CHILD SUPPORT PROCESSES
OPTIONS FOR CANADA

March 1997

Presented by Mary MacDonald, B.A., LL.B.

The present report was funded by the Child Support Team,
Department of Justice Canada. The views expressed herein are
solely those of the author and do not necessarily represent the
views of the department.

TABLE OF CONTENTS

EXECUTIVE SUMMARY

INTRODUCTION

CONSTITUTIONAL FRAMEWORK

DIVORCE ACT AMENDMENTS AND GUIDELINES

CHILD SUPPORT OPERATIONAL CONSIDERATIONS

A. Education and Information to the Public

B. Intake Services and Administrative Processing

Washington

Oregon

Australia and New Zealand

A Canadian Example - the British Columbia Family Maintenance Program

C. The Role of Advocates

D. Mediation

E. Mediation - Arbitration ("Med/Arb")

Alternative Dispute Resolution - the Judiciary's Example

F. Quasi-Judicial Hearing Officer Systems

PROGRAMS IN OTHER JURISDICTIONS

A. Mediation Models

Dispute Resolution Process - Florida

Clackamus County Family Court Services - Oregon

B. Mediation/Arbitration Models

"Domestic Relations Mediation" - Michigan

Volunteer Family Law Mediator Program - Toronto, Ontario

Arbitration Masters - Montana

Special Master Program - California

C. "Full Service" Models

Family Court Services - Alameda County, California

Family Law Facilitator Program - San Mateo and Santa Clara, California

Friend of the Court - Michigan

STAFFING ISSUES

A. Clerical

B. Processing and Investigating Staff

C. Integrated Staff - The Washington State Example

D. Mediators

E. Quasi-Judicial Decision-Makers

CONSIDERATIONS

RECOMMENDATIONS

CONCLUSION

APPENDICES

A-Recommended General Child Support Model

B-Continuum

C-State of Washington, Department of Social and Health Services, Division of Child Support (DCS):
Notice of Proposed Child Support Order

D-State of Washington, Department of Social and Health Services, Division Of Child Support (DCS):
Notice and Finding of Financial Responsibility

E-State of Washington, Department of Social and Health Services, Division of Child Support (DCS):
Notice and Finding of Financial Responsibility - Hearing Requested

F-State of Oregon, Department of Justice:
Request for Administrative Hearing

G-State of Oregon, Department of Justice:
Notice of Hearing

H-State of Oregon, Department of Justice:
Initial Notice of Review and Adjustment

I-State of Oregon, Department of Justice:
Uniform Income Statement

J-State of Oregon, Department of Justice:
State's Motion for Modification and Proposed Order

K-State of Oregon, Department of Justice:
Order Approving Administrative Order

L-State of Oregon, Department of Justice:
Notice of Intent to Enter Order/Judgment

EXECUTIVE SUMMARY

An administrative child support system can neither operate in a vacuum nor be completely separated from the legal and social context in a given jurisdiction. In addition, in order to be both efficient and accepted as a legitimate process, the child support model should be integrated into the existing family justice framework.

Designing the specifics of the most appropriate approach is a task for the provincial governments. This report is intended to provide an overview of some of the programs already operating successfully in other places. The focus is on those models that could potentially have the most relevance in Canada, given the constitutional limitations operating in this country.

In addition, general comments are made about the effectiveness of modelling these various approaches and about some of the potential implications arising out of adopting a particular approach.

INTRODUCTION

There are a number of existing child support programs operating in other jurisdictions; however, not all of these programs are suitable for Canada, given the constitutional constraints operating in this country. Rather, various components of these programs provide a useful starting point for eventual development of a Canadian child support scheme.

Most jurisdictions have moved toward administrative processing as much as possible for certain categories of child support cases, notably social assistance cases and those cases where application has been made for the child support agency's services. The administrative processing approach is most suited to those cases where child support might be addressed as a single or independent issue. However, child support can potentially arise in a number of different scenarios, all requiring varying approaches and, as such, an effective child support scheme should provide access to, and interconnectedness with, alternative approaches whenever possible.

This report provides an overview of some of the legal constraints operating in Canada and, in light of these constraints, workable models are discussed. The general recommended approach for a Canadian jurisdiction is illustrated at Appendix A. The dispute resolution processes are visually presented at Appendix B.

CONSTITUTIONAL FRAMEWORK

In the case of Polglase v. Polglase,¹ Justice Hutchinson of the British Columbia Supreme Court held that courts of summary jurisdiction or provincially appointed decision-makers have authority to make decisions pertaining to spousal and child maintenance, assuming the decision relates to establishing periodic payments. The court dealt with this issue in isolation from divorce proceedings. Provincial court judges already exercise this authority pursuant to provincial legislation. Justice Hutchinson addressed both establishing and varying child support in this context.

In the Adoption Reference (1938),² the Supreme Court of Canada distinguished matters including adoption orders, enforcing spousal and child maintenance obligations and protecting neglected children as matters more closely in line with the authority historically exercised by the inferior courts. Similarly, in the subsequent case Re B.C. Family Relations Act 1982,³ guardianship and custody were also held to be matters that could be considered by an inferior court or a court of summary jurisdiction staffed by provincial appointees. Following this case, however, the inferior court cannot make orders in respect of the occupancy of (and access to) the family residence.

However, in all of these cases, the court isolated these issues from divorce proceedings. Divorce is dealt with by federally appointed justices of the Superior Courts in each province and, therefore, any issue attaching to a divorce proceeding will more likely be considered ancillary to the divorce itself.

On numerous occasions, the courts have addressed what constitutes the authority of a Section 96, or superior court, judge. Section 96 of the Constitution Act 1867 states:

The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

The Governor General then has the constitutional authority to appoint the judges of the superior courts. Canadian jurisprudence has established that provincially appointed decision-making bodies cannot exercise the authority of superior or "Section 96" court judges who preside in the superior courts of each province.

Accordingly, the courts have examined the scope of the superior courts' authority, which cannot be removed from that forum. The test for whether or not a provincially established tribunal is exercising Section 96 functions was most clearly set out in the case of Re Residential Tenancies Act 1979.⁴ In this case, the Supreme Court of Canada considered whether or not the Residential Tenancy Commission, appointed pursuant to the Ontario Residential Tenancies Act 1979, was exercising Section 96 court powers. The commission was vested with the responsibility of overseeing and enforcing the legislated rights and obligations of tenants and landlords.

In examining the issue of whether or not the commission's powers were ultra vires a provincially appointed body, the Supreme Court of Canada articulated a three-stage test. The components of the test are as follows:

1. whether the powers of the inferior court are in broad conformity with the powers of Section 96 courts at the time of Confederation;
   
   
2. whether the inferior court's powers are judicial (in other words, is the inferior court's decision determinative); and
   
   
3. whether the inferior court's judicial power is necessarily incidental to the implementation of a broader policy goal.
   

If the answer to the first part of the test is "yes," it is then necessary to move onto the second and third stages of the test.

In regard to the first stage of this test, Peter Hogg states that the extent of this historical examination is not at all clear in regard to whether or not the consideration should be confined only to the four original provinces.⁵ In any event, in the case of Sobeys Stores v. Yeomans,⁶ Madame Justice Wilson of the Supreme Court of Canada established that, in a case of a tie, final resort should be made to the state of the law in the United Kingdom at the time of Confederation.

Of the second stage of the test, Peter Hogg suggests the question involves "the elusive task of characterizing the impugned power as ‘judicial' or as ‘administrative' or ‘legislative'."⁷ According to Justice Dickson's articulation of the test, judicial functions exist where:

1. the matter involves a private dispute between the parties;
   
   
2. the matter must be adjudicated "through the application of a recognized body of rules;" and
   
   
3. the matter must be proceeded with "in a manner consistent with fairness and impartiality."⁸
   

Finally, in considering the third stage of the test, Peter Hogg assesses a line of labour relations cases which shed light on the examination of the context of the decision-making function. He elaborates on the effect of these various cases:

In both Tomko [Tomko v. Labour Relations Board (Nova Scotia), [1977] 1 S.C.R. 112] and John East [Labour Relations Bd. (Sask.) v. John East IronWorks, [1949] A.C. 134], the court-like adjudicative function of the labour relations board was ancillary to a broader administrative and policy-making role as administrator of the labour relations legislation. A similar argument carried the day in Sobeys Stores [already cited], where a labour standards tribunal's power to reinstate employees was upheld as ‘a minimum standard of protection for non-unionized employees.'⁹

This overview of the relevant case law is not intended as legal advice about the child support model which could be most viable from a constitutional standpoint in Canada. This legal determination will require extensive consultation with constitutional law experts who will be able to provide precise instruction in regard to the most appropriate course of action for a particular provincial government.

