Ontario has come from behind to take the lead with an online child support calculation service.
After lagging behind the other provinces in its treatment of child support adjustments, Ontario is providing an online administrative model that allows parents to establish and recalculate child support without any involvement of the court. If experiences across Canada are any guide, the courts can expect a decrease in child support-related appearances.
Over the past 13 years, many of the Canadian provinces have set up administrative or mediation-based services for recalculating child support. While Ontario has long discussed the issue, it wasn’t until 2013 that any concrete form of the service began to take shape. Not content with copying the other provinces, Ontario’s model goes a leap further with the initial calculation of an obligation for child support.
Katie Wood, counsel in the family policy and programs branch for the Ministry of the Attorney General’s court services division, says a lot of consultation went into developing the scheme. “We worked closely with the federal government and had regular conversations and consultations with our counterparts in other provinces. That has been enormously helpful. The difference with our service is that we incorporate the establishment element. It is the first of its kind in Canada and the first to allow parents to avoid going to court. The other provinces are very excited and interested to see how that works.”
Wood offers an overview of how co-operation between ministries and departments has allowed for the development of the service. “It is a joint partnership. The Ministry of Finance is doing the back end, Service Ontario is doing the front end, and the Family Responsibility Office is doing the enforcement. The Ministry of the Attorney General is responsible for legislation and policy but won’t be administering it.”
Wood notes the arrangement is a direct departure from the usual model of court referral. “We don’t have a direct relationship with the court. There is no pre-established relationship required, just a child support obligation.”
In Ontario’s homegrown model, Service Ontario is creating a portal that parents can access. The Ministry of Finance is offering the use of its automated employment and income verification service through which it can contact the Canada Revenue Agency directly for income information while the Family Responsibility Office uses its enforcement powers.
“It’s a matter of things coming together with other departments,” says Wood. “It’s exciting that the [Ministry of Finance] came on board. That’s the piece that moves it along and helps parents get to a place of certainty. There is such a delaying factor in child support in the court system. We are often held up by inadequate financial disclosure. We hope this will have a positive impact on arrears.”
One important aspect of the service is the requirement for the consent of both parties. “They have had a conversation that the service is the right fit for the parties,” says Wood. “In recalculation, there are many instances where we have the legislative authority to proceed by deeming an increase in income, depending on how long ago the order was made, even if one parent doesn’t respond.”
In fact, the legislative amendments that are necessary to hold up the scheme are in the process of coming into force with changes to s. 39 and a new s. 39.1 of the Family Law Act having received royal assent. Bill 85, the Strengthening and Improving Government Act, which contains provisions to require ongoing disclosure under the scheme, is currently before the legislature. “Unless someone opts out, that will happen,” says Wood.
The Ministry of the Attorney General has been hard at work drafting the administrative calculation and recalculation of child support regulation with the assistance of family justice stakeholders and the judiciary. “The regulation is the meat and potatoes,” says Wood. “It contains the eligibility requirements, the times parties have to respond, when consent is required, and the special expenses the service will look at.”
Wood notes there’s a small difference when it comes to calculations under the child support guidelines more generally and the application of Schedule 3 for more complex deductions. “The service won’t engage in those deductions, only spousal support and universal child care benefit deductions,” she says.
Once the service calculates the amount, a notice of calculation or recalculation goes out to both parties and to the Family Responsibility Office for enforcement with the determination treated as a court order.
“In the case of a recalculation, the amount is inserted into the court order and the rest of the order remains in force,” says Wood. “It only replaces the amount owing under the order.”
Those involved in the process are about to enter the testing phase with an anticipated launch in the winter of 2016. There are more than 4,000 test groups for the ministries to run through the system.
Wood has high hopes the new system will be successful on a number of levels. “One of the goals is to free up court time, allowing urgent and complex matters to be dealt with more quickly,” she says.
“It will really allow parents to get on with the next stage — co-parenting — by taking the emotion and confrontation out of the dispute. We are also expecting to capture the previously uncaptured user base of those who are not going to court initially or for recalculations because the process is too complex and cumbersome. This is a quicker tool to bring the people in.”
Lawyers are looking forward to the introduction of the service, although they’re aware of its limitations.
Julie Layne of Layne Family Law PC in Richmond Hill, Ont., believes most family lawyers support an expeditious way to determine child support without having to retain counsel or go to court. “With the tables, it is a very easy calculation that should not require the use of judicial resources, especially when it is by consent,” she says.
Erica Lien of Stanchieri Family Law believes there are definite advantages for very simple and uncomplicated matters.
“It is limited in that respect. Those families that have simple T4 earners can easily calculate from Line 150. It’s a cost-effective means to do it. However, what I see is a lot of files where people work under contracts or are self-employed or have imputation of income. There are other issues with arrears. They will only make prospective calculations. They don’t deal with underpayments.”
Layne notes that the moment someone is self-employed, the question of income becomes much more complex. “There are a number of items that can be added back in, such as personal expenses that are run through the corporation. The other issue is the gross income. Retained earnings can be, and often are, added back in.”
Lien hopes the scheme will provide a new avenue for those who are leery of the legal system. “What is happening now is that people do not have the order changed over the years. The payer ends up paying the same amount long term. The cost of hiring a lawyer and going back to court outweighs the potential benefit. This system will be easier if the parties consent. I’m not sure how many will do it voluntarily.
Usually, it is difficult to get the payer to willingly pay in the first place. I will be interested to see how many participants use the service.”
