specifically with parental responsibilities for young parents. The newspaper articles ran in newspapers and venues of other information providers subscribing to our weekly A Look at the Law newspaper article service. The project was completed March 31, 2005.
PLEA also assembled and distributed 1000 Family Law Kits, a resource tool for intermediaries to use to meet the specific legal information needs of their clients who may be experiencing separation or divorce. The kit contained materials from the Department of Justice Canada, as well as province-specific material from PLEA. The kit was distributed to intermediaries from non-profit, community, and government service organizations across the province of Saskatchewan.
Are you familiar with Éducaloi? Éducaloi is a not-for-profit organization that produces legal information for Quebeckers in language that is clear and easy to understand. Family law, which affects every parent and every spouse, is one of the many fields of law that Éducaloi has chosen to explain through its website, www.educaloi.com/en/.
For example, the capsules in La loi vos droits [law and your rights], written simply and concisely in the form of questions and answers, provide parents with information on a wide range of topics, including parental authority, custody of children and child support. The section entitled Côtécour [courtside] features a guided tour of the Superior Court (Family Division) and describes the steps in the separation and divorce process. Éducaloi is also pleased to offer Á bon port [calm waters], a brand new section of its site dedicated to spouses going through a separation and the professionals who work with them. On October 17, 2005, Éducaloi proudly launched the English version of it site, giving Anglophones in Quebec access to this wealth of information. When it comes to information on family law, Éducaloi is the only source!
The Canada Revenue Agency (CRA) is responsible for administering the Canada Child Tax Benefit (CCTB). The CCTB is a tax-free monthly payment for children under the age of 18 that is intended to help families with the cost of raising their children. This article focuses on how the CRA administers the CCTB in situations involving separated or divorced parents. When parents separate or divorce, the CCTB may be an important consideration during custody and child support negotiations.
The Income Tax Act is the legal authority for determining which parent is eligible for the CCTB. Parents often suffer frustration and financial hardship when child support court orders or written agreements contain CCTB eligibility provisions that are contrary to those set out in the Act, or that reflect circumstances that have changed. This article explains some of the legislative rules1 the CRA is obliged to use to determine which parent is eligible for the CCTB.
Information on the CCTB application form is used to determine eligibility, and the CRA uses the applicant's and the cohabiting spouse's or common–law partner's2 income tax returns for the previous year to determine the amount of the CCTB.3 As long as certain criteria are satisfied, the parent4 who resides with the child5 and who primarily fulfils the responsibility for the care and upbringing of the child is the one who is eligible for the CCTB.
Generally, when a male parent and a female parent both reside with the child, the female parent is presumed to be the person who fulfils this responsibility.6 Therefore, when the father and the mother reside together, it is the mother who is normally eligible for the CCTB.7 Under the Act, only one parent is eligible to receive the CCTB for any given month. The monthly CCTB cannot be prorated between the parents.
In a situation where parents have separated for a period of more than 90 days as a result of a breakdown in their marriage or relationship, or have divorced, and where the child spends considerable periods of time with the two parents at their respective residences, the CRA will conduct a review to determine which parent is eligible for the CCTB. It will start by determining whether the child actually resides with both parents.8 It then establishes who is primarily responsible for the care and upbringing of the child (using prescribed factors that reflect the care and nurturing needs of a child9). The existence of a court order is only one of a number of factors.
Usually, the review confirms that the parent who has custody of the child the majority of the time is the primary caregiver and, therefore, the eligible individual for CCTB purposes. When custody is shared equally, both parents may satisfy the "resides with"
and "primary care"
requirements. In this situation, the CRA will establish CCTB eligibility for one parent for six months and then rotate the eligibility to the other parent for the next six months.10 The rotation will begin with the parent who previously had not been eligible for the CCTB. Since the actual amount of CCTB payable to an eligible individual depends on that person's family income, it is possible that one eligible individual's family income will preclude him or her from receiving the benefit during his or her six-month eligibility period.
