1. The need to modify Child Support decisions : An International perspective Hannah Roots Managing Director Family Maintenance Enforcement Program British Columbia, Canada

2. International Modifications Background Research Current modification model The child’s perspective Challenges and issues Options and best practices Next Steps

3. Why discuss modification? Family circumstances change; international cases are no different Recognition/Enforcement cases are majority of international cases Move to another country is significant change New circumstances are not always positive Payments cannot be made and arrears accrue Reality - Modification is much more challenging on international cases

4. Modification and growth in arrears Research shows that when the amount of child support ordered exceeds 19 – 20 percent of the debtor’s monthly income, the probability of the debtor complying with the order drops significantly.* Once the case falls into arrears, and payments have to be made on the arrears as well as the regular amount, the total amount payable by the debtor will often exceed this threshold. Key Research Finding – debtor doesn’t just pay less, the payments cease completely * Takayesu, M.I., & Eldred, S.C. ( 2011 ). “How Do Child Support Orders Affect Payments and Compliance.” Orange County Department of Child Support Services. Retrieved from http://www.css.ocgov.com/about/researchstudies

5. Arrears are a barrier to payment Other research* has shown that the existence of child support debt (arrears) can have serious consequences: – Exacerbates conflict between the parents –Deters debtors from taking work as they will be subject to wage garnishment –Enforcement remedies such as licence suspension, liens against vehicles and incarceration reduce earning capacity * Heinrich, C. J., Burkhardt, B. C., and Shager, H. M. (2010). Reducing Child Support Debt and its Consequences: Can Forgiveness Benefit All? Institute for Research on Poverty, University of Wisconsin–Madison. http://www.irp.wisc.edu/research/childsup/cspolicy/pdfs/2007- 09/FamiliesForward_3_19_10.pdf.

6. Arrears on International Cases Little published research on arrears on international cases Heidelberg Conference research

7. British Columbia International Cases (2015)

8. Arrears Prevention Arrears prevention: Periodic modification to ensure that the maintenance aligns with debtor’s income and circumstances Successful programs include : –Easy access to income information –Administrative or government initiated modifications Purpose: ensure arrears do not grow to the level where the debtor ceases to make any payments (ongoing or arrears)

9. Modification challenges Challenges in Court-based systems –Self-represented litigants –Complex Court processes –Few resources for modification compared to resources for establishing child support –Existence of arrears may preclude access to mediation or dispute resolution services All of this is even more challenging on an international case

10. The child’s perspective Child’s right to an appropriate level of child support How would a creditor know about increases in the debtor’s income? Is there a practical mechanism for the creditor to request information? Who monitors debtor’s income? If the CA does have information about the debtor’s income – can this be shared with the creditor?

11. The (Court) Road to Modification Debtor commences application Limited (if any) assistance Right to modify can be very different in each country –E.g. second families, voluntary unemployment, cancellation of arears Delays in transmission /service /setting hearing = arrears Creditor may be self-represented Role of Central Authority in receiving State in the Court hearing is not clear to Court or parties No retroactive decision = arrears Reality - Timely modification in order to prevent arrears from accruing is unlikely

12. Enforcement Context Enforcement -where theory meets reality Enforcement programs must enforce the existing order If the debtor cannot make the payments – compliance will decrease and enforcement is taken Enforcement / non-compliance cycle continues Even if debtor’s country does not have the legal jurisdiction to change the order – it can control enforcement Unhappy compromise– the only option is to go to Court to limit enforcement (without actually modifying the order)

13. The arrears conundrum Arrears prevention is very challenging on international cases Takes too long and is too complex for most debtors Cancellation of arrears through the two-State process is difficult and uncertain Assistance for debtors who are seeking to reduce payments or cancel arrears is not a high priority Equally challenging for creditors who seek increase Canadian perspective – Courts are frustrated with the cumbersome process

14. Some best practices ? Maintenance decisions that contemplate a regular review and modification (Australia/New Zealand) Recalculation programs have potential

15. Next Steps Collect best practices concerning timely modification on international cases Define any limitations on sharing income information on a regular basis to support modification Continue research to better understand the nature of arrears on international cases

16. Thank You! Hannah Roots hroots@fmep.ag.gov.bc.ca