However, given these general legal principles, the most appropriate course of action might be to integrate administrative processing and some form of recommending procedure into the system that is set up so as not to interfere with the role of Section 96 judges. The feasibility of this approach requires consultation with the judiciary once a concrete model has been formulated.

In regard to these constitutional constraints, many of the models outlined in the predecessor to this report, entitled Expedited Child Support, may not be viable options in Canada. For instance, many existing child support models provide for administrative establishment of child support outside the court system and sometimes without any involvement of the judiciary. In places such as the United Kingdom, the court's jurisdiction over child support has been replaced by a child support administrative tribunal. In other places, child support can be established administratively in certain cases such as through the Title IV-D program in the United States or through the tax system operating in Australia and New Zealand.

These approaches might not work in Canada where the judiciary will have to retain a strong role in child support cases, particularly for divorce cases where it is not entirely clear whether or not child support will always be considered ancillary to the divorce proceeding, even in cases of varying or modifying an existing child support order. Based on these constitutional limitations, the recommended approach should be directly linked into the existing court structures and should be integrated as much as possible with existing family justice services.

DIVORCE ACT AMENDMENTS AND GUIDELINES

The proposed amendments to the Divorce Act and the corresponding child support guidelines set out the standards by which supreme court justices will be assessing child support amounts. The guidelines have not yet been finalized as of the time of writing this report and further amendments to the proposed legislative scheme may take place before the amendments come into effect.

As the draft proposal currently stands, the presumptive rule is that the amount of child support will be based on the non-custodial parent's annual income and the number of children requiring support. In addition, special or extraordinary expenses shall also be accounted for. These expenses include child care relating to the custodial parent's employment or education, medical or health-related expenses, primary or secondary school expenses for the child's needs, post-secondary education expenses and expenses for extracurricular activities.

The guiding principle is that expenses should be shared by the spouses in proportion to their means. The guidelines leave discretion with the court to vary from the guidelines on the basis of undue hardship resulting from unusually high debts reasonably incurred to support the spouse and children or to earn a living; high expenses incurred in obtaining access to the child; a court-ordered duty to support someone; a legal duty to support another child who is either under the age of majority or otherwise unable to be self-supporting. The test to be applied in assessing whether or not there is hardship is a standard of living test, consisting of a comparison between the two parents' living standards.

In addition, the court may accept a consent arrangement between the two parents upon being satisfied that the arrangement reasonably provides for the child's support having regard to the standards set in the guidelines. This provision for consent relates both to the initial establishment of the order and to variation of an order. It will affect the role of mediation in that any agreement must be in line with the guidelines, regardless of other outstanding issues.

In most circumstances when a parent seeks to have an existing support order varied, relevant considerations are whether a change in circumstances would result in a different amount of child support or a change in the conditions, means, needs or circumstances, including tax implications, of either parent since the initial order was made.

Bearing in mind these aspects of the guidelines, there is a certain amount of latitude for negotiation and/or court discretion and, accordingly, a model should integrate one or more dispute resolution mechanisms as visually presented at Appendix B of this report.

CHILD SUPPORT OPERATIONAL CONSIDERATIONS

There are a number of questions which must be addressed by a jurisdiction considering setting up a child support system. Some of the more significant queries are as follows:

1. Is the model going to be based on mediation or decision-making or both?
   
   
2. Will a multi-option approach be taken, focused on addressing the various types of cases in the most appropriate way?
   
   
3. Is the model going to be centred in the court itself or rather, primarily administered through a court-connected service such as family mediation or conciliation?
   
   
4. How much of an onus will be put on the parties themselves to produce the required financial information and fill out the required documentation?
   

This list of questions represents some of the basic starting point concerns and until addressed, the list of possible child support administrative mechanisms remains extensive. This report will focus on some of the attributes and characteristics of the more general approaches already operating to varying degrees in a number of places both within and outside Canada. Advantages and disadvantages of very specific approaches will depend on the available resources and structures already in place in a particular location. However, on a more general level, there are some common concerns that any jurisdiction should consider. These concerns are highlighted in this report.

Bearing these considerations in mind, a recommended general approach is outlined in Appendix A and the potential dispute resolution options to be integrated are illustrated in the continuum at Appendix B. The various potential components of the model are discussed separately in some detail in this report.

A. Education and Information to the Public

There is some dispute about the usefulness of providing an educational program when people are seeking child support. In some mediation programs where the focus is on custody and visitation disputes, the orientation and educational programs usually take place at the outset of the process. Many of these programs do not contain a child support component but rather, focus on the custodial aspects of the case and on skills for coping after the breakdown of a relationship, both for parents and for children. Several programs contain only basic information about the child support process.

In Canada, education programs are becoming more commonplace in regard to domestic relations cases. Generally, the education programs are hosted by court-connected family mediation or conciliation services and accordingly, the focus of the programs tends to be the use of conciliation and other positive means of communication for addressing some of the emotional aspects resulting from the ending of a relationship.

A novel program was set up in Edmonton on February 1, 1996. Any person seeking to file an application for any domestic relations matter in the Edmonton Court of Queen's Bench must first attend a mandatory education program entitled "Parenting After Separation." At the time of filing in the court, the person is required to show proof of having attended. The program is co-sponsored by the Department of Family and Social Services and the Department of Justice. This six-hour long education program is offered over two days and scheduled regularly so the parties can attend the session most convenient for them.

The focus of the program is to highlight some of the factors concerning the children and to show people some skills of compromising. The objective is to get people to talk about conciliation. In regard to the court process, the participants receive an information booklet and an overview of the court process. Finally, there is also information provided about mediation and the available services. The course is run by family mediators and social workers.

The experience of some of the people involved with the program is that the more financial issues are discussed during a program like this, the more the tension in the room heightens. This statement applies particularly in regard to any attempts to discuss with the participants the amount of support they can expect. The participants' level of frustration could increase if they were told the amount of child support they could expect to pay or receive and then found a completely different outcome in court. However, information about the process itself would likely be useful if it were consistent and accurate.

The mandatory nature of the program has proven beneficial. People who would never otherwise know about or consider alternatives to litigation, such as mediation, are receiving an overview of such programs. In addition, if they choose to pursue their case through the adversarial process, they are more informed about how the court system works and are, therefore, more empowered.

In Manitoba, a somewhat different approach is taken through a pilot program recently established. A parent education program is also available to people commencing legal action to have family matters resolved. The program is triggered by a person's application to the court. The Winnipeg Family Conciliation Office is attached by modem to the court registry and can access file information including the name and address of the applicant, the specific application made and the relief sought. If both parties' addresses are available in the file, the staff of the office then sends letters out to them informing them about the education program. The program is not mandatory.

These are only two of a vast array of novel projects being established throughout Canada in response to a perceived need to better orient and inform people about their options when family relations break down. Many of the education programs are relatively new and evaluations are ongoing. However, the people directly involved with the implementation and administration of these programs would be able to provide insight about whether or not they see parent education as a viable part of a child support model on the local or provincial level.

If an educational component were to be incorporated into an administrative child support process, the two features people would most likely want would be information about the guidelines themselves, perhaps including assistance with the guideline calculations, and information about the process to follow to secure the child support. In regard to the program's overarching philosophy, these issues are not necessarily compatible with some of the more emotionally based issues that currently account for the greater part of existing education programs in many places.

It might be worth setting up a distinct program, which is solely informational in nature, and which contains practical information about procedural matters such as how to obtain a child support order. This form of education is already provided in parts of California through the Family Law Clinic programs staffed by family law facilitators. The family law facilitator program in San Jose, California, provides both informational and forms preparation workshops. The informational workshops:

give an overview of the family law process, what to expect and how to present a case in a hearing, and some detail of certain areas of the law, e.g., child support. The workshops can be very informative for the participants on points of law that are difficult for a self-represented party to research, e.g., often a parent will ask when a judge might attribute income to any "unemployed" parent.¹⁰

The forms preparation workshops are separate sessions aimed at assisting people in small groups who may need assistance with filling out their court forms. Constance Jiminez, Director of the San Jose Family Court Clinic, states:

Modification of child support and uncontested divorces are suitable for workshops. If staff can organize and set up the workshop, volunteer family law attorneys are generally very willing to teach or assist with the completion of forms.¹¹

Here in Canada, such a program could easily be developed, building on existing resources. For instance, in the Yukon, the Law Line of the Public Legal Education program provides basic legal information. Do-it-yourself child support variation packages are also available.

