When parents, for whatever reason, decide to live apart, the financial suffering of their children should be kept to a minimum. Both parents should be doing what is best for their children. Surely no one would disagree with the principle that both parents have a financial obligation to support their children. However, the amount of child support that the non-custodial parent pays to the custodial parent is often the subject of a battle in court.
Most jurisdictions now have some form of child support guidelines. But that has not stopped the battles between parents – both on original applications for child support and on variations of the amount of child support !
Whether the battle between Mom and Dad continues until a Judge sets the amount after a court hearing, or whether the parents settle on the doorsteps of the court house, the end of the battle is often preceded by arguing and blaming. Sometimes one parent threatens to apply for custody as a bargaining tool in the negotiations over the amount of child support to be paid.
In Ontario and Canada, there are what we call “Table Amounts” for child support. These amounts depend solely on the payor’s income and the number of children to be supported. For example, based on the latest Tables, if there are three children and the payor has an annual income of $ 20,000.00, the Table Amount of child support to be paid in Ontario is $ 390.00 monthly tax-free. On the other hand, if the payor’s annual income is $ 40,000.00, the Table Amount increases to $ 748.00.
But in Ontario and Canada, there are additional amounts that may need to be paid. If the custodial parent incurs expenses for child care, medical or dental insurance, certain health-related expenses, or expenses for post-secondary education, the non-custodial parent may have to pay his or her proportionate share of these expenses, in addition to the Table Amount. The non-custodial parent may also have to pay his or her proportionate share of extraordinary expenses incurred by or on behalf of the children for extracurricular activities and certain educational programs.
The Government Child Support Guidelines have not eliminated parents going to court over child support issues. For example, there has been much case law generated over what is an appropriate extracurricular activity and what is an “extraordinary” expense for it. Litigation has also resulted in the areas of “shared custody” (ie. where a child spends at least 40% of her of his time with each parent), “undue hardship,” and “children over the age of majority.” Some parents lose sight of what is best for their children.
The Child Support Guidelines were supposed to facilitate settlement and reduce everyone’s stress level. But even where there is a settlement, the parties may be unhappy with each other and with their lawyers for any one of a number of reasons. The life of the family law lawyer has not been made easier by the implementation of the Guidelines !
However, parents do have a choice about how to resolve disputes over child support. They can try to negotiate an agreement, either themselves or with their lawyers’ help. They can go to court and let a judge decide. Or they can work with a mediator.
For those parents who can maintain good communications with each other after separation and put your children first, let me commend you ! You are in the minority. Often after separation parents are poor communicators and highly distrustful of each other.
Court proceedings are usually expensive; they are highly adversarial; there is usually a winner and a loser; and going to court is stressful !
Mediation is a process in which a mediator, who is a trained neutral third person, helps the parents negotiate a mutually acceptable agreement regarding child support (as well as any other issues the parents want resolved.) The parents, not the mediator, make the decision. No result is imposed on a disagreeing parent.
The mediator helps to make both parents feel safe and comfortable in each other’s presence. A trained family mediator will focus on communications and improving understanding. The more that parents understand each other, the more likely it is that they can begin the process of talking constructively about the issues in dispute.
During the mediation sessions, the parents can exchange views and information on what each parent feels is appropriate for the children. Parents can learn how to assess their financial situation to provide for their children’s needs. Mediation focuses on plans for the future of the children, instead of on the parents’ conflicts and grievances. In mediation, the potential increases for solutions that may go beyond remedies which can be ordered by the court. A mutually acceptable solution lets both parents be winners and respect each other.
Because the voluntary settlement that the parents reach is designed by the parents themselves, it is more likely to be carried out without the need for external enforcement or further court proceedings. This is an extremely important benefit, considering the amount of child support arrears that are outstanding in most jurisdictions, including Ontario. It is also a tremendous savings for taxpayers in the areas of court resources and enforcement agencies.
Mediation usually resolves disputes faster and cheaper than going to court. The mediation process makes for happier clients and reduces the stress level for lawyers.
Perhaps the most important benefit of mediation in child support (and family law) cases is the preservation of the relationship that must exist between parents after separation. Once you are parents, you are parents forever ! Co-operation between parents will go a long way to reduce the stress and anxiety in the lives of their children. As parents cope better, their children do so as well !
https://youtu.be/4PcXmhnfFWg Keynote Discussion with Prof. Richard Susskind, IT Adviser to the Lord Chief Justice of England and Wales (https://www.susskind.com/), presented as part of Cyberweek 2020 http://odr.info/cyberweek2020By Richard Susskind, Colin Rule