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Ira Mark Ellman - One of the best experts on this subject based on the ideXlab platform.
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child Support and the custodial mother s move or remarriage
2014Co-Authors: Ira Mark Ellman, Sanford L BraverAbstract:When a custodial mother marries a new partner, the income of the custodial household rises. The stepfather may earn much more than the father, or much less. He may or may not assume the social role of father, but his day to day contact and interaction with the child will often be more than the father’s. If the mother and stepfather move together with the child to a location distant from the father, he may be more likely to replace him in the child’s life. Whatever a stepfather’s legal Obligations of Support, economic realities ensure that his income will have an impact on the child’s financial well-being, and possibly a major impact. Yet the usual understanding is the law excludes the income of the mother’s new husband from consideration in setting the father’s child Support Obligation. Nor does it consider the impact of the remarriage, or any move, on the ability of the father to maintain a paternal relationship with the child. While these categorical exclusions are found in nearly every state’s formal rules, there are nonetheless examples of departures from them, some longstanding, that exist in particular circumstances, when the economic and social realities have overridden them. The increasing tension between the traditional rules and modern economic and social realities seems likely to present occasions to consider the rules’ reform. This paper asks whether the traditional rules are in fact consistent with the beliefs of citizens as to what the law should provide. It does so by presenting a random sample of several hundred citizens with a set of cases in which they are asked to decide the appropriate level of child Support. We then infer their preferred rules by considering how their answers vary with changes in the custodial mother’s circumstances. Results in the cases are supplemented with Likert questions probing citizen views on statements of principle. The results show considerable Support for taking remarriage into account in setting child Support Obligations, especially when the stepfather’s income is higher. While the mother’s relocation to a location distant from the father does not alone affect the Support judgments of most respondents, the same move has a significant impact on respondents’ judgments when it is combined with either remarriage or an increase in the mother’s income. These effects are seen in both male and female respondents, although females are less responsive than males to remarriage without relocation. Our respondents appear to take both social and financial factors into account in these judgments, and overall prefer rules that are more nuanced than the categorical rules found in traditional child Support law.
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Should Visitation Denial Affect the Obligation to Pay Support
SSRN Electronic Journal, 2002Co-Authors: Ira Mark EllmanAbstract:When parents do not live together, the relationship between their children and the parent with whom they do not primarily live is often difficult to establish or maintain. In some cases those difficulties may be exacerbated by the custodial parent's resistence to regular contact and visitation with the other parent, expressed through conduct that violates the judicial decree setting forth the custody terms. In other cases substantial impairment in the noncustodial parent's relationship with the child may unavoidably result from custodial-parent conduct that is both lawful and reasonable, such as justified relocation with a young child to a distant location to which the other parent cannot follow. At one time the Support obligor might have stopped making payments in either situation, effectively undermining the formal legal rule requiring him to pay, but improvements in the enforcement of child Support Obligations increasingly exclude that form of self-help. Where impairment in the parent-child relationship arises from noncompliance with the visitation provisions of the custody decree, a possible response is its improved enforcement, but inherent difficulties in the available enforcement tools suggest that this response will always leave some cases unresolved. Nor will enforcement address the question in the relocation context. Renewed attention is therefore appropriate to the question of whether formal relief from the child Support Obligation should be allowed in such cases. The legal doctrine is confused. On one hand the right of access