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Child's standard of living: enforcing child support.

The refusal of the Supreme Court of Canada to regard Ms Thibaudeau as discriminated against left the taxation of support payments exactly where it was, and at writing, where it remains. Child support payments are taxable in the hands of the recipient, the custodial parent, and deductible by the payor, the non-custodial parent.

Whether it is the tax treatment of child support payments or steps being taken to ensure that support payments are made, the central issue for all of us should be to ensure that children are provided for through support payments that are sufficient in amount and efficient in their enforcement.

Stories abound about how support payments are or are not enforced. Our purpose here is to suggest some alternative measures that can be used to enhance the payment of court-ordered child support.

Enforcement -- The Present

In Alberta, child support orders within a divorce action are administered through the Maintenance Enforcement Program, Department of Justice. If a recipient does not want her order automatically enforced, she must advise the Director of Maintenance Enforcement, in writing, that she wants to withdraw from the enforcement program. Similar programs exist in other provinces.

Currently, enforcement procedures include attachments similar to a garnishee upon a payor's income or various bank accounts. Renewal of driver's licences may be delayed until a payor has brought support payments up to date. Payment schedules that address arrears or promote orderly and continuous payment can often be negotiated through Maintenance Enforcement to the satisfaction of both the payor and the recipient. Flagrant cases of failure to pay support can result in prison terms for up to 90 days.

Alberta's courts have held that child support payments are the entitlement of children, not the parents. This means that support levels and the obligation to pay will be determined to provide for the needs of the children as opposed to the convenience of the spouses or ex-spouses, even where they both agree. The intention of court-ordered support is to ensure a child is able to maintain a standard of living without unusual reduction resulting from separation or divorce. Both parents are obligated to support the children according to their means to ensure an appropriate standard of living.

Current methods of enforcement have resulted in greater compliance with support obligations. They have not, however, solved all of the problems. Many support payors do not make their payments even though they can afford to do so. The reasons payors fail to make their payments range from poor money management, to new financial obligations, to blatant refusal to make payments to an ex-spouse.

There are enforcement alternatives that do not currently exist. Many of these alternatives would require existing legislation, federal and provincial, to be amended. These alternatives would also require our society to commit to the view that financial care of children is the primary obligation of all parents, married or divorced.

Enforcement -- The Future

To ensure support is paid, we could legislate that, where land other than matrimonial property is held by a payor spouse, a forced sale or mortgage could be held to meet the support obligation. Where a payor has been in default of court-ordered support payments, sale proceeds could be held as security for ongoing payments. We already acknowledge, through Alberta case law and in the Divorce Act, that a parent's assets can be used to ensure support obligations are met. Mandatory sale/mortgage provisions would put this attitude into action.

It is not unusual for divorcing parents to have significant financial problems. Where the payor spouse is faced with bankruptcy, it could be set up so the payor's child support obligations are treated as a supreme priority for any distribution the trustee in bankruptcy might make from the bankrupt's estate. Child support obligations are not eliminated by bankruptcy and such a priority would underscore the importance placed on maximizing the financial support of children.

Exemptions to which a bankrupt is entitled, such as the portion of proceeds of sale from his or her primary residence, could be made available by way of attachment for child support obligations. In Alberta, this would require an amendment to the Civil Enforcement Act.

There are instances where payments to a payor are due from various government agencies. Prior to the release of funds from Alberta Lotteries and the Motor Vehicle Accident Claims Fund, for example, clearance certificates should be obtained showing the person is not a child support payor in default. If the recipient is in default, any arrears would be paid out first. This approach would extend to payments made from the Worker's Compensation Board, Alberta Health Care, and payments under the Insurance Act which place restrictions on garnishees.

Many debtors have not filed income tax returns for years. Where a payor is in default, this failure to file tax returns should be regarded as a presumption of an ability to pay. If the payor holds interests in a corporation, his or her shares could be sold or assets could be seized. These approaches would require legislative amendments.

If a defaulting payor is the sole shareholder of a corporation or sole proprietorship, a percentage of the corporate or business income could be attributed to the shareholder/payor in default. Again, enforcement could include share sales, seizure of assets, and a first charge on income received.

To ensure the information relied upon to determine which enforcement procedures are most effective is complete, provisions would have to be made to provide our courts with jurisdiction to compel third parties, such as banks, to provide documentation to verify the financial situation of the defaulting payor.

One of the most interesting and just ways of ensuring child support obligations are met is to refuse a marriage licence if the applicant is in default. Given that first families come first when determining various obligations, this would help the payor avoid compounding the problems he faces.

The proposals set out above are controversial and require Legislatures and Parliament to make clear that the children of divorce are a priority and their standards of living will not be jeopardized due to marital conflict and poor relations between their parents. Promoting these alternatives would be a true test of our society's value of our children and their welfare.
COPYRIGHT 1996 Legal Resource Centre of Alberta Ltd.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1996 Gale, Cengage Learning. All rights reserved.

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Author:Gregory B. Schmidt
Date:Feb 1, 1996
Previous Article:Turning a bad divorce into a good one: lawyer as helper.
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