B. Intake Services and Administrative Processing

A child support process will require some form of an intake process. More specifically, ultimate application of the child support guidelines necessitates a process whereby the required information is gathered in a systematic and efficient manner at an early stage. Particularly in those cases where child support can be processed as a single issue, administrative processing of the case proves beneficial. Generally, this stage of the process should be aimed at gathering information from both parties and where possible and with the compliance of the parties, settling the matter at this stage without the need to resort to a more involved dispute resolution process.

The specific characteristics of the intake process will be defined by the overall nature of the implemented model. Most jurisdictions will be building their child support scheme onto existing structures and so it is worth taking note of how the current process for collecting information works. It may be that the existing information-collecting approaches could be revised to lend support to an expedited or dispute resolution-based child support scheme.

Court processes already provide for the collection of financial information from both parties prior to a court hearing. This gathering and exchanging of information between the parties is central to the adversarial process and, as such, administrative rules have been designed to foster efficient information exchange. Generally speaking, there is provision in the court rules for exchanging financial information and registering it with the court. Each party is responsible for serving the relevant documents on the other party and for providing a copy to the court prior to a scheduled hearing. Ideally, then, the court possesses the parties' financial information prior to the decision-making stage of the process.

The benefit of expanding on these existing court processes is that they are already in place and familiar to the public. However, it should be noted that the existing process at the superior court level has been designed for parties represented by counsel. The framework may not be entirely user-friendly to the average member of the public who finds him or herself without any guidance about the process.

Some of the American systems premised on alternative dispute resolution make use of the information-gathering processes already operating in the courts. For instance, in Florida, the family file is referred to family mediation services after it is filed with the court. During the course of the mediation sessions, the personnel of the court-annexed service rely on the financial information provided by the court registry.

In those states and Commonwealth countries where child support administrative schemes have been set up, the administrative process functions precedes the court process. In these jurisdictions, the intake process is directed by the administrative agency and the information-gathering approaches have been incorporated into the administrative process itself. Almost the complete reverse of the court-initiated approach, the information gathered by the administrative agency may ultimately funnel into the courts if so required.

It is recommended that an adapted administrative system based on the experience in Washington, Oregon, New Zealand and Australia be integrated at the intake stage of the child support process. The focus of these established systems rests on gathering information from both parties where possible. At this stage, it is helpful to give the obligor the opportunity to provide the required financial information without needing to resort to more formal sanctions. The benefit of this kind of system is that it provides both parties with the opportunity to avoid confrontation where possible. The required components of this stage include:

1. gathering information from both parties;
   
   
2. performing the required calculations;
   
   
3. allowing the parties the opportunity to challenge the amount of child support assessed; and
   
   
4. providing referrals to other related services where appropriate.
   

Washington and Oregon have set up successful child support administrative schemes. These schemes operate automatically in AFDC cases, where at least one child is being supported by social assistance. Alternatively, any parent may request the services of the administrative agency at any stage of the process. The two states are quite similar to each another in regard to collecting information.

Washington

The Washington child support formula is based on the income shares model, which means that both parents' gross and net income and assets are considered. In addition, age and number of children, child care costs, special medical needs of the child(ren), cost of providing the child(ren)'s health insurance, second family involvement, long-distance transportation costs and education costs are also considered. Reasons for deviating from the standard calculation include: sources of income and tax planning (i.e., income received from outside sources including a new spouse or relationship, investments, gifts and prizes, etc.).

The Division of Child Support can establish a child support order administratively for parents receiving social assistance or for parents who apply for the services of the Division. In the latter case, the parent requesting the services of the Division of Child Support fills out an application. The applicant must meet certain criteria set out in Washington statute.¹² The child support enforcement officer then prepares a Notice of Proposed Child Support found at Appendix C of this report. This document is then sent to the applicant for approval. If the applicant disregards the notice entirely, the case will be closed. If the applicant does not agree with the proposed amount, the support enforcement officer then negotiates with the applicant. If upon negotiation the applicant agrees, the regular procedure of serving the obligor is triggered.

In these cases, where the applicant agrees with the proposed amount of the order at any stage and for all AFDC cases, a Notice and Finding of Financial Responsibility, shown at Appendix D to this report, is sent to the obligor by certified mail. The obligor has 21 days within which to return an objection to the Division of Child Support. If the obligor responds with a request for a hearing, the division's personnel set a hearing date 90 days into the future. If an objection is not received within the allotted time, a default order is entered against the debtor. The default order is signed by the support officer who has had conduct of the file throughout the entire process. Immediately, the order has all the force and effect of a court order.

If the applicant does not agree with the proposed amount of child support, even after negotiation with the support enforcement officer, a Notice and Finding of Financial Responsibility - Hearing Requested, is sent to the obligor. This form notifies the obligor that the other party has already objected to the amount of child support assessed. The form is found at Appendix E.

If one of the parties objects to the amount of child support assessed, the support officer then takes measures to bring the two parties to a consent agreement on the amount of child support. The ongoing negotiations conducted by the support officer involve telephone calls, letters and in-person interviews with one or both of the parents, depending on the particular circumstances of the case. Often, these negotiations result in settlement of the case without the need to progress to the administrative hearing itself.

The Washington modification process resembles the child support establishment process to a certain extent. The current practice is that, for an AFDC case (a child or children who are being supported at least partially by social assistance), a modification review takes place every three years.¹³ For all other cases, the modification review takes place upon the request of one of the parents. As with child support establishment cases, the employment income information is available to child support agency personnel via their computer system. Gathering accurate income information about the self-employed parent proves more problematic.

The modification process is commenced upon the application of either parent. The case is managed by the enforcement officer responsible for ensuring the payments are made. It is not generally seen as a conflict to have the same officer involved in both enforcing payments and processing requests for modification from either parent. At this stage of the administrative process, it is possible that the modification will apply either to an administrative child support order originally established through the administrative process, or to a court order for which one of the parents has subsequently requested assistance from the child support agency. In the latter case, the initial administrative processing of the modification request serves as the intake stage of a process which will ultimately culminate in the courts if necessary.

This administrative intake processing could potentially be incorporated into a Canadian child support system at the front end. For both administrative and court orders, the first couple of steps of the process are the same. Once the application for a modification has been received from one of the parents, a Notification of Review is sent out to the other parent. This form is accompanied by a Child Support Schedule and a Financial Declaration, which both parties are required to fill out, sign and return. The parents are informed that a review of their file will take place in 30 days and that they are required to return the enclosed forms. The enforcement officer reviews the forms to make sure they have been fully completed and assesses whether or not there should be a modification based on the information supplied by the parents. The minimum qualifications for a child support modification provide either that the current monthly amount of support would change by at least 25 percent and at least one hundred dollars a month. The other possible basis for a modification is that the total change over the life of the order should be at least $2400.00.

If the financial information is not forthcoming from one of the parents, income information is gathered from other sources instead. In the case of self-employed parents, the child support agency will utilize the same imputed income scale, dependent on the age and sex of the parent, as the basis for the modification case.

After the review has been completed, a Review Findings Notice is sent by certified mail to both parents to advise them of the results of the review. The finding may be that the case does not meet the criteria for a modification or, if it does, it would include the amount of the revised support order. If the parents disagree with the finding they can request a modification conference to discuss it. A modification conference is an informal meeting between the officer and one or both of the parents. One or both of the parents may bring income and other information pertinent to the officer's findings.

In the case of a request for a modification of a court order, the file is forwarded to the prosecuting attorney's office once it has been reviewed. The prosecuting attorney takes the matter to court. In the case of a self-employed parent for whom income has been imputed, sometimes the judge will not accept imputed income as an adequate basis upon which to modify the child support order. These cases prove somewhat problematic in the Washington administrative scheme. The judge might dismiss a modification case unless accurate information is gathered about both parents' financial resources.