and the Obligation of Support are both regarded as fundamental attributes of parental status, and typically arise and end together in the context of legal rules establishing or terminating parental status. On the other hand, in many states the law makes clear that one parent's Obligation to pay Support is not dependent upon the other parent's cooperation in allowing access to the child. The rule that the Obligation to pay Support and the Obligation to permit access are not interdependent is also often surprising to the parents themselves, because it appears to violate the social norm of reciprocity. It survives in the law largely for two reasons, one procedural and one substantive. As a procedural matter parties are supposed to seek modification of an outstanding judicial decree they believe no longer appropriate, rather than ignore it and raise their substantive concerns only later as a defense to an action against them for noncompliance. As a substantive matter, courts assume that the continued payment of child Support Obligations are essential to the child's welfare, and they are therefore disinclined to reduce or end them as a remedy even if convinced of the custodial parent's improper behavior. This article concludes that while both these procedural and substantive reasons are weighty, they do not, or need not, apply to the full range of cases in which the law denies reductions in the Support Obligation sought on visitation-denial grounds. The article also considers other reasons for enforcing Support, and finds these additional reasons are also often inapplicable to the visitation-denial cases considered here. Carefully distinguishing among cases according to both the severity of the visitation denial, as well as the procedural posture, the article suggests changes in the legal rules that would in many cases satisfy the procedural objection. It also suggests two categories of cases in which the substantive objection will often be of limited relevance: cases involving the enforcement of arrearages where the children are near or beyond the age of majority, and cases in which the Support obligee has remarried. It therefore concludes that the increasingly effective enforcement of the Support Obligation ought to be accompanied by recognition of a visitation-denial ground for reducing, suspending, or terminating it, in select cases. This working paper is a draft of a chapter that will appear in The Law and Economics of Child Support Payments, edited by William Comanor, and expected to appear during 2003.
Lessard Michaël - One of the best experts on this subject based on the ideXlab platform.
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Le calcul des aliments du parent de fait : de l’approche synchronique à l’approche étapiste
'Consortium Erudit', 2019Co-Authors: Lessard MichaëlAbstract:Le présent article porte sur le calcul des aliments versés par les parents de fait en droit québécois. Il se divise en quatre parties. Dans la première, l’auteur explique dans quelle mesure les parents de fait québécois peuvent être tenus de fournir des aliments en vertu de la doctrine in loco parentis qui s’applique aux couples mariés. Dans la deuxième partie, il détaille la méthode prévue en droit privé fédéral pour calculer les aliments payables par une personne tenant lieu de parent. Dans la troisième, l’auteur émet l’hypothèse selon laquelle le droit civil québécois préconise une approche synchronique de calcul des aliments payables par les parents de fait et les parents civils non gardiens. Enfin, dans la quatrième partie, il recommande l’adoption d’une approche étapiste pour le calcul des pensions alimentaires.Selon l’approche étapiste, l’Obligation alimentaire du parent de fait est subsidiaire à celle du parent civil. La pension alimentaire de ce dernier est d’abord déterminée sans prendre en considération le parent de fait. Celle du parent de fait est ensuite évaluée suivant les règles habituelles mais, pour obtenir sa valeur réelle, on lui soustrait le montant versé par le parent civil : la pension du parent de fait devient complémentaire de la pension du parent civil. Le parent civil est donc soumis à une Obligation primaire et le parent de fait, à une Obligation secondaire. Cette approche comporte quatre avantages : 1) elle favorise la stabilité de la situation financière de l’enfant ; 2) elle témoigne du rôle exercé par le parent de fait au cours de la vie commune ; 3) elle permet d’éviter des injustices envers le parent civil gardien ; et 4) elle favorise la préservation de l’institution de la filiation.This article aims to explain the shortcomings of Québec law regarding the calculation of child Support when paid by a de facto parent, and to present an