Silveira v McKay, 2018 SKQB 318
In 2008, the Canadian Bar Association passed the Child Support Recalculation Services Resolution, which encouraged all levels of government to implement child support recalculation services.
Administrative recalculation of child support is an innovative, efficient and responsive tool to address changes in payor circumstances in child support matters. On March 15, 2018, The Family Maintenance Regulations, 1998, were amended to establish the Saskatchewan Child Support Recalculation Service (the “CSRS”). Saskatchewan was the ninth province to implement such a program.
The CSRS is a pilot project to ensure that child support orders can be adjusted in a cost-effective manner. The goal of the program is to update child support amounts to reflect changes in income, without requiring the time and expense of pursuing a variation of support through the courts. Instead, the CSRS updates the orders administratively. There is no cost to use to the CSRS.
Applications to the CSRS can be made online: Click Here
Certain personal information, such as names, birth dates and income information, is required.
Upon receiving an application, the CSRS will determine if the order is eligible for recalculation. There are circumstances where the CSRS may decline to recalculate the amount, such as if there is a forthcoming court application regarding child support, or if in the opinion of the CSRS, recalculation would be too complex or lead to unjust results.
There are also a number of specific circumstances where support orders are not eligible for recalculation using this administrative process. By way of example, this includes support for a child over the age of 18, where the order relates to income in excess of $150,000.00 or where there is a shared custody arrangement.
If the CSRS deems an application eligible for recalculation, then the CSRS will request income disclosure from the other party. The responding party has 30 days to supply his or her date of birth, and if they are the payor, his or her income information and the name and contact information of their employer.
Silveira v McKay is a simple breakdown of how the CSRS can deem income should a party refuse to provide the requested income disclosure. It is the first case in Saskatchewan in regards to the CSRS and its powers. In Silveira v McKay, the recipient of child support applied to the CSRS for recalculation. The CSRS requested income disclosure from the payor, asking for his income tax returns and any assessments, all sources of income, his year-to-date earnings, any income-replacement benefits, pension income, or social assistance payments, and the name of his employer along with contact information. The payor failed to supply the requested information. The CSRS informed the payor that by failing to supply the requested income information, it would then recalculate the amount of support owed by deeming a percentage increase to his income in accordance with the Regulations.
The Family Maintenance Regulations outlines how the CSRS may deem income. The CSRS deems income by looking at the current child support amount, and the income information used to calculate that amount. How recent the income information is determines how much additional income will be deemed. If the income information for the current support order is 2 years or newer, then the court will deem a 10% increase. If the income information is between 2 and 5 years old, a 15% increase will result. Between 5 and 10 years is a 20% increase, and if the income information is dated 10 years or more, a 30% increase.
The Court in Silveira v McKay noted that the CSRS had acted within its power and the scope of the Regulations in making the calculation they did and deeming a 15% increase in the payor’s income.
The Court also held that an application to the CSRS does not waive a party’s right to seek variation of child support order, either retrospectively or prospectively. The Court noted that the effect of a recalculation decision is that the recalculated amount is incorporated into the existing order. A variation of child support is a new review of support requiring detailed financial information, and resulting in a new court order.
The implementation of the CSRS is designed to assist in reducing the backlog in the family law division of the court. Adjusting child support obligations utilizing the administrative process of the CSRS, when available, will be faster and more cost-effective than the Courts.