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Good, Responsible Parenting: Child-Support Guidelines in an Era of Neo-liberalism

Published online by Cambridge University Press:  18 July 2014

Krista Robson
Krista Robson
Affiliation:
Department of Humanities & Social Sciences, Red Deer College, 100 College Blvd. Red Deer, AB T4N 5H5,Canada, krista.robson@rdc.ab.ca
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Abstract

Following decades of criticism, the federal government amended the Divorce Act in 1997 to include guidelines and support tables for the determination of child-support orders. The guidelines were meant to replace a child-support system that relied heavily on judicial discretion, which was blamed for the inconsistency between awards, the inadequacy of the amounts awarded, and inequity in the system. Normative messages about parental responsibility and good behaviour were reinforced in the new child-support regime. Through an analyses of case law, government documents, and interviews with lawyers, unique insight is gained in expanding our understanding of what is happening “on the ground,” beyond the “black letter of the law,” pursuant to the child-support law reforms. This article outlines the dominant message about responsibility that parents receive when they encounter child-support law. Further, it is necessary to consider the socio-economic context in which these reforms have occurred, as they have significant implications for the family in today's society. In the current climate of neo-liberalism, the reformed child-support legislation might be seen as one strategy in the state's reconfiguration of responsibility for the welfare of children. This research demonstrates that while the rationalization of child support has achieved some key objectives, it will fail as an anti-poverty measure.

Résumé

Après des dizaines d'années de contestations, le gouvernement fédéral modifiait la Loi sur le divorce en 1997 afin d'y inclure des lignes directrices ainsi que des tableaux pour la détermination des ordonnances de pensions alimentaires pour enfants. Ces lignes directrices avaient pour but de remplacer le système de pensions alimentaires qui dépendait largement sur la discrétion judiciaire, à savoir un système tenu responsable pour l'allocation de montants incompatibles, insuffisants et inéquitables. Les messages normatifs à propos de la responsabilité parentale ainsi du bon comportement ont été renforcés par le nouveau système des pensions alimentaires pour enfants. L'analyse de la jurisprudence, des documents gouvernementaux ainsi que des entrevues avec des avocats contribue à une meilleure compréhension de ce qui se passe sur le terrain, au delà de la «lettre de la loi», en vertu de la réforme du droit en matière des pensions alimentaires. Cet article souligne le message dominant que reçoivent les parents à propos de la responsabilité lorsqu'ils sont assujettis au droit en matière des pensions alimentaires pour enfants. En outre, il est nécessaire de considérer le contexte socio-économique dans lequel ces réformes ont eut lieu puisqu'elles ont des implications importantes pour la famille dans la société d'aujourd'hui. Dans le contexte néo-libéral actuel, ces nouvelles dispositions législatives peuvent être interprétées comme une stratégie de l'État dans la reconfiguration de la responsabilité envers la protection du bien-être des enfants. Quoique la rationalisation des pensions alimentaires pour enfants ait atteint des objectifs clés, cet article démontre comment celle-ci a échoué comme mesure de lutte contre la pauvreté.

Keywords

child-support guidelineslaw and familyparental responsibilityneo-liberalismlignes directrices concernant les pensions alimentaires pour enfantsdroit et familleresponsabilité parentalenéo-libéralisme
Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 25 , Issue 2 , August 2010 , pp. 129 - 148
Copyright
Copyright © Canadian Law and Society Association 2010

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References

1 Family Law Committee (Federal/Provincial/Territorial), Child Support: Public Discussion Paper (Ottawa: Queen's Printer for Canada, 1991)Google Scholar.

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11 It was clear in the policy-development phases of the Guidelines that the government had chosen to define the child-support “problem” narrowly. Of the two explanations put forth regarding the difference in standards of living between many custodial and non-custodial households—first, that family resources are not sufficient to provide adequate child support, and, second, that available resources are not being shared in a manner that would allow all family members to benefit from similar standards of living—only the latter became the “problem” that the Guidelines were meant to resolve. Family Law Committee, Child Support, 3Google Scholar.

