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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, [email protected]
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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.

2 See Dewar, John, “The Normal Chaos of Family Law,” Modern Law Review 61 (1998), 467–85CrossRefGoogle Scholar; Dewar, John, “Family Law and Its Discontents,” International Journal of Law, Policy and the Family 4 (2000), 59–85CrossRefGoogle Scholar; Reece, Helen, Divorcing Responsibility (Portland, OR: Hart Publishing, 2003)Google Scholar; Sclater, Shelley Day, “Narratives of Divorce,” Journal of Social Welfare and Family Law 19 (1997), 423–41CrossRefGoogle Scholar.

3 Reece, , Divorcing Responsibility, 156Google Scholar.

4 Ibid.

5 Sclater, , “Narratives of DivorceCrossRefGoogle Scholar.”

6 Reece, , Divorcing ResponsibilityGoogle Scholar.

7 Ibid.

8 Department of Justice, Backgrounder: New Child Support Strategy (Ottawa: Department of Justice, 1996)Google Scholar.

9 Department of Justice, Children Come First: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines, vol. 1 (Ottawa: Department of Justice, 2002)Google Scholar.

10 Dewar, , “The Normal Chaos of Family Law,” 481Google Scholar.

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

14 Mandell, Deena, “Deadbeat Dads”: Subjectivity and Social Construction (Toronto: University of Toronto Press, 2002)CrossRefGoogle Scholar.

15 Federal Child Support Guidelines, S.O.R./97-175 [Guidelines].

16 R.S.C. 1985 (2d Supp.), c. 3.

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.

18 Epstein, Philip, “Child Support Guidelines Legislation: An Overview,” in Child Support Guidelines: Reference Manual, ed. Child Support Team (Ottawa: Department of Justice, 1997)Google Scholar.

19 McLeod, James, “The Proposed Child Support Guideline Package: The Scope of Judicial Discretion,” in Federal Child Support Guidelines Reference Manual, ed. Child Support Team (Ottawa: Department of Justice Canada, 1997)Google Scholar.

20 Wallbank, Julie, “An Unlikely Match? Foucault and the Lone Mother,” Law and Critique 9 (1998), 78CrossRefGoogle Scholar.

21 Divorce Act, s. 11(1)(b).

22 McLeod, , “The Proposed Child Support Guideline Package.Google Scholar”

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.

25 Hunt, Alan, “Law, State and Class Struggle,” Marxism Today 20 (1976), 178–9Google Scholar.

26 The Federal Child Support Guidelines: Step-by-Step (Ottawa: Minister of Justice and Attorney General of Canada, 2006)Google Scholar, http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/pub/guide/index.html.

27 Ibid., 5.

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

29 Comack, Elizabeth, “Theoretical Excursions,” in Locating Law: Race/Class/Gender Connections, ed. Comack, Elizabeth, 19–68 (Halifax: Fernwood Publications, 1999)Google Scholar.

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.

33 Special Joint Committee on Child Custody and Access, For the Sake of the Children (Ottawa: Government of Canada, 1998)Google Scholar; Stewart, Ron, The Early Identification and Streaming of Cases of High-Conflict Separation and Divorce: A Review [2001-FCY-7E] (Ottawa: Department of Justice Canada, 2001)Google Scholar.

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.

38 Shields, Richard, Ryan, Judith, and Smith, Victoria, Collaborative Family Law: Another Way to Resolve Family Disputes (Scarborough, ON: Carswell, 2003), xiiiGoogle Scholar.

39 Ibid., xiii.

40 CFL is also used in divorce or separation negotiations when there are no children.

41 Paestsch, Joanne, Bertrand, Lorne, Bala, Nicholas, and Hornick, Joseph, The Child-Centred Family Justice Strategy: Baseline Information from Family Law Practitioners (Ottawa: Minister of Justice and Attorney General of Canada, 2005)Google Scholar.

