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Since spring 2002, the federal governmentproceeded with public consultations about theframework in which custody and access decisions are made. A lengthy report on the publicconsultations was released in November 2001.Recommendations for reforms to the custodyand access framework were to be integratedinto the five-year review of the Child SupportGuidelines released in th e spring of2002.However, they were not included in that fiveyear review report. The absence of anyreference to custody reforms in that reportindicates to me that either the federal government is losing its commitment to reformcustody and access, or the process of reformingthe custody and access framework is too complicated to meet deadlines earlier given.

By way of background, I will briefly reviewhow the issue of reforms to custody and access

either the federal government is losing

its commitment to reform custody and

access or the process of reforming the

custody and access framework is too

complicated to meet deadlines earlier

given

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came to be put on the government agenda, thepublic consultations which followed, thereport resulting from those consultations, andlastly the release of the five-year review on theoperation of the Child Support Guidelines.There are some very interesting recommendations in the five-year report for fine-tuning theGuidelines, and [ will take those up below.

ackground to the ReformInitiative

When the Child Support Guidelines wereintroduced in 1996 as part of Bill C-41, n

Act to Amend the Divorce Act the Family Ordersand AgreementsEnforcement Assistant Act theGarnishment Attachment and PensionDiversion Act and the Canada Shipping Act the

Bill was almost derailed at the Senate level. Anagreement was made between the liberal government and the Senate to allow the Bill to bepassed in exchange for the commitment fromthe liberal government to establish a jointSenate-House of Commons Committee tostudy issues related to custody and accessunder the Divorce Act. Bill C-41 receivedRoyal assent on February 1997 and came intoforce on May 1 1997.

The Senate-House of CommonsCommittee on child custody and access held

extensive public consultations in 1998.t

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released its final repo rt titled For the Sake ofthe Children in December 1998. The con

tents of the report clearly established that thereis widespread public concern about, and dissatisfaction with, the legal framework in whichcustody and access decisions are made.

The federal government released itsresponse to the special join t committee's reporton May 10, 1999. Anne McLellan wasMinister of Justice and Attorney General ofCanada at the time, and she tabled this reportin the House of Commons.

In its response, the federal governmentundertook to conduct further study andresearch jointly with the provinces concerningcustody and access and to conduct public consultations through the summer of 200 1. The

results of the research and studies and publicconsultations were to be included in the five-year report to Parliament on the operation ofthe Child Suppor t Guidelines. The following isquoted from the May 10, 1999 Government ofCanada's Response to the Report of the SpecialJoint Committee on Child Custody and Access:

The process to implemen t thisStrategy for Reform will involve workingclosely with the Provinces and Territoriesto integrate the review and consultationprocess with the Government of

Canada's review of the Federal Child

D e c e m b e r 2002 January 2 3

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Support Guidelines. The Department ofJustice is required to provide Parliamentwith the results of a comprehensivereview of the provisions and operationsof the Guidelines and the determinationof child support by May 2002. ThisStrategy for Reform will integrate thedevelopment of reforms to custody andaccess issues into that process. Fur the rstudy and research will be carried outjointly with the Provinces leading topublic consultations on specific reformproposals in 2001. In this way thereport to Parliament on the Guidelinescan include the necessary reformsregarding both custody an d access an dchild support."

Public consultations were conducted inmajor centers through the su mmer of 200 1.The materials for these public consultationswere titled "Federal-Provincia l- TerritorialConsultation Custody and Access".

In November 2001 the final report and anexecutive summar y on the Federal-ProvincialIcrritorial consultations on custody, access andchild supp ort in Canada was released. They

arc available at the Department of JusticeCanada website at http://canada.justice.gc.ca/en cons consul tations.htm '

This report again establishes that there iswidespread concern and dissatisfaction withthe legal framework in which custody andaccess decisions are made. The report noted:"While there were many varying opinions

expressed on how to ensure the legislationaddresses the best interests of children, most

respondents agreed that the current situation islacking and that improvement is necessary."

The report went on to state that "the resultsof the consultation as captured in this reportwill in form the Federal-Provincial-TerritorialFamily Law Committees discussions on thechild custody and access project as well as thediscussions of Federal, Provincial andTerritorial Ministers responsible for Justice.They will form part of the background to thereport to Parliament that the Federal Ministerof Justice will table before May 2002" . Asnoted above, the five-year review of the Child

Support Guidelines tabled in the spring of2002 did not take up the issue of reforms tothe custody and access decision-mak ing framework. It was restricted to fine tuning theChild Support Guidelines.