12 Case law was taken from the MacDonald, James and Wilson, Ann, 2002 Annotated Divorce Act (Toronto: Carswell, 2002)Google Scholar, a mainstream legal textbook that interprets case law for the purpose of educating lawyers and judges. This generated a total of 63 judicially decided child-support cases. These cases originate from a variety of provinces and cover the period from 1971 to 2002, although the majority date to the period 1997–2002.

13 Department of Justice reports and documents covering the implementation and evaluation of the federal Child Support Guidelines were analysed, including documents produced by the Department of Justice's Child Support Team. All documents are available through the Department of Justice's Web site on child support, http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/rep-rap/index.html

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17 The Divorce Act applies to the determination of child support, custody, and access in cases of divorce; provincial legislation applies to couples who were never married and to couples who are married and have separated but are not getting a divorce. Amending the Guidelines to the Divorce Act also granted the provinces and territories the opportunity to either adopt the federal Guidelines or develop their own provincial guidelines for child-support cases.

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23 Guidelines, s. 1(a): “to establish a fair standard of support for children that ensures they continue to benefit from the financial means of both spouses after separation.”

24 All participant names given here are pseudonyms.

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27 Ibid., 5.

28 Guidelines, s. 1(d): “to ensure consistent treatment of parents or spouses and their children who are in similar circumstances.”

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30 Naffine, Ngaire, Law and the Sexes: Explorations in Feminist Jurisprudence (Sydney: Allen & Unwin, 1990)Google Scholar. The determination of child support has essentially been reduced to a mathematical exercise under the objective and standardized Guidelines. What is potentially problematic in this is the lack of recognition of the implications of applying gender-neutral “rules” to post-divorce families that are gendered in terms of the division of labour and the consequences of divorce.

31 Information on provincial responses to non-payment of child support was obtained from the Web sites of provincial and territorial maintenance-enforcement programs and/or ministries of justice. Information on federal responses to non-payment of child support was obtained from the Department of Justice's Web site on the Child Support Program.

32 As of August 2009, Alberta, Saskatchewan, Manitoba, Prince Edward Island, Newfoundland and Labrador, and Yukon.

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34 Guidelines, s. 1(b): “to reduce conflict and tension between spouses by making the calculation of child support orders more objective.”

35 In a survey of judges and lawyers, Paestsch et al. found considerable consensus that cases had been settled more quickly since the implementation of the Guidelines. Further, in cases involving litigation, “the issues to be resolved were more defined and focused than prior to implementation of the Guidelines”: Paetsch, Joanne, Bertrand, Lorne, and Bala, Nicholas, The Child-Centred Family Justice Strategy: Survey on the Practice of Family Law in Canada, 2004–2006 (Ottawa: Minister of Justice and Attorney General of Canada, 2007), 21Google Scholar.

36 The lawyers described “straightforward” cases as those in which the payor's income is not in dispute and the custodial arrangement is “typical” (non-custodial parent has access less than 40% of the time).

37 For research on how CFL is operating in various jurisdictions in Canada see Keet, Michaela, Wiegers, Wanda, and Morrison, Melanie, “Client Engagement Inside Collaborative Law,” Canadian Journal of Family Law 24 (2008), 145–204Google Scholar; Macfarlane, Julie, The Emerging Phenomenon of Collaborative Family Law (CFL): A Qualitative Study of CFL Cases (Ottawa: Minister of Justice and Attorney General of Canada, 2005)Google Scholar; Wiegers, Wanda and Keet, Michaela, “Collaborative Family Law and Gender Inequalities: Balancing Risks and Opportunities,” Osgoode Hall Law Journal 46 (2008), 733–72Google Scholar.