Oregon

Like Washington state, the Oregon child support formula is also an income shares model. Income considered in assessing child support includes: the parent's available financial resources, reasonable necessities, the net income remaining after any necessary withholdings, the parent's ability to borrow money, the number and needs of other dependents, any special hardships of the parent, the needs of the child(ren), the desirability of the custodial parent remaining at home for the sake of the child, tax consequences and financial advantages afforded to either parent by a third party. The criteria for departing from the formula include such factors as the special needs of the child(ren), child care costs and second family involvement.

The administrative child support scheme closely resembles the Washington model. Both states' approaches typify the American administrative child support approach operating in various states.¹⁴ In Oregon, as in Washington, the administrative child support establishment and modification processes apply to the range of Title IV-D cases, both cases involving children being supported by social assistance (AFDC cases) or private applications. At the first stage, the State of Oregon issues a notice to the parties a Request for Administrative Hearing on the obligor by certified mail and on the obligee by regular mail. This form is found at Appendix F.

Once the parties have received the notice, they both have the right to:

1. agree with the support amount as assessed;
   
   
2. ignore the support amount as assessed; or
   
   
3. disagree with the support amount.
   

In the first two scenarios, the proposed order sent out to the parties is then filed with the court as the new support order. The involvement of the court at this stage of the process differs from the purely administrative model operating in Washington. At this stage, the county court sends a copy of the new support order to the Department of Human Resources for enforcement procedures.

If either party disagrees with the suggested support amount, he or she must return the written request for a hearing (Appendix F) within 20 days after receiving the documents. An administrative hearing is then set, to take place within thirty to 60 days, and the department sends a Notice of Hearing to the other party. This form is found at Appendix G. The parties are requested to testify about their finances before an administrative referee of the Employment Department Hearings Unit. The parties receive a copy of the referee's decision within seven to 14 days after the hearing. At this point, the parties can agree with the referee's decision or disagree with the order by way of an appeal to the court where the referee's order was filed. If the disputing party does not attend the administrative hearing, the state attributes the party's income based on the most recent information available.

For modification of an existing order, the Oregon process is quite systematic. First, the request or notice for modification is received. The existing order is then assessed to determine whether it is at least two years old. If it is not two years old, the applicant receives an administrative review decision declining the request for a review of the existing order. The only exception to this general approach is in the situation where the obligor requests cancellation of a child support order because he or she has gone onto public assistance within the last two years. In this case, the request for a review may be accepted. If the order is at least two years old, or if the obligor is on public assistance, agency personnel then send both parties the following documents:

1. Initial Notice of Review and Adjustment (Appendix H) (this form is used to notify the parties 30 days prior to starting the review and adjustment);
   
   
2. Uniform Income Statement (Appendix I) (this form is a financial questionnaire used to obtain information necessary for computing a child support order); and
   
   
3. Medical Insurance Option.
   

After the 30 day period has passed, the review modification process commences. There are a number of forms that could be prepared at this stage of the process, depending on the specific requirements of the case. If, based on the financial information returned by the parties and/or available through other sources of information about the parties' financial status, the determination is made that a modification would be appropriate in the circumstances, the State's Motion for Modification and Proposed Order is prepared (see Appendix J) and sent to both parties. If the decision is that the modification should be disallowed or the order cancelled entirely, a different form is sent out. In any case, enclosed with any of these forms are:

1. Request for Administrative Hearing (Appendix F);
   
   
2. Support Computation Worksheet;
   
   
3. a Child Support Notice to either the obligor or obligee;¹⁵ or
   
   
4. the other party's uniform income statement or, if the obligor's financial information is unavailable, a notice to the obligee that minimum wage has been imputed for the obligor.
   

The parties then have 30 days to request a hearing in which case the same hearing process as for establishment cases would be triggered. When the hearing order is received from the Employment Department Hearing Unit, the order is filed with the court in the case of a support order that was originally administrative.

If the order sought to be modified was originally judicial, a slightly different process occurs. In this situation, the administrative order (whether subsequent to a hearing or in the case of default when the parties have not objected) is docketed with the court and an Order Approving Administrative Order (Appendix K) is prepared and sent to the parties, along with a Notice of Intent to Enter Order/Judgment (Appendix L). The parties have 10 days from the date of service to object to the proposed order in which case, the matter would be set down for a court hearing.

Australia and New Zealand

In both New Zealand and Australia, the Taxation Office records provide the basis for establishment and modification, and the onus is then on one of the parties to dispute the accuracy of the information found there. In other words, the financial assessment procedure in those two countries is even more direct than in the American administrative schemes. Since the taxation offices oversee the child support agencies in the two countries, the required financial information providing a basis for a child support assessment is immediately accessible. The tax return filed the previous year forms the basis for the initial child support assessment sent out to the obligor or debtor parent.

In Australia for instance, if the parent seeking child support does not already have a child support order, he or she can apply for the services of the Child Support Agency by filling out an Application for Child Support Assessment. The form requires the applicant to provide certain information including the following:

1. personal data about oneself;
   
   
2. one's own taxable income for the last two financial years and the tax file number;
   
   
3. the name and address of the "paying parent" and, if applicable, the name and address of the other (paying) parent's current employer; and
   
   
4. information about the children including particulars of the current custody and access arrangement.
   

Upon receipt and initial processing of this application, including an assessment based on available tax records to determine the appropriate level of child support, the "paying parent" or obligor is then contacted with a Notice of Acceptance, Assessment and Registration. The Child Support Agency instructs the parent to do the following:

1. check the assessment and contact the Agency if it has used any wrong information on it;
   
   
2. read the enclosed Schedule of Payments to find out how much to pay and when to pay (and how to pay); and
   
   
3. fill out the employment details ... in the Child Support Handbook and return the form to the Agency within 14 days.¹⁶

Further, the parent is also notified to inform the Child Support Agency right away if any money has already been paid to the other parent in which case, it could be deducted from the amount to pay. The obligee or custodial parent is then sent a notice providing the following information:

1. that the application for assessment has been accepted;
   
   
2. the amount of the first payment;
   
   
3. the period to which the first payment applies;
   
   
4. the date on which the payment is due to the agency;
   
   
5. the date on which the parent can expect the first payment;
   
   
6. the regular monthly amount; and
   
   
7. the dates the payments are due to the agency and also to the parent.
   

The agency conducts an annual assessment of the child support amount by reviewing the last filed tax returns. The paying parent is also able to file an application for a child support or maintenance change. This application is mandatory when any of the following occur:

1. anything which affects the amount payable under a child support assessment or court order/agreement;
   
   
2. (the person) gets another court order or agreement; or
   
   
3. (the person) changes [his or her] name or address.¹⁷
   

In addition, either parent can send in an Application for Review of a Child Support Assessment when the parent seeks to ask the Child Support Review Office to reduce or increase the child support assessment based on special circumstances not taken into account in the initial assessment.

Both the American administrative models and the systems operating in New Zealand and Australia are premised on the child support agencies' ability to access financial information about the parties, without needing to hear directly from the uncooperative party. These features allow the systems a certain amount of efficiency not possible in a jurisdiction lacking this direct access to financial records and also dealing with legislated privacy rights of the parties. Information gathering is probably the most challenging component of any design to set up an administrative process and particular attention must be paid to this at a preliminary stage.

Traditionally in Canada, the courts and the processes attached to the courts have enjoyed the most clout in gathering information from uncooperative people. In the absence of direct and useable computer linkage with financial information sources, these existing procedures hold out the most promise in regard to setting up a workable administrative scheme, and they should somehow be integrated with the administrative scheme. Therefore, whatever administrative intake system is set up, it should probably be directly linked in with the court's current information gathering processes.

A Canadian Example - the British Columbia Family Maintenance Program

The British Columbia social assistance program provides clients with the opportunity to assign their rights to the Family Maintenance Program for the purpose of collecting child support from the other parent. Provincial legislation establishes that a parent on social assistance is under an obligation to attempt to secure maximum child support from the other parent. Otherwise, the custodial parent's social assistance payments could be reduced.

In regard to processing the case, the Family Maintenance Program resembles administrative schemes operating in other jurisdictions. It is worth examining this program because it is a Canadian example of how social assistance clients are currently being serviced by the government in this country. As noted, the administrative child support processing schemes in other jurisdictions outside Canada were originally set up to address the needs of social assistance recipients and have subsequently expanded in scope to assist those people who apply for child support services to establish or modify and enforce child support.

