Bill 64 - An Act to promote access to justice in family matters | Protecteur du Citoyen
May 22, 2012

Bill 64 - An Act to promote access to justice in family matters

Corps

Mister Chair,

Mister Minister,

Ladies, Gentlemen, Members of the Committee,

Support for a long-awaited bill

I herald the tabling of Bill 64 currently under study, coming as it does partly in response to representations made by the Québec Ombudsman, and as it is a necessary, long-expected advance. I am aware of the efforts that authorities and those in charge of the file at the Ministère de la Justice had to make to persuade people at different levels, most of them outside the Government. Their perseverance is noteworthy.

Once the bill becomes law, Québec will have made up for lost time in simplifying access to justice in family matters.

Access to justice is a real issue, particularly in family matters. Year after year, the Québec Ombudsman has received numerous complaints concerning the obligation of systematically having recourse to the court in order to have support payments reviewed or cancelled when former spouses reach an agreement. Bill 64 proposes a solution for some of those difficulties; however, in my opinion, some provisions ought to be made more specific or explained.

Comments of the Québec Ombudsman

I will limit my comments to the following five aspects:

  1. Regulatory powers;
  2. SARPA’s power to act and administrative justice;
  3. Bringing SARPA under the jurisdiction of the Québec Ombudsman;
  4. