Support recipients are flocking to Alberta's new child support recalculation service, but more children could be helped if the federal government reforms the Divorce Act to permit provinces to impute income to parents who fail to disclose earnings, says the program's director.
"I think that things are going very well for us - we have a lot of interest, and we are able to assist people," says Edmonton's Angela Kerr, the former family law practitioner who leads the Alberta Justice Child Support Recalculation Program, which opened its doors Jan. 1.
Kerr told The Lawyers Weekly some of the clients assisted by the program had not had their child support adjusted for a decade. "Finally now there is an easy, non-confrontational[...]way of having their support revisited," she said. "We have helped[...]a lot of recipients get their child support increased and up-to-date."
Although the program has been a boon to lower- and middle-income recipients, mostly women, who cannot afford to go to court, the recalculation service assists payers too, Kerr noted. "We have had a great many [support recalculations] go down."
Alberta is the latest province to set up a service which annually adjusts court-ordered child support amounts, based on changes in the parties' incomes, without requiring support recipients to hire a lawyer and go to court.
Newfoundland and Labrador, P.E.I. and Manitoba already have recalculation services, while B.C. has some pilot projects. Quebec and Ontario are among other jurisdictions currently looking into the feasibility of setting up their own services.
Alberta's program is unique, however, because it doesn't require recalculation to be court-ordered. This is important because many older court orders do not contain recalculation clauses (Canada's first recalculation agency was set up in Newfoundland in 2002).
Explains Kerr, "so what this did for us was, from the day we opened, we were able to consider court orders as old as May 1, 1997 (when the federal child support guidelines came into force) for entry into our program."
As of Sept. 30, 1,483 people had applied to register their support orders, or certain types of agreements, with the program. There were 950 active files, and 232 recalculation decisions had been issued, according to statistics provided to The Lawyers Weekly by Alberta's Department of Justice.
During its first nine months of operation, Alberta's recalculation program has found that three-quarters of parents are providing income disclosure as required, and about 75 per cent of recalculation decisions result in an increase in the base table amount.
Income disclosure remains the biggest challenge for the program, Kerr said. This is so even though Alberta uniquely deals with payers' failure to disclose their incomes by imputing income increases on a sliding scale-ranging from 10 per cent for failure to disclose within a year after a court or recalculation service has established the payer's income, up to 25 per cent if there has been no income established for more than five years.
Other provinces are considering following Alberta's approach of imputing income in order to save the huge hassle and expense of having to go to court to force income disclosure. That's where Divorce Act reform comes in, Kerr suggests. "Our stumbling block is if the child support order was granted under the Divorce Act, we are not able to apply our deemed income increase provision."
That means that in cases of income non-disclosure, Alberta's program can only recalculate child support orders made under provincial legislation, leaving support recipients and children covered by the Divorce Act without recourse, other than to go to court to force disclosure - which is cost-prohibitive for most people.
"Roughly one-quarter of Divorce Act files we don't get disclosure on," Kerr said. "It means that there is a significant proportion of clients who are not receiving equal access to justice because of the wording of the Divorce Act. And I think it was an inadvertent[...]unintended consequence. Surely if the politicians had a full discussion about what's going to happen if someone doesn't provide their income disclosure they would have wanted an easy administrative scheme for dealing with those situations, because that's what s. 25.1 is all about."
Section 25.1 of the Divorce Act authorizes the federal government to enter into agreements with the provinces and territories allowing the latter to set up administrative agencies to periodically recalculate child support on the basis of updated income information.
"The federal government takes the position that this means no deemed income increases are allowed," said Kerr. "In Manitoba, in P.E.I., in Newfoundland they get around that because they have recalculation clauses in their orders. The first thing the clause says [for example] is 'this order will be recalculated by the child support recalculation program of P.E.I. or Newfoundland or Manitoba. You will disclose your income every year. If you don't, it's a 10-per-cent increase.' So they get around it because the court has ordered an increase. In Alberta, because we are not requiring those clauses, and in fact we don't want those clauses, we have a problem. The only way that we can complete the recalculation in those Divorce Act situations where there hasn't been disclosure is for our program to bring a court application and get that court authorization.
"So we are stuck bringing those applications, which we are doing on a pilot basis. But I don't know if we will be able to continue because they are very resource-intensive."
Ottawa's Lise Lafreniere Henrie, senior counsel and co-ordinator of family law policy at the federal Department of Justice, told The Lawyers Weekly the federal government "is aware of the issue that has been raised by Alberta, and the question now is when there will be an opportunity to move forward with amendments to address that."
Lafreniere Henrie said there were bound to be unforeseen issues, given that the child support legislation was drafted a decade before the first provincial recalculation service was up and running.
"We do need the amendment," Kerr stressed. "The amendment basically would need to say something to the effect of 'if there is no [parental income] disclosure, the provincial law applies as to what the effect of that non-disclosure is," she explained. "That would help everybody across the country, because some of the new programs looking at opening, I believe they would find the same issue that we have."