alternative. Part I discusses the extent to which Québec de facto parents are required to pay child Support under the doctrine of in loco parentis. Part II outlines how child Support is calculated under federal private law when payable by a person standing in the place of a parent. In Part III, I put forward the hypothesis that Québec law imposes a synchronic approach to the calculation of child Support when a de facto parent is involved. Last, in Part IV, I recommend the adoption of a layered approach to the calculation of child Support.Under this layered approach, the Support Obligation of a de facto parent is subsidiary to the Obligation of the civil parent. First, the amount of child Support paid by the civil parent is determined without considering the de facto parent. Then, the Support Obligation of the de facto parent is assessed using the usual rules. To obtain the real value of the de facto parent’s Support Obligation, the civil parent’s Support must be subtracted, making the de facto parent’s contribution complementary to the contribution of the civil parent. The civil parent has a primary Obligation, while the de facto parent has a secondary Obligation. There are four advantages to this approach : (1) it helps ensure financial stability for the child, (2) it reflects the role played by the de facto parent during cohabitation, (3) it helps avoid unfairness towards the custodial civil parent, and (4) it helps preserve the institution of filiation.Este artículo se divide en cuatro partes, y tiene como objetivo exponer el problema que existe para calcular la pensión de alimentos que deben sufragar los padres de hecho en el derecho quebequense. En este artículo, se presentan algunas pistas de solución. En la primera parte explico en qué medida los padres de hecho quebequenses pueden ser responsables de proporcionar alimentos, en virtud de la doctrina in loco parentis que se aplica a las parejas casadas. En la segunda parte, explico el método que se ha previsto en el derecho privado federal para calcular el monto de la pensión de alimentos que debe pagar una persona que haga las veces de padre. En la tercera parte, he formulado una hipótesis, según la cual en el derecho civil quebequense se recomienda adoptar un enfoque sincrónico de los cálculos de la pensión de alimentos, que deben sufragarse por parte de los padres de hecho, y por los progenitores civiles que no poseen la custodia. Finalmente, en la cuarta parte, recomiendo la adopción de un enfoque por etapas en el cálculo de pensiones alimenticias.Según el enfoque por etapas, la obligación alimenticia del padre de hecho es subsidiaria a aquella del progenitor civil. La pensión alimenticia del padre civil está determinada sin considerar la del padre de hecho. La pensión del padre de hecho se evalúa siguiendo las reglas habituales, pero para obtener su valor real se le sustrae el monto que ha sido sufragado por el progenitor civil : la pensión del padre de hecho es complementaria a la pensión del progenitor civil. El progenitor civil está sometido a una obligación primaria, y el padre de hecho a una obligación secundaria. Este enfoque tiene cuatro ventajas : 1. Se favorece la estabilidad financiera del menor. 2. Da fe del rol que ejerce el padre de hecho durante la vida común. 3. Se evitan injusticias con respecto al progenitor civil que tiene la guarda. 4. Se favorece la preservación de la institución de la filiación
Lucinda Ferguson - One of the best experts on this subject based on the ideXlab platform.
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Retroactivity, Social Obligation, and Child Support
2006Co-Authors: Lucinda FergusonAbstract:The Supreme Court of Canada recently heard argument on the circumstances in which retroactive child Support orders are justified. The claimants are four Alberta fathers who have been held subject to retroactive Support Obligations that extend to before the custodial parent's application for variation of the existing order. The fathers argue that these orders are unfair and not justified by the Federal Child Support Guidelines. Supporting their argument is the position of courts in British Columbia, Ontario and Saskatchewan; these courts have adopted a more restrictive interpretation of the circumstances that justify retroactive orders than has the Alberta Court of Appeal.This brief comment addresses the critical theory issues before the Court. First, is it the Obligation or merely the extent of the Obligation that is retroactive? Is the idea of retroactivity in the context of the child Support Obligation a misnomer? Second, what is the nature of the child Support Obligation? Third, and consequently, in what circumstances is a retroactive order justified?