42 While stopping short of a presumption of joint custody, the Special Joint Committee on Child Custody and Access did recommend that the principle of “maximum contact” be included in the list of criteria used in determining custodial and access arrangements. Section 16(10) of the Divorce Act is known as the “maximum contact” or “friendly parent” rule: “a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.” In an attempt to diffuse conflict in divorce, the committee did recommend that the term “shared parenting” replace “custody” and “access” in the legislation, citing its hope that the new language would “foster,” but not necessarily mandate, “co-operative, child focused post-separation parenting.” Special Joint Committee on Child Custody and Access, For the Sake of the Children, ch. 2, C. 1.

43 Boyd, Susan, Child Custody, Law and Women's Work (Toronto: Oxford University Press, 2003)Google Scholar.

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.

45 Smart, Carol and Neale, Bren, Family Fragments? (Cambridge: Polity Press, 1999)Google Scholar.

46 Ibid., 178 (emphasis added).

47 Pickett, Elizabeth, “Familial Ideology, Family Law and Mediation: Law Casts More than a ‘Shadow,’” Journal of Human Justice 3 (1991), 27–45CrossRefGoogle Scholar. See also Bourque, Dawn, “‘Reconstructing’ the Patriarchal Nuclear Family: Recent Developments in Child Custody and Access in Canada,” Canadian Journal of Law and Society 10 (1995), 1–24CrossRefGoogle Scholar.

48 Cossman, Brenda and Fudge, Judy, “Introduction: Privatization, Law and the Challenge to Feminism,” in Privatization, Law and the Challenge to Feminism, ed. Cossman, Brenda and Fudge, Judy, 3–40 (Toronto: University of Toronto Press, 2002)CrossRefGoogle Scholar.

49 See Brodie, Janine, Politics on the Boundaries: Restructuring and the Canadian Women's Movement (Toronto: Robarts Centre for Canadian Studies, 1995)Google Scholar; Cossman and Fudge, “Introduction.”

50 Brodie, , Politics on the BoundariesGoogle Scholar.

51 Cossman, and Fudge, , “Introduction,” 27Google Scholar.

52 Boyd, Susan, “Challenging the Public/Private Divide: An Overview,” in Challenging the Public/Private Divide: Feminism, Law and Public Policy, ed. Boyd, Susan, 3–33 (Toronto: University of Toronto Press, 1997)CrossRefGoogle Scholar; Gilmour, Joan and Martin, Dianne, Women's Poverty, Women's Health: The Role of Access to Justice (Toronto: National Network on Environments and Women's Health, 2001)Google Scholar; Wiegers, Wanda, “Child-Centred Advocacy and the Invisibility of Women in Poverty Discourse and Social Policy,” in Reaction and Resistance: Feminism, Law and Social Change, ed. Chunn, Dorothy, Boyd, Susan B., and Lessard, Hester, 229–61 (Vancouver: UBC Press, 2007)Google Scholar.

53 Kline, Marlee, “Blue Meanies in Alberta: Tory Tactics and the Privatization of Child Welfare,” in Challenging the Public/Private Divide: Feminism, Law and Public Policy, ed. Boyd, Susan, 330–58 (Toronto: University of Toronto Press 1997), 336Google Scholar.

54 Brodie, , Politics on the BoundariesGoogle Scholar; Cossman, and Fudge, , “IntroductionGoogle Scholar”; Evans, Patricia and Wekerle, Gerda, “The Shifting Terrain of Women's Welfare: Theory, Discourse and Activism,” in Women and the Canadian Welfare State: Challenges and Change, ed. Evans, Patricia and Wekerle, Gerda, 3–27 (Toronto: University of Toronto Press, 1997)CrossRefGoogle Scholar.

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.

56 Fudge, Judy, “Fragmentation and Feminization: The Challenge of Equity for Labour-Relations Policy,” in Women and Canadian Public Policy, ed. Brodie, Janine (Toronto: Harcourt Brace, 1996), 111Google Scholar.

57 Campaign 2000, One Million Too Many: Implementing Solutions to Child Poverty in Canada. 2004 Report Card on Child Poverty (2004), http://www.campaign2000.ca/reportCards/national/2004EngNationalReportCard.pdf

58 Department of Justice, Children Come First: A Report to Parliament Reviewing the Provisions and Operation of the Federal Child Support Guidelines, vol. 1 (Ottawa: Department of Justice, 2002), ivGoogle Scholar.

