Abusive non-custodial parents can manipulate the Family Responsibility Office and Family Court system to continue financially and emotionally abusing custodial parents and their children.
By Doreen Nicoll
Published January 06, 2016
This is the second installment in the series, Improving the Lives of Children in Ontario. The first article requested the Wynne government change their policy to allow custodial parents receiving Ontario Disability Support Program or Ontario Works payments to keep 100 percent of their child support payments.
Another way to respect and honour the human rights of Ontario's children is by creating a child support recalculation process that holds payors accountable. The provincial government needs to ensure that the Family Responsibility Office (FRO) has all of the necessary information to process child support adjustments on a yearly basis.
In Canada, mothers are awarded sole custody in 79.3 percent of court-ordered custody arrangements. Women are by far the largest recipients of child support payments. Court ordered child support should be reviewed annually based on the filed income tax return of the payor.
Adjustments to payments can then be made in accordance with the Child Support Guidelines (CSG). Ideally, this recalculation service should be provided by the province with responsibility to supply relevant tax information in a timely manner being placed upon the payor.
In July 2015, the Ontario government did propose changes to Family Law Act: ONTARIO REGULATION 190/15: the Administrative Calculation and Recalculation of Child Support. As part of Bill 14: Building Opportunity and Securing Our Future Act (Budget Measures), 2014, this regulation will come into force when subsection 10 (1) of Schedule comes into force.
The changes enabling child support recalculation through an online portal without having to attend court and incur related expenses is an admirable achievement. To make use of this service, both parties - payors and payees - must agree in writing to the process and also agree to provide their most recent income information or give consent for the service to obtain his or her income information directly from the Canada Revenue Agency. As well, both the applying parent and the responding parent must pay a fee of $80 before the process will be undertake.
Unfortunately, this service remains inaccessible to those who really need it - women who have been in abusive relationships. Where a history of power and control exists, these women will find it impossible to persuade the payor to consent to the process in writing, provide the required income information, and pay the service fee.
This forces these women, and their children, to forgo the court-ordered annual reviews of child support payments unless they file a motion with the courts. That is a very time-consuming and expensive proposition, and one that places women at great risk when dealing with abusers during case conferences, settlement conferences and court appearances.
The proposed recalculation process makes the payee responsible for ensuring the payor's co-operation, even though she has a court order stating the date to exchange tax information as well as a specific date on which adjustments must be made. If the payor doesn't comply, then the payee has no recourse except filing a motion.
Ironically, the payor in breach of the court-ordered exchange of tax information suffers no repercussions. If the payor is making child support payments through the FRO, then technically he is not in arrears because he's paying the most recent court ordered amount. However, these payments are not up-to-date because the payor has not submitted their most recent tax information - sometimes for decades at a time.
This is a way for abusive, non-custodial parents to manipulate the FRO and family court system in order to continue financially and emotionally abusing custodial parents and their children.
The province of Manitoba has a recalculation service that treats both parties equally and prevents payor's from manipulating the process. The Recalculation Service Office (RSO) notifies both parents of the application and requests updated financial information. Once the information is received by the service, the table amount of child support and any special or extraordinary expenses, are reviewed and changed.
If a parent doesn't provide updated financial information, the Manitoba RSO can apply to the court for court orders, including for court costs, and can ask a judge to determine the other parent's income based upon the best available evidence. In some cases, the RSO can deem financial disclosure as being received and adjust accordingly.
The Manitoba RSO provides each parent with the relevant financial information given by the other parent. A support determination officer will discuss with either party any concerns about the recalculation process. It's a very fair and transparent process.
In Manitoba, recalculation services are free of charge. However, parties are responsible to pay for any related court filing and document serving fees. Recalculation adjustments are available on an annual or bi-annual basis.
In Alberta, the RSO offers an easy and inexpensive way for payors to fulfill their legal obligation to ensure the child support their children receive matches the parents' incomes.
It provides regular changes to child support amounts that respond to either increases or decreases in income; ensures accessibility no matter where in Alberta the parties reside; does not require either party to attend court or go to a government office; and provides certainty, predictability and transparency in the method of recalculation.
The Recalculation Program (RP) requires tax returns for the most recent tax year. If the payor does not provide the income information as required, the RP may complete the recalculation as if the payor's income had increased by up to 25 percent or as if the payor's income was $23,296, whichever is the higher amount. The RP may need an order of the court to do this in some cases.
Recalculations take place on the anniversary date of the order being recalculated. After reviewing the parties' income information, the RP will send both parents a written Recalculation Decision. Each party pays $75 every time they use the service.
The Ontario government should adopt an annual recalculation process more in line with the Manitoba model. In addition to keeping women safe from further financial, emotional and even physical abuse, the Manitoba process benefits children by preventing ongoing parental confrontation and litigation.
There have been studies exposing the harmful effects on children of having parents litigating against each other as measured by math scores that immediately go down and never recover to match those of their peers.
As human rights lawyer Eric Letts points out: "Children with parents that live apart are the most at-risk group for negative adult outcome. Family status trumps poverty, race and gender for predicting bad adult outcomes namely, criminality, victimization, substance abuse, lower education, lower income, suicide, and divorce. It is worth noting because this is the exact demographic that needs to be targeted. We, as a community, need to nurture and develop resilience, social survival skills and hope. Instead, these children are getting attacked by the Provincial Government."
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