Law Times

Law Times • February 7, 2011 FOCUS PAGE 13 Ontario slow to launch recalculation service Other provinces move faster in looking at out-of-court alternatives BY JUDY VAN RHIJN For Law Times en up by the recalculation of support orders. While there are piecemeal attempts in discrete locations to address the prob- lem, some people feel it's time to take a look at out-of-court alternatives. A While the federal government is in a good position to introduce a mechanism through the tax system, there's little impetus to do so, leaving the provinces with the onus to create independent recalculation services of their own. Some are doing so with great success, but not Ontario. At present, the family law di- vision of Justice Canada reports that four provinces have recalcu- lation services empowered un- der s. 25.1 of the Divorce Act. Newfoundland and Labrador was the first to register in 2002, followed by Prince Edward Is- land and Manitoba in 2006. Al- berta opened its doors in January 2010, and a new scheme will be rolling out in Nova Scotia in the next six months. In addition, a pilot project has been underway in Kelowna, B.C., since 2006, while Saskatchewan has run a mediation-based support varia- tion project for Regina residents since 2002. Deidre Smith, principal of Smith Family Law Group in To- ronto, explains that the original series of pilot projects was specif- ically chosen to give the oppor- tunity to test different models. "One was linked to mediation, one to a community health and welfare system, one to front-line court staff, and so on. The ball stopped moving there. Family law has fallen off the radar on the list of priorities federally and provincially since then." Kristen Rose, a spokes- woman for the Ministry of the Attorney General, says the pro- vincial government recognizes that a child-support recalcula- tion service can provide many benefits to family court litigants and the family justice system. She notes the government has put the legislative framework in place to permit such a service to be developed but will continue to monitor the experiences of other provinces' child-support recalculation efforts for the time being. One action the government took in March 2010 was to amend the Ontario child-sup- port guidelines so that parents who are subject to an order or agreement for child support are required to provide the other parent with updated financial disclosure on an annual basis. There's no doubt that increase in information will prompt more court applications for ad- justments. With some judges reporting that they already spend 60 per cent of their cross the province, an enormous amount of court resources are tak- time dealing with variations of maintenance, the need for an alternative is clear. "There is no doubt we need an easily accessible, widely available, easily understood pro- cess," says Smith, who supports a federal approach. "In an ideal universe, for those of us who file our tax returns electronically, and a lot of people do, wouldn't it be great if there were some boxes to tick off that said: 'Are you separated and do you have a child-support obligation or en- titlement?' Yes. 'Would you like your information to be passed to the other parent?' Yes. 'Are you a support payer?' Yes. 'Do you want your support adjusted ac- cording to this return?' Yes. . . . Then Bob gets a new number, and Mary gets an e-mail telling her what it is." Smith notes such a system wouldn't detract from any- body's rights. "If for whatever reason Bob thinks it's not a straight calculation, he doesn't click the button." Although Smith concedes this procedure would have to be voluntary, she believes a large number of payers would opt into it, which would sig- nificantly reduce the number of variation applications be- fore the courts. "The detrac- tors would say that it wouldn't be 100 per cent but they're the same people we're not helping now anyway. They would also say that not everyone's child support is easy to calculate based on taxable net income, but that is not the vast num- ber of Canadians. Most have readily discernible sources of income, and it's not a tough mathematical calculation. Are they my clients? No. Mine are the ones with the weird tax re- turns. But if you capture low- to upper middle-class Canadians, you'd capture a huge chunk of those not paying or those clog- ging the judicial system. That's the type of process we need to wash a huge number of dis- putes out of the system." The problem with this sim- ple solution is that it needs to be plugged into the tax system federally. "The [Canada Rev- enue Agency] would have to say it's in the business of recal- culating child support," Smith says. "There would be some costs, such as software costs and public education costs, but the upside is that it would reduce the overall cost that is being paid out in welfare. It's the provinces [that] do that, so it's a hard sell to the federal government unless they take the view that it's a good thing to do for families for not much cost, and families vote." Smith isn't aware of any impetus to fund a recalcula- tion service on a federal basis. "I would bet the farm that the feds would say it's a provincial responsibility. On a provin- cial level, there is an economic incentive, and it's a matter of public interest because many receive public assistance. To the extent that child support is kept current, there's a benefit." Other provinces have already found there are many benefits that flow from a provincial model. Angela Kerr, director of the child-support recalculation program in Alberta, oversees launches its new registration form. "There will be the option of filling out a small section that says, 'Please register me with the child-support recal- culation program at the same time.' We'll be very, very, very busy. The [maintenance en- forcement program] gets 500 applications a month. Probably 300 of those will go with us." looking at saving court time, but this is equally important." Chris Beresford, executive director of maintenance enforce- ment in British Columbia, says the Kelowna pilot project, which recalculates orders and agree- ments filed at the Kelowna Pro- vincial Court registry since June 1, 2006, has also been a success for the families involved. "It of- If you recalculate 100 orders, it doesn't mean those 100 parents would have gone back to court. It's not a 1:1 ratio. But there's no question that over a course of years, these parents have benefited and that clearly some court time has been saved. a purely administrative model that doesn't require a court or- der to contain a recalculation clause. "Our eligibility crite- ria says that you can register an order dated from May 1, 1997, when the child-support guidelines came into effect. That opened the door to a huge number of people who didn't need to go back to court." So far, 1,710 people have at- tempted to register, but Kerr is expecting registrations to go up dramatically when the mainte- nance enforcement program Kerr is unable to produce sta- tistics proving the system is free- ing up court time but notes an- ecdotal reports from court clerks who have mentioned that it's helping. "The great thing is that people with orders from 1997 who have never accessed court can now access justice through this simple procedure. Those who can't afford court appearances, can't navigate the system or deal with the stress find this a lot more accessible. They are finally get- ting orders reviewed when they wouldn't have otherwise. We are Trust [ fers a way to adjust the payments to keep current with the payer's circumstances and doesn't re- quire a return to court." Still, Beresford warns against drawing a direct ratio between recalculations and saved court appearances. "If you recalcu- late 100 orders, it doesn't mean those 100 parents would have gone back to court. It's not a 1:1 ratio. But there's no ques- tion that over a course of years, these parents have benefited and that clearly some court time has been saved." LT Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed. Leonard H. Kunka - Partner | L. Craig Brown - Partner | Darcy R. Merkur - Partner For over 70 years Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom Untitled-1 1www.lawtimesnews.com 2/3/11 10:28:41 AM

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• Helping Kids
• Scrutinizing Experts
• Focus On Family Law/Trusts & Estates