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The Parental Support Obligation
2004Co-Authors: Lucinda FergusonAbstract:Every jurisdiction in Canada has provided by statute for a parent to claim Support from their adult child; the Obligation imposed upon an adult child exists entirely in civil law since there are no corresponding criminal law provisions. The Support Obligation also has no history at common law. The filial Support Obligation originated in the Elizabethan Poor Laws as the state’s response to the difficulty of providing for the older members of the population. In Burgess, Judge Fisher stated he believed the Ontario provisions were added “to allow the State to make well-off children pay for parents in nursing homes rather than the State paying for them.” Yet, as Judge Fisher remarks, “the effect of [statutory filial Support Obligations] is far more sweeping.” Filial Support Obligations have the potential to enable any parent in need to directly claim Support from their child, stepchild, grandchild, and, at least indirectly, from their child’s spouse. To date, filial Support legislation has been little used. Since 1982 there have been approximately twenty-three cases across Canada in which the issue of parents’ Support has arisen, including cases that indirectly addressed this issue. The majority of these cases have arisen in Ontario (ten cases) and British Columbia (seven cases). As the population ages, and the average lifespan increases, this little-known area of law may become fertile ground for provincial governments seeking to recover the cost of caring for other people’s older relatives. Provincial and territorial statutes are similar in their fundamental approach to the issue of parents’ Support. In broad terms, an adult child is held obliged to Support their parent when three requirements are satisfied: first, the parent has demonstrated the need for Support; second, the parent cared for or Supported the child against whom a claim is now being brought; third, the court is satisfied that the adult child is capable of providing Support. The rest of this section will explore the circumstances in which the issue of filial Support arises in a legal action, and the differences between various provinces’ and territories’ approaches, which relate to the necessary elements of the claim for Support: who qualifies to make a claim, and against whom a claim can be made.
Sanford L Braver - One of the best experts on this subject based on the ideXlab platform.
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child Support and the custodial mother s move or remarriage
2014Co-Authors: Ira Mark Ellman, Sanford L BraverAbstract:When a custodial mother marries a new partner, the income of the custodial household rises. The stepfather may earn much more than the father, or much less. He may or may not assume the social role of father, but his day to day contact and interaction with the child will often be more than the father’s. If the mother and stepfather move together with the child to a location distant from the father, he may be more likely to replace him in the child’s life. Whatever a stepfather’s legal Obligations of Support, economic realities ensure that his income will have an impact on the child’s financial well-being, and possibly a major impact. Yet the usual understanding is the law excludes the income of the mother’s new husband from consideration in setting the father’s child Support Obligation. Nor does it consider the impact of the remarriage, or any move, on the ability of the father to maintain a paternal relationship with the child. While these categorical exclusions are found in nearly every state’s formal rules, there are nonetheless examples of departures from them, some longstanding, that exist in particular circumstances, when the economic and social realities have overridden them. The increasing tension between the traditional rules and modern economic and social realities seems likely to present occasions to consider the rules’ reform. This paper asks whether the traditional rules are in fact consistent with the beliefs of citizens as to what the law should provide. It does so by presenting a random sample of several hundred citizens with a set of cases in which they are asked to decide the appropriate level of child Support. We then infer their preferred rules by considering how their answers vary with changes in the custodial mother’s circumstances. Results in the cases are supplemented with Likert questions probing citizen views on statements of principle. The results show considerable Support for taking remarriage into account in setting child Support Obligations, especially when the stepfather’s income is higher. While the mother’s relocation to a location distant from the father does not alone affect the Support judgments of most respondents, the same move has a significant impact on respondents’ judgments when it is combined with either remarriage or an increase in the mother’s income. These effects are seen in both male and female respondents, although females are less responsive than males to remarriage without relocation. Our respondents appear to take both social and financial factors into account in these judgments, and overall prefer rules that are more nuanced than the categorical rules found in traditional child Support law.
Kimberly A. Folse - One of the best experts on this subject based on the ideXlab platform.
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The child Support Obligation, non-custodial parental income and compliance : Data collection strategies
Journal of Social Service Research, 1999Co-Authors: Kimberly A. FolseAbstract:Abstract Enforcing child Support Obligations has always been a key component to welfare policy. With an increased emphasis on personal responsibility, child Support enforcement will take a more central role as states plan to reduce welfare spending by enforcing child Support Obligations. The purpose of this paper is to illustrate how survey research, in particular mail surveys, can be used as an evaluation strategy to provide information about a given caseload and their ability to pay. Based on a state-wide survey conducted in Texas the author proposes that income information can be coaxed from parents and that researchers can use this information to measure discrepancies of income, order size, and payment. Equitability of AFDC and non-AFDC caseloads, enforcement and compliance issues are discussed.