Recommended hanges to thhild Support Guidelines

The five-year review of the Child SupportGuidelines titled "Child Come First: A Report

to Parliament Reviewing the Provisions andOperation of the Federal Child SupportGuidelines" basically made recommendations tofine-tune the operation of the Guidelines. Forexample, the r eport recommends th at a payor'sGuideline Income may be adjusted ifhe or shelives in a country with effective rates of incometax significantly higher than those in Canada.At this time, the Guidelines permit an adjustment only if the payor lives in a country witheffective rates of income tax which are lowerthan those in Canada. Other fine-tuningincludes proposed changes to disclosure requirements where support is being paid for a childover the age of 18, and for shared custody.

At the present time, parents with shared custody can have great discretion in setting childsupport. A court is to have reference to theChild Support Guidelines, but the Guidelinesare not determinative. The five-year review recommends that a setoff formula beimplemented for shared u s t ~ d ysituations.

This formula would be very similar to thatimposed on parents in split custody situations.Split custody is where the parents each haveprimary residence of at least one child, sharedcustody is where the parents would each havethe children for more than 40 of the timeover the coutse of a year. The recommendation

is that the formula be applied to shared custodysituations "unless that amount is deemed inappropriate based on how the parents share thechild's expenses". This is actually a hugechange because it takes away from parents with

shared custody the almost absolute discretionthey had, if both were in agreement, for settingchild support.

The one issue which the writer had expectedwould receive attention in the report is the40 time boundary for shared custody. Asreaders may be aware, in the Province ofQuebec the payor begins to enjoy a reductionin child support paid if the payor has the childin his or her care more that 20 of the timeover the course of a year. This creates a slidingscale for support. In addition in Quebec, theincome of both parents is taken into account incalculating child support. I personally wouldprefer to see a sliding scale for child suppo rt inall provinces because it is hard to justify why a

Other fine tuning includes proposed

changes to disclosure requirements

where support is being paid for a child

over the age of 18 and for shared

custody

D e c e m b e r 2002 January 2 3

parent who has the child for 40 of the timeshould enjoy a reduction in child support,whereas a parent who has the child for only35 of the time should not also enjoy a reduction in child support.

All of the provinces with the exception ofQuebec follow the 40 rule for shared custody, and do not have any provision for asliding scale for signif icant access and caregiving time. Under s.2 of the Divorce Actindividual provinces may adopt their ownGuidelines, and all provinces with the exception of Alberta have done so. Those ProvincialGuidelines would apply if both the divorcingmother and father reside in one province.However, if they are no t resident in the sameprovince, the Federal Guidelines would apply.Therefore, it makes sense for Provincial andFederal Guidelines to be consistent. Problemswith lack of consistency are illustrated by thefollowing. [fboth divorcing parents live in theProvince of Quebec, the 20 time threshold

in the Quebec Guidelines would apply; however if one of the parents lives in Ontario andthe other lives in Quebec with the child, theFederal Guidelines would apply with its 40threshold. Because the Federal Guidelines takeprecedence when the parents live in differentprovinces, it is up to the Federal Guidelines tointroduce changes to the 40 threshold beforethe provinces will do so.

SummaryThe federal government did no t deal with

custody and access reforms in the five-yearreview of the operation of the Federal ChildSupport Guidelines. To its credit, the federalDepartment of Justice has published a comprehensive report, released in 2001, on theFederal-Provincial-Territorial Consultations fol-lowing the public consultations in the summerof2001. While initially a federal initiative in1996, the issue of reforming the custody andaccess decision-making framework has becomea combined Federal-Provincial-Territorial initiative because custody and access are wi thinshared jurisdiction. While the report on consultations clearly states "most respondents agreedthat the current situation is lacking and thatimprovement is necessary", it remains to beseen what reforms will actually be implementedin the gederal Divorce Actand provincialstatutes concerning the framework in whichcustody and access decisions arc made.

Gordon Andreiuk is a RegisteredCollaborative Family Lawyer practisingwith the Laurier Law Group inEdmonton Alberta.

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