The British Columbia program is staffed by family maintenance workers who receive training about the relevant legislation - these people are responsible for case management. Upon receiving a client's request for services, the family maintenance worker then contacts the respondent (obligor) with a Notice of Crown's Intention to pursue child support. This notice states that statutory action will be taken on the client's behalf, describes whether the case is to establish or vary the child support order, clarifies that the Crown is taking action and encourages the respondent to contact the family maintenance worker so the matter can be settled by consent if possible.

If the respondent agrees to a consent arrangement, he or she is required to complete a Statement of Finances and to provide supporting financial documentation to the family maintenance worker, usually consisting of three tax returns. The family maintenance worker then either consults over the telephone or meets with the respondent to arrange the appropriate amount of child support. The custodial parent would usually not be present during this meeting.

If the respondent chooses not to consent, the matter will then proceed to court and counsel for the family maintenance program pursues child support through the court process.

The British Columbia Family Maintenance Program addresses the unique position of social assistance recipients who are not really in a position to bargain on their own behalf because of statutory obligation attached to receiving social assistance. For this group of people, a significant objective is to ensure that if possible, the custodial parent receives child support from the other parent in order to reduce the amount of social assistance paid to this person and her or his child(ren). Accordingly, for this category of cases, the most effective avenue will probably need to be expeditious and decisive as opposed to conciliatory. The existing program resembles the administrative processing options outlined above and could potentially be developed along the lines of these options.

C. The Role of Advocates

Throughout the United States and in other Commonwealth countries, the basic child support administrative schemes were originally developed to assist people on social assistance who could not afford to pursue their children's interests through the courts. The scope of the programs subsequently expanded to assist those people who made specific application for the services of the agency. Accordingly, the current situation is that social assistance recipients are automatically assisted by child support agencies whereas other members of the public can apply for these same services.

In many of the child support administrative models, the personnel of the administrative agencies involved in collecting and processing information, ultimately act as advocates for the children, making it clear to both the obligee and the obligor (both parents) that the agency is representing only the best interests of the child or children, rather than the interests of one or the other of the parents. Through this approach, the element of bargaining is completely taken from both parents in regard to the issue of child support.

This approach is particularly prevalent at the hearing stage of any scheme where both parents appear, as does the representative of the child support agency. This approach exists both in purely administrative and court-based models. Often, the first glance would suggest that this agency employee is representing the interests of the custodial parent who is seeking a child support order. This appearance of alliance between the one parent and the agency is rooted in the common objective of securing sufficient support for the child or children. Moreover, in those cases where the obligee has requested the services of the agency, the surface appearance is that the obligee is in essence a client of the agency. However, in all jurisdictions, child support agency personnel are trained to instruct the parents throughout the process that the agency represents the best interest of the child (or of "the state" in some places) and that both parents are independent parties in the process.

Having made this position clear, the agency's representative is generally more closely affiliated with the obligee because of the common interest of securing a child support order. In those jurisdictions where the administrative system culminates in the court with a hearing officer presiding at the hearing, the agency representative attends as an advocate for the position of the child or children. In some places in the United States, this function is carried out by the District Attorney's Office. In these places, the child support agency does the initial intake for the matter and then refers it to the District Attorney's Office.

This attendance at the hearing of a third party representative of the appropriate agency is integral to many of the administrative child support schemes operating outside Canada. The benefits are obvious:

1. it takes bargaining of the child support issue out of the parents' hands;
   
   
2. it could reduce the possibility of threats from the other party in regard to this matter once the process has been triggered;
   
   
3. it evens out a potentially uneven playing field which might otherwise exist between the parties and obscure the best interests of the child - this process ensures the child's interests are properly expressed.
   

There is no reason why a child support system could not integrate this advocate role in the process. In most jurisdictions, there is a case officer in charge of a particular file. This person follows through from the initial intake stage to the hearing stage. Duties could include interviewing the parents, collecting and organizing relevant case information (as through a financial evaluation), preparing for the hearing and finally, speaking as the child's advocate at the hearing. An advocate function is particularly crucial in the Canadian context in cases where legislation establishes that an obligee (custodial parent) receiving social assistance has a responsibility to secure the maximum amount of child support. In these circumstances, an advocate is in an appropriate position to make a strong statement for the best interests of the child, based on a working knowledge of and continued involvement with the file.

It has also worked sufficiently in other jurisdictions to have the administrative child support system apply automatically in the case of a parent receiving social assistance. The benefit of these programs is that the cost to either the party on social assistance or the applicant is virtually nonexistent. In some places, application may involve a nominal fee but in needy cases, this fee can be waived.

In many jurisdictions, the hearing officer forum does not require the involvement of legal counsel because the hearings before hearing officers are more informal. The rules of evidence apply but are somewhat relaxed. The practice from one place to another varies - such a model could accommodate the role of counsel as appropriate. Where the agency representative is already present on behalf of the child, this approach may limit the potential role of the obligee's counsel who would presumably be seeking the same outcome - child support. On the other hand, the parties themselves may feel more secure in having their own advocates present their positions in this fundamentally adversarial system.

D. Mediation

Most publicly funded mediation services in the United States and parts of Canada are somehow annexed to the court with family law jurisdiction. The mediation programs are generally accessed either through the parties' own application for services or through a court referral at some stage in the judicial process, whether upon initial filing, before a hearing or upon a matter first going before a justice. When mediation services are private, the parties themselves are usually responsible for paying for the sessions in the absence of another financial source such as legal aid.

There is some dispute about the role and effectiveness of mediation for an issue such as child support where in relation to the other more open-ended issues custody and visitation, there may be much less room for negotiation. There is also controversy over the appropriate qualifications of a mediator for cases involving child support or other financial-based issues. This debate is discussed in further depth in the "Staffing" section of this report.

Numerous studies have been done about the relative advantages and disadvantages of utilizing a mediation model. Noted advantages over traditional courtroom approaches include: less expense to the parties; less complexity attached to the procedure; more straightforward access; less emphasis on treating each other as opponents; and more satisfactory resolution of the case for the parties even if they do not reach an agreement between themselves. In 1991, the California Family Court Services conducted a study of existing custody and visitation mediation programs in the state and concluded:

Among parents who did not reach an agreement, nearly nine out of ten said that procedures were clear and that the mediator offered good ideas; eight out of ten said that mediation was a good way to come up with a parenting plan; and six out of ten reported that mediation helped them to see new ways to work together as parents and connected them with community resources.¹⁸

However, there is a lot of variation in administrators' opinions about whether or not child support is suited to the mediation process, particularly when there are child support guidelines in place. In Michigan for instance, the Friend of the Court Office separates child support determinations and the other financial issues from the mediation process. In that state, one employee of the Friend of the Court conducts mediation for custody and visitation and another employee acts as an investigator for the case, independently responsible for gathering financial information. The benefit of this approach is that the investigator on the case can take all necessary measures¹⁹ without jeopardizing the relationship with the parties fundamental to mediation.

Further, one of the objectives of implementing guidelines is to take the element of arbitrariness out of the amount of child support that is going to be assessed. It could be detrimental to this policy goal to set up a system whereby the party seeking child support finds herself or himself in the position where she or he is bargaining for child support in exchange for a "custody or visitation trade off." A general trend in mediation is to take a comprehensive approach to a family case, thereby treating all of the outstanding issues as interrelated. Child support guidelines designed to be determinative challenge this kind of approach.

An alternative would be to set up mediation for the negotiation of child support as an independent issue. The benefit of this approach would be to foster better relations between the parties for ongoing interaction and to make the obligor or debtor feel more included and validated in the process, hopefully promoting enough goodwill with this person that he or she will feel more inclined to participate in developing a child support payment schedule. On the other hand, it may turn out that uncooperative debtors or obligors would not even show up for these mediation sessions.²⁰

In some jurisdictions, the single issue of child support is recognized and treated as an issue amenable to a mediation process in its own right. In places where these attempts to discuss an appropriate level of child support are made, the focus rests on receiving feedback about some of the parties' concerns.

This approach has been established to a certain extent in parts of California as will be discussed in following sections of this report. In addition, Montana's system is basically a mediation-arbitration process as will be discussed; however, the role of mediation is crucial to this system and is centred only on child support. This program is administered by the child support agency responsible for Title IV-D cases.

In Texas, a similar approach is taken through the holding of a negotiation conference early in the child support process. This negotiation conference is part of the Child Support Review Process which operates as an alternative to court when possible for establishing, modifying and enforcing child support orders for Title IV-D cases, including social assistance and applications for the Division of Child Support's services.

The Texas child support guidelines are based on a fixed percentage of the obligor's net resources with allowed adjustments for multiple family obligations. The court also retains discretion to vary from the guidelines if the application of the guidelines is considered to be unjust or inappropriate under the circumstances.

At the initial stage of the Review Process, the case is screened in order to determine whether or not it is appropriate for the negotiation conference process. A significant factor considered is whether or not the case is relatively straightforward. If it is, it will likely be considered appropriate for the negotiation conference review. Cases involving more complicated issues are directed to the court. If it is determined to be appropriate, a Notice of Child Support Review is then sent to both parties to describe the process and to give the parties the choice about whether or not they wish to pursue this avenue.

In addition, the parties are requested to complete a financial resources affidavit and to return this information within 15 days. If the required information is not submitted, the division may commence legal action right away.

An experienced review officer is responsible for both screening the cases and conducting the negotiation conference with the two parties. The goal of the process is to reach consensus between the parties if possible without the need to proceed to a court hearing. Thus, the conference involves the review officer attempting to facilitate agreement between the parties on the issue of child support.

Some commentators challenge the effectiveness of mediation in regard to addressing gender inequalities and other power imbalances that might exist between the two parties. For instance, the view has been expressed that:

From early childhood, women are socialized to be other oriented and cooperative and men are taught to be autonomous and competitive. This socialization process, when carried into mediation, has the potential to result in unfair agreements ... women enter mediation to avoid hostility whereas men enter because they think they will get a better deal.²¹

Similar criticisms could be directed to the use of mediation in circumstances where one of the parents, usually the woman, finds herself in a substantially lower economic position than a male partner. This phenomenon is particularly relevant in the case of parents receiving social assistance. For this particular category of cases, the implementation of a mediation-based model poses special difficulties. In many jurisdictions such as British Columbia, the governing legislation specifies that the parent on social assistance must make all attempts to secure the maximum amount of child support available or her or his entitlement to social assistance may be jeopardized. In other words, the parent on social assistance may not legally be in the position to negotiate about a child support amount. In addition, the economic disparity between the parties might also affect the mediation process.

These same observations might also apply in regard to an abusive relationship where the abuse of one of the parents by the other is either blatant or more subtle. Most existing mediation programs have already addressed this problem to a certain extent. Many programs involve some form of screening procedure aimed at detecting evidence of abuse prior to the first mediation session. The screening process may include procedures such as the following:

1. the mediator or another staff member meeting separately with one or both of the parties ahead of time to ask about whether or not there has been and/or could be abuse;²²
   
   
2. screening court files for evidence of abuse such as applications by one of the parties for a restraining order or peace bond against the other party; or
   
   
3. asking the two parties to independently submit written statements or to complete prepared forms prior to the mediation process, to the effect that there is no abuse and probably will not be on the part of one or the other of the parties.
   

None of these approaches alone will adequately address the issue of abuse in all cases. The dynamics of abuse are complex and call for a great deal of sophistication and relevant experience on the part of staff involved in the process. The staff must be able to both quickly identify and then appropriately deal with the situations as they arise. Abuse and poverty are significant societal factors that must be addressed in any effective child support model. Relevant sensitivity training for staff and consistent follow-up policy are imperative. Many if not most of those persons most in need of accessing and using the child support process may be dealing with these phenomena in their lives. Ongoing consultation with interest groups and specialized experts is fundamental throughout the entire implementation and evaluation phases to make sure the needs of these people are adequately met.

E. Mediation - Arbitration ("Med/Arb")

Several of the programs surveyed in this report contain elements of mediation-arbitration or "med/arb" to varying degrees. Commentators' opinions are mixed about whether the two functions, mediation and arbitration, are reconcilable when carried out by the same person. The functional merit of such a program seems to depend on a number of factors including:

1. the level of skill of the mediator-arbitrator, both in terms of interacting effectively and being able to draw upon a relevant base of knowledge;
   
   
2. the issues addressed during the med/arb (i.e., open-ended or an identifiable best solution); and
   
   
3. the amount of respect the parties have for the mediator-arbitrator.
   

Some commentators suggest the notion of med/arb might in fact be more commonplace than one might initially think. In other words, the blending of mediation with a recommending function already exists in a number of diverse programs. In other words, those mediation programs where both mediation is conducted and evaluations are made represent an informal kind of med/arb service if one views the act of making a recommendation, or providing an evaluation to the court, places the mediator in the position of assessing the relative strengths of either party's case.²³

This emerging role of mediators in some programs contrasts with the traditional role of a mediation program staffed by mediators who only facilitates agreement between the parties themselves without providing further services for the court. Those programs where mediators conduct mediation sessions, and subsequently make recommendations to the court, function successfully in a number of jurisdictions. The general trend is that most of these mediation programs are focused on custody and access; however, there is no reason why financial evaluations could not be done through a similar process.

In a 1991 study done in California, the state's Family Court Services compared the effectiveness of mediation programs which authorize recommendations with non-recommending mediation services. The findings were as follows:

In courts that authorize recommendations, 81 percent of the clients said that they did not feel rushed in mediation; in courts that do not authorize recommendations, the number increased to 88 percent. In courts that make recommendations, 84 percent of the clients said that they did not feel pressured to go along with things that they did not want; the number rose to 89 percent of the clients in courts that do not authorize recommendations. In courts that authorize recommendations, 90 percent of the clients felt that the mediator listened to their concerns; the number escalated to 95 percent in non-recommending courts. It was relatively rare that clients agreed that they felt intimidated about saying what they really felt, particularly in a non-recommending court. In courts authorizing recommendations, 82 percent of the clients said that they did not feel intimidated saying what they felt; in courts where recommendations are not authorized, the number rose to 88 percent.²⁴

A med/arb model could potentially be staffed by more than one neutral person. For instance, the concept of "shadow mediation" involves:

... an additional separate mediator who "shadows" the arbitration phase of mediation-arbitration. The separate mediator generally monitors the pre-hearing activities and then joins the mediation-arbitration during the arbitration hearings if the arbitration hearings if the case reaches this stage. The separate mediator is available if either party wishes to stop the arbitration hearings and mediate a particular issue that may arise.²⁵

Cecil Branson supports the concept of shadow mediation as a viable option despite the possible heightened cost. According to Branson:

Under this system, the adjudicative neutral will not be tainted by hearing ex parte confidential information in caucus. Its disadvantage ... is its additional cost brought about by the need for the presence of two neutrals throughout the arbitration. On the other hand, you are likely to be better able to acquire good neutrals for each function, whereas it may not be easy to find two with a high level of skill in both operations.²⁶

Despite potential drawbacks of the one-person approach, having only one person involved could be the most resource efficient med/arb model as it would only involve one person both conducting the mediation and then following through from that stage. As Richard McLaren and John Sanderson state, "if one person does both the mediation and arbitration phases, a good deal of time, resources and money is saved as less time is required in providing the necessary background information to the arbitrator."²⁷

However, McLaren and Sanderson also caution that "different skills are required to generate discussion and resolution in the mediation phase than are required during arbitration."²⁸ They further identify the need not to cloud decision-making during the arbitration stage with information gained during mediation. It is necessary that the "facilitator be highly knowledgeable in the pertinent areas of the law, be able to hear evidence, make findings of fact, undertake legal analysis and apply the law appropriately."²⁹ Further, Catherine Morris cautions that in a med/arb model, caucusing and meetings with only one of the parties at a time would pose challenges to the effectiveness of the model.³⁰ With regard to due process rights that exist in this country, the mediator turned arbitrator would have to display equal deference toward each of the parties throughout the entire process. This requirement would preclude any indication that one of the parties had received special treatment and the other had not. Such an appearance would entirely obliterate the overall objective being sought through implementation of the model.

Alternative Dispute Resolution - the Judiciary's Example

There exists an increasing trend in the courts for members of the judiciary to become involved in dispute resolution prior to conducting a formal hearing. This growing trend is likely attributable in part to the judiciary's recognition that in many circumstances, alternative dispute resolution would make the most sense and that, often, the avenues to have matters settled before formal hearings simply do not exist in an adequate form or, in other situations, are not known about by the parties.

The judiciary's growing role in alternative dispute resolution is seen in a number of existing programs. For instance, in British Columbia, the Chief Justice of the province's Supreme Court sent out a notice effective January 1, 1996, stating that all family matters commenced under either the Divorce Act or the provincial legislation in the Vancouver Registry would first be scheduled for an "Early Intervention Hearing" during which the parties and their lawyers meet informally with an Early Intervention (EI) judge to discuss the case and if possible, to arrive at a resolution before the matter is scheduled for a hearing before a supreme court justice. In a British Columbia Supreme Court "Direction to Profession," dated December 29, 1995, the purposes of the early intervention hearing are identified as follows:

1. to identify legitimate issues and to reduce those which are clearly frivolous or unnecessary;
   
   
2. to reduce the number of unnecessary interim applications or to reduce the time required for an application by clarifying the true issues for the application;
   
   
3. to reduce the number of actions set for trial and to minimize the length of trials by early identification of real issues; and
   
   
4. to help reduce the delay of litigation and the costs to the litigants.
   

The early intervention hearings are scheduled to last for between 30 and 45 minutes. If necessary, a second session is scheduled with the parties. In most cases, the judge makes a recommendation to the parties about what the most appropriate course of action would be.³¹ Preliminary unofficial figures suggest this program is resulting in a high percentage of cases settling during the Early Intervention Hearing.³²

This model resembles other comparable approaches with titles such as settlement conferences, case conferences and pretrial conferences which have been set up in numerous jurisdictions and for numerous purposes.

In Saskatchewan, every person filing an application for a family matter must first go through a screening process to assess whether or not the case is amenable to mediation. The parties must go through this process before a matter is scheduled for a pretrial conference. Every case is scheduled for one of these conferences. At the pretrial conference, a judge meets with the parties and their counsel in a private room, attempting to affect a settlement of the issues. The judge is not the judge who will conduct the hearing. This process differs from mediation in that a judge is in a better position than a mediator to assess the likely outcome of the case should the matter proceed to trial. If the parties do not settle the issues, the judge will provide an opinion as to the likely outcome should the matter proceed to a hearing. The judge's opinion is not binding but it is hoped that it is somewhat persuasive in situations where the matter need not proceed to a formal hearing. In most of these programs, the judge who conducts the initial conference is not the same judge as the judge who will ultimately conduct the hearing.

The proactive role of the judiciary may play out in a workable child support model; however, prior consultation with the judiciary would be the first step to assessing the viability of incorporating an initial administrative mechanism with this forum. If this approach were to be incorporated into a model, it would be important that the parties' positions be clearly articulated and well-organized for presentation so as to reduce the amount of time required during the conference. There would need to be resources dedicated to this preparation function. If the parties have not had the opportunity to collect and organize the relevant materials which ultimately would be produced as evidence for the hearing, a primary objective of these early dispute resolution mechanisms will be lost.

The state of Connecticut has set up a procedure that is similar to these judicial dispute resolution processes. In the Connecticut process, the person conducting the pretrial meeting with the parties is not a judge. However, the meetings are scheduled on the court docket and take place in the courthouse.

In the Connecticut model, senior-level family relations counsellors from the Family Division Service Unit of the Connecticut Superior Court conduct pretrial settlement conferences for divorce cases before the court. These counsellors have a considerable amount of experience in dealing with legal issues and interact with attorneys on a regular basis. The conferences are mandatory and must be attended by the parties before a judge will hear the matter. Generally, they are scheduled on the same date as the hearing so it will be more likely that the parties will show up and be prepared.

During the pretrial settlement conference, any outstanding issues relating to the divorce action may be addressed. The family relations counsellor basically functions as a "pre-trier" of the case and will recommend an appropriate solution for the parties should they not arrive at their own consensus. Although the settlement conference is not binding on the parties, the recommendation separates this process from mediation in the traditional sense. If the parties do reach an agreement during the conference, they can immediately go before the judge to have the agreement put on the record without the need to proceed to a full hearing.

Child support is among the issues that may be addressed during this process. The conference provides the appropriate time for one or both of the parties to provide the required financial information. The state's child support formula is based on income shares based on both parents' net income. Potential areas of departure from the formula include other financial resources (aside from income) available to one of the parents, extraordinary expenses for care and maintenance of the child(ren), extraordinary parental expenses, the needs of one of the parent's other dependents, coordination of total family support and special circumstances. If the parties arrive without the information required for the child support formula calculations, they will be told to fill out the forms provided by the family counsellor while another conference is held.

F. Quasi-Judicial Hearing Officer Systems

The "hearing officer" model operates with some variation throughout many jurisdictions. Notably, throughout the United States, many jurisdictions have implemented hearing officer programs to function within the federally funded Title IV-D program. From state to state, the functions of the hearing officers vary over and beyond Title IV-D child support cases. It is general practice that the hearing officers also deal with disputed paternity cases on behalf of the court in the given jurisdiction. Title IV-D cases arise out of federal legislation which addresses particular child support cases. Not included in this category of cases are divorce cases and cases involving parties not on social assistance who have not applied for the services of the Title IV-D program.³³ These categories of people would have child support dealt with alongside other family issues in the court process. In most jurisdictions, the court process would involve a judicial hearing and where deemed appropriate either by the parties themselves or by the judge, alternative dispute resolution services such as mediation.³⁴

For Title IV-D cases, the various hearing officer systems constitute certain states' responses to the federal government's requirement to establish expedited child support models in order to be eligible for federal funding. Therefore, the split between Title IV-D cases and other child support cases is predominantly a function of government resources. There is no philosophical reason why a Title IV-D hearing officer program could not to be modelled and implemented more widely to apply to any child support application in a Canadian province.

The Nevada hearing master model is fairly standard for those states where expedited child support hearing processes have been established. As such, the Nevada model illustrates some of the aspects of the typical American Title IV-D hearing officer program. The Nevada child support guidelines establish that the obligor owes a percentage of his or her gross income based on the number of children receiving support from that parent. In other words, the more children the obligor supports, the higher the percentage it will be that he or she owes out of his or her gross income. Criteria for departure from the basic calculation include: the costs of health insurance, child care and special educational needs of the child(ren), any responsibility for supporting others, the value of the services contributed by each parent, public assistance paid to support the child, the mother's pregnancy costs (if applicable), transportation to and from visitation in certain situations, the time the child(ren) spend with each parent, other expenses for the child(ren) and the parents' relative income.

Disputed title IV-D child support cases are automatically heard by the hearing officer. There is no requirement for the case to first be included on the general court list, nor is there a requirement that the case be referred by a judge to this forum. Rather, this category of cases is dealt with through the hearing master process. The hearing master hears from both parties and then makes a recommendation to the judge. The master has the following powers:

To procure the attendance of witnesses by issuance of subpoenas; to require the production of evidence; to swear witnesses; to take evidence and to rule upon its admissibility; to hear arguments; to make findings of fact, conclusions of law and to make recommendations regarding establishing paternity, establishing and enforcing child support, which, if approved by the Family Division Presiding Judge, become an order/judgement of the court; and to contribute to process improvement between agencies involved in this field.

In the absence of an objection filed by one of the parties to the hearing within a clearly identified time frame, the judge approves the hearing master's recommendation. If an objection is received by the court, the parties are then entitled to a trial de novo. In this way, the Title IV-D hearing master cases are dealt with very efficiently through the process. Like most other states,³⁵ the hearing master in Nevada must be an attorney with related experience.

A feature worthy of consideration in the Nevada model is the role of case workers in the District Attorney's Office prior to the case going before the hearing officer. Case workers are technically the clerical staff of the District Attorney's Office. They are the persons responsible for making initial contact with the parties and as such, are encouraged to make attempts to have the obligor negotiate an agreement. Although not formal mediation, the Nevada process allows for this preliminary attempt at settling the child support issue before it proceeds to the hearing officer for consideration.

As a point worthy of note, prior to the establishment of the specialized family court and the appointment of hearing officers in Nevada, the judiciary was assisted by domestic referees. This system was in place between 1984 and 1992. The referee system was implemented in response to the recognized court backlog within the family courts. The referees, selected by the local district courts, were practicing attorneys and, as referees, heard first motions for custody evaluation, visitation and child support. With the creation of the family court in the state, six new family court judge positions were created and the domestic referees were phased out.

California's child support formula is based on a percentage of the parents' net disposable income, adjusted according to the percentage of time each parent has primary physical responsibility for the child. Reasons for departing from the formula could include the parties' stipulation to another amount of child support, extraordinarily high income of the parent ordered to pay child support, a parent's failure to contribute to the child(ren)'s needs commensurate with that same parent's custodial time or the application of the formula would be unjust or inappropriate due to extraordinary circumstances.