Both parents are notified of the results of the review. If either parent is dissatisfied with the result, the normal appeal rights that exist for other income tax matters apply.11 This rotation of eligibility will continue until the child's eighteenth birthday or until there is a change in the custody situation. When one of the parents ceases to meet any of the eligibility criteria, he or she should immediately notify the CRA so that payments can be stopped, which avoids the need for the CRA to recover benefits to which that parent was not entitled.
Eligibility for the child component of the goods and services tax/harmonized sales tax (GST/HST) credit follows CCTB eligibility.
It is important to remember that the provisions of the Income Tax Act dictate who is eligible for the CCTB. Eligibility is not based on rules of family law or on other legal arrangements affecting the parents. Parents and their representatives should know about the legislative requirements to help minimize the level of frustration and financial hardship that parents may experience during an already difficult period.
If you would like more information, please visit the "Child and Family Benefits"
page on the CRA website at www.cra.gc.ca. You can also get information by calling toll free 1–800–387–1193 (service in English) or 1–800–387–1194 (service in French).
Notes
1. For complete rules and guidelines, see section 122.6 of the Income Tax Act and Part LXIII of the Income Tax Regulations.
2. "Cohabiting spouse"
and "spouse"
are defined in section 122.6 and subsection 252(4) of the Act, respectively. With the passage of Bill C–23, effective January 1, 2001, subsection 252(4) was repealed. Also effective January 1, 2001, the term "cohabiting spouse"
was replaced with the term "cohabiting spouse or common law partner"
and, under a new definition in subsection 248(1), the term "common law partner"
includes persons of both the opposite and the same sex who live common law.
3. Section 122.61 of the Income Tax Act sets out the complete formula for the CCTB calculation. It is based on adjusted family income, defined in section 122.6 of the Act, which is basically the combined income of the applicant and the applicant's cohabiting spouse.
4. Parent is defined in subsection 252(2) of the Income Tax Act.
5. Child is defined in subsection 252(1) of the Income Tax Act.
6. The "resides with,"
"primary care,"
and "female presumption"
rules, as well as other criteria, that have to be satisfied to be eligible for the CCTB, are found in the definition of "eligible individual"
in section 122.6 of the Income Tax Act. Note that the phrase "primarily fulfills the responsibility for"
implies that only one parent is eligible for the CCTB for any given month.
7. There are exceptions to the "female presumption"
rule, and these are outlined in section 6301 of the Income Tax Regulations.
8. It is not necessary that the child live with a parent at least 50% of the time for a child to be considered residing with a parent.
9. See section 6302 of the Income Tax Regulations for a description of the eight factors taken into consideration.
10. The amount to be paid to each parent will depend on his or her respective family income. Unfortunately at this time, administrative and economic constraints prevent us from rotating the payments more frequently.
11. Section 165 of the Income Tax Act deals with appeal provisions.
For further information on provincial or territorial child support guidelines and related programs, please call the following number within each province or territory:
Alberta
Calgary (403) 297-6600
Edmonton (780) 415-0404
Dial 310-0000 for toll-free access
British Columbia 1-888-216-2211
Vancouver (604) 660-2192
Manitoba 1-800-282-8069 ext. 0268
Winnipeg (204) 945-0268
New Brunswick 1-888-236-2444
Newfoundland and Labrador (709) 729-1831
Northwest Territories 1-888-298-7880
Nova Scotia 1-800-665-9779 ext. 2
Halifax (902) 455-3135
Nunavut 1-800-792-4183
Iqaluit (867) 975-6137
Ontario 1-800-980-4962
Prince Edward Island 1-800-240-9798
Charlottetown (902) 892-0853
Quebec
Communication-Québec 1-800-363-1363
Ministère de la Justice du Québec (418) 643-5140
Saskatchewan 1-888-218-2822
Yukon 1-800-661-0408 ext. 3066
Whitehorse (867) 667-3066