59 Campaign 2000, One Million Too Many.

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.

63 The public was told that Ontario taxpayers have paid $211 million in social assistance under the FRO to help those whose spouses have defaulted. Ibid.

64 Evidence Proceedings of the Standing Committee on Social Affairs, Science and Technology, December 12, 1996 (Ottawa: Government of Canada, 1996)Google Scholar.

65 It is interesting to note that the Ontario Ministry of Community and Social Services titled its online database of child-support defaulters, launched in 2007, “Good Parents Pay.” See Ontario Ministry of Community and Social Services, http://www.mcss.gov.on.ca/mcss/english/pillars/familyResponsibility/.

66 McLeod, , “The Proposed Child Support Guideline Package.Google Scholar”

67 When the Guidelines were implemented, the determination of child support changed from a “needs-based” approach to a “means-based” approach: “The Guidelines have created a new concept of ‘reasonableness’ … in that the focus has shifted from actual expenses to an examination of how much the paying parent's income will permit the child's standard of living to resemble that of the paying parent … the reasonableness of need is therefore now a function of what the paying parent can afford, not what would have been considered reasonable under the Paras formula.” Francis v. Baker (1999), 28 R.F.L. (4th) 437 (Ont. Gen. Div.). See also Paras v. Paras (1971), 1 O.R. 130 (Ont. C.A.); Richardson v. Richardson (1987), 22 O.A.C. 1 (S.C.C.).

68 This term is borrowed from Edelman, M., The Construction and Uses of Social Problems: Constructing the Social Spectacle (Chicago: University of Chicago Press, 1988)Google Scholar. Edelman describes how new laws and other public actions—or “gestures”—are taken in order to foster the belief that a problem has been solved, or that progress is being made towards a solution, even though this result is highly unlikely. He argues that attempts to solve problems may become counterproductive if they create the “illusion of solving the problem, thereby permitting others to not address it, and they may produce subjectivities and conditions which support the exercise and the tolerance of the problem on all sides.” Ibid., 26–7.

69 Flax, Jane, Thinking Fragments: Psychoanalysis, Feminism, and Postmodernism in the Contemporary West (Berkeley: University of California Press, 1990)Google Scholar.

70 In an examination of persons incarcerated for child-support debts in Alberta during 2005–2006, Paul Millar found that specific social categories of persons were overrepresented in the figures: specifically, the unemployed, those with high school education or less, Aboriginals, and blacks. Millar interprets these findings as being “especially disturbing in a program that is aimed at reducing poverty, since the people being punished are among society's most vulnerable.” Millar, Paul, “Punishing Our Way Out of Poverty: The Prosecution of Child-Support Debt in Alberta, Canada,” Canadian Journal of Law and Society 25 (2010): 1–65CrossRefGoogle Scholar.

71 Brodie, Janine, “Shifting the Boundaries: Gender and the Politics of Restructuring,” in The Strategic Silence: Gender and Economic Policy, ed. Bakker, Isabella (London: Zed Books, 1994), 57Google Scholar.

72 Bakker, Isabella, “Who Built the Pyramids? Engendering the New International Economic and Financial Architecture” (Paper presented at the conference Feminist Political Economy and the Law: Revitalizing the Debate, Feminist Legal Institute, Osgoode Hall Law School, March 24, 2001)Google Scholar; Boyd, , “Challenging the Public/Private Divide.CrossRefGoogle Scholar”

73 Eichler, Margrit, Families in Canada Today, 2nd ed. (Toronto: Gage, 1988)Google Scholar.

74 Pulkingham, Jane, “Private Troubles, Private Solutions: Poverty among Divorced Women and the Politics of Support Enforcement and Child Custody Determination,” Canadian Journal of Law and Society 9 (1994), 83CrossRefGoogle Scholar.

75 Zweibel, Ellen, “Child Support Policy and Child Support Guidelines: Broadening the Agenda,” Canadian Journal of Women and the Law 6 (1993), 371–401Google Scholar.

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.