The State has traditionally been more focused on the judicial processes than many other states. However, Assembly Bill no. 1058, at the time of writing before the California Senate, contains a proposal for reform in the state. This proposal concerns the appointment of child support commissioners throughout the state. Unlike states such as Nevada, California currently does not have in place a uniform expedited system for dealing with child support issues although some counties' superior courts employ commissioners who are funded at least in part through the federal government's Title IV-D program. However, there is a growing acknowledgement in the state of the need to have an expedited process set up, particularly for cases where a party seeks to have an existing child support order modified.

Article 3 of Assembly Bill no. 1058 outlines a proposed "Simplified Procedure for Modification of Support Order."³⁶ Subsection 3680(1) of the bill states, "There is currently no simple method available to parents to quickly modify their support orders when circumstances warrant a change in the amount of support." Among some of the recommendations contained in the proposed legislation are suggestions to adopt rules of court and forms for a more simple method of modifying child support. In addition, the superior court in every county would be required to employ enough commissioners to hear Title IV-D cases through an expedited hearing process.

In regard to the specific recommended commissioner process, the proposed legislation would introduce a statewide system similar to the hearing officer process operating in other states. The proposed legislation states:

The parties shall also be advised by the court prior to the commencement of the hearing that the matter is being heard by a commissioner who shall act as a temporary judge unless any party objects to the commissioner acting as a temporary judge.³⁷

In addition to child support, the commissioner would also be empowered to join issues of custody, visitation or protective orders and upon this joiner, refer the parents for mediation, accept stipulated agreements and refer contested issues to either a judge or another commissioner for a hearing. The commissioner would basically function as a "temporary judge."

Unlike their quasi-judicial counterparts in other states, the Michigan Friend of the Court referees have wide authority for conducting hearings. A referee conducts hearings for a number of family law issues, including child support. In some areas of the state, referees are senior level Friend of the Court employees who do not usually have legal training. In other districts, the referees are senior level attorneys. The referee derives authority from the Michigan Friend of the Court Act. Subsection 7(2) of the Act states:

A referee may do all of the following:

1. hear all motions in a domestic relations matter, except motions pertaining to an increase or decrease in spouse support, referred to the referee by the court;
   
   
2. administer oaths, compel the attendance of witnesses and the production of documents, and examine witnesses and parties;
   
   
3. make a written, signed report to the court containing a summary of testimony given, a statement of findings and a recommended order; or make a statement of findings on the record and submit a recommended order;
   
   
4. hold hearings as provided in the Support and Parenting Time Enforcement Act. The referee shall make a record of each hearing held;
   
   
5. accept a voluntary acknowledgement of support liability, and review and make a recommendation to the court concerning a stipulated agreement to pay support; and
   
   
6. recommend a default order establishing, modifying or enforcing a support obligation in a domestic relations matter.
   

The usual practice of the referee then, is to make recommendations to the presiding judge. The referees function only in some districts; the role of the officials varies based on local court practices. A referee becomes involved with a particular case by order of the court. The referee might hear an application for either a temporary or a final order in regard to the enumerated items.

Many of the existing programs involve only the hearing of the facts and a recommendation based on those facts. However, if the hearing officer were skilled and if it were appropriate, mediation-arbitration functions could clearly be carried out at this stage of the process. This approach has already been incorporated into some of the specific models to be highlighted in the next section of this paper.

¹ (1979), 16 B.C.L.R. 378 (B.C.S.C.).

²[1938] S.C.R. 398.

³[1982] 1 S.C.R. 62.

⁴[1981] 1 S.C.R. 714.

⁵Peter Hogg, Constitutional Law of Canada, Vol. 1, 3rd ed. (Supplemented), Toronto: Thomson 1992, at 7-33.

⁶[1989] 1 S.C.R. 238.

⁷Supra note 5.

⁸In his book Constitutional Law of Canada, Peter Hogg also cites case law which establishes that either absence of the first requirement (Massey-Ferguson Industries v. Govt. of Sask., [1981] 2 S.C.R. 413) or of the second (Capital Regional District v. Concerned Citizens of B.C., [1982] 2 S.C.R. 842) is independently a sufficient basis to have the power be considered non-judicial.

⁹Supra note 5, at 7-34.

¹⁰Family Court Clinic: Presentation to the California Judges Association (October 6, 1996, Monterey, California) by Constance Jiminez, Director, Family Court Clinic, Santa Clara County Superior Court, at 2.

¹¹Ibid.

¹²See Washington Administrative Code (WAC) 388.14-300 and 388.14-310.

¹³ Expected amendments to United States federal legislation will have the effect of removing this automatic three-year review.

¹⁴The administrative approach versus the judicial-based systems operating in other states.

¹⁵This document outlines to the parties their respective rights (i.e., right to an administrative hearing within a fixed period of time) and responsibilities.

¹⁶"Child Support Assessment Application: Notice of Acceptance, Assessment and Registration," Child Support Agency, Australian Taxation Office, reproduced by Jan Bowen, Child Support: A Practitioner's Guide (Brisbane: The Law Book Co. Ltd., 1994), at 135. The employment details are used for the purpose of collection which usually takes place through direct payroll deductions.

¹⁷Ibid., at 144.

¹⁸California Family Court Services Snapshot Study, Report 3, California Family Court Services Mediation 1991, Client Evaluations of Mediation Services: The Impact of Case Characteristics and Mediation Service Models, California Administrative Office of the Courts, January 1994, at 3.

¹⁹These measures are discussed in the section of the report entitled "Friends of the Court - Michigan."

²⁰This problem is dealt with in some places through mandatory mediation.

²¹Marie O'Neill, Toward Common Ground: Mediation, the Courts, Feminism and Parent Education, A Major Paper Submitted in Partial Fulfilment of the Requirements for the Degree of Masters in Social Work, Vancouver: March 1995, citing various sources, at 80.

²²Some commentators suggest having the mediator carry out this function could be problematic in either lawyer-based mediation or mediation-arbitration where the impartiality of the mediator is central to the entire process.

²³It should be noted that in some recommending mediation models, two separate people are often involved in the two separate functions of conducting mediation and then making a report to the court. For instance in the British Columbia family court counsellor program, the policy is that the same counsellor who conducts the mediation session cannot subsequently conduct a custody and evaluation investigation and make a report to the court for the same case - the two functions are clearly separated in this way.

²⁴Supra note 18, at 6.

²⁵Richard McLaren and John Sanderson, Q.C., Innovative Dispute Resolution: The Alternative (Toronto: Thomson Canada Ltd., 1994), at 6-9.

²⁶Cecil Branson, Q.C., Alternatives in Dispute Resolution, unpublished, 1996.

²⁷Ibid., at 6-2.

²⁸Supra note 27, at 6-2.

²⁹Supra note 27, at 6-2.

³⁰ Catherine Morris, Arbitration in Family Law Disputes in British Columbia, unpublished, 1988.

³¹Occasionally, the same judge conducting the Early Intervention Hearing also presides at the trial, should the matter proceed to that level. However, the same judge would not sit in those situations where the judge recommended a matter not proceed and the party or parties decided to go ahead in any event.

³²Another new pilot project is about to get under way in New Westminster with an aim similar to the Early Intervention Hearings: to reduce delay, expense and entrenched positions. This pilot differs from the Early Intervention Hearing in that it will come into effect when the first interlocutory application is filed and from then on, a designated judge or master will have conduct of all the subsequent steps (included those steps in a "litigation plan") prior to the trial.

³³ The Title IV-D program services are available to the public upon request.

³⁴As will be discussed in this report, not all existing mediation services offer mediation for the issue of child support.

³⁵There are some notable exceptions to this general rule. For instance, in New Jersey, the required educational background for a hearing officer consists of graduation from an accredited college with a bachelor's degree in psychology, sociology, criminology or a closely related field. In addition, the qualified candidate would have three years professional experience in a public or private social services agency performing family support related functions.

³⁶Assembly Bill no. 1058 (February 23, 1995), Introduced by Assembly Member Speier, California Legislature - 1995-96 Regular Session. This is the same legislative proposal which contains provision for family law facilitators to be appointed statewide.

³⁷Ibid., s. 4251(b).

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