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44 “Shared custody” is defined by s. 9 of the Guidelines and includes situations in which the child(ren) spend(s) 40% or more of their time with the non-custodial parent. More generally, within the current family law discourse, the idea of shared custody is meant to encompass more than just the custodial arrangement: “It assumes that there will be an agreement between parents about the sharing of other parenting responsibilities, about decision making with regard to their children and about the expenses associated with raising the children.” Gill, Rick, Shared Custody Arrangements: Pilot Interviews with Parents: Background Paper [2004-FCY-5E] (Ottawa: Department of Justice Canada, 2004), 2Google Scholar.

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55 Wanda Wiegers suggests that initiatives like the Guidelines, as well as the National Child Benefit (introduced in 1998) and Early Childhood Development (introduced in 2000), align well with neo-liberal philosophy and practice: not only are they based on the image of the “helpless, dependent, and innocent victim [i.e., ‘the child’] as the basis for relief,” but the maintenance of these programs “reinforces the increasingly moralistic and individualistic tenor of poverty discourse”—that is, holding individuals responsible for their own welfare. Wiegers, , “Child-Centred Advocacy and the Invisibility of Women in Poverty Discourse and Social Policy,” 254Google Scholar. See also Brodie, , Politics on the BoundariesGoogle Scholar.

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60 For families with low incomes, even if child support is paid, the child-support orders will not be enough to maintain a reasonable standard of living for children. For instance, the child-support tables include a minimum income level for which child support can be ordered; in Ontario, this is $8,100. A non-custodial parent earning $8,100 would be required to pay $1 per month for child support for one child; if there were two or more children, this figure would go up to $2 per month (total, not per child). Federal Child Support Amounts: Simplified Tables—Ontario, http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/legis/fcsg-lfpae/tables2006/on_1.html. At this level, it is hard to argue that this is anything more than a purely symbolic gesture. Yet what it symbolizes is significant: in the end, it would mean that this “family” is taking care of itself, within its own means.

61 These “special squads” were to have access to databases across the province, such as the Ministry of Transportation's lists of vehicle licences. A key task for the squad was to conduct intensive searches for parents who had moved without giving a forwarding address. Ministry of Community and Social Services, “McGuinty Government Takes Action to Help Families Get the Support They Are Entitled” (Press release, February 6, 2004), http://ogov.newswire.ca/ontario/GPOE/2004/02/06/c7357.html?lmatch=&lang=_e.html.

62 Ministry of Community and Siocial services, “McGuinty Government Makes Ontario a Leader in Enforcing Family Support Payments” (Press Release, June 9, 2005), http://ogov.newswire.ca/ontario/GPOE/2005/06/09/c0032.html?lmatch=&lang=_e.html.

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76 It should be noted that the Guidelines have led to increased claims for more access or primary custody by fathers. Specifically, it is the Shared Custody section and the possibility of child-support table amounts' being reduced if access is over 40% of the child's time that created a new incentive to request more frequent access. Accusations that these claims are often insincere, born more out of financial concerns than out of a desire to share more of the practical care of children, have been made by those closely following the fathers' rights movement in Canada: see Boyd, , Child Custody, Law and Women's WorkGoogle Scholar; Boyd, Susan and Young, Claire, “Feminism, Fathers' Rights and Family Catastrophes: Parliamentary Discourses on Post-Separation Parenting, 1966–2003” in Reaction and Resistance: Feminism, Law and Social Change, ed. Chunn, Dorothy, Boyd, Susan B., and Lessard, Hester, 198–228 (Vancouver: UBC Press, 2007)Google Scholar.

77 This phrase is inspired by the following statement made by academic Ross Finnie to the Senate Committee (on Child Support): “A guideline is, of course, directed towards maintaining the well-being of children … However, you want to do that in a manner fair to both parents because there are two parents involved … Wrapping oneself in the flag of the well being of children is doing a disservice to the political process of looking for a fair guideline, and in turn, a guideline that will work effectively in practice, part of which depends on fairness.” Evidence Proceedings of the Standing Committee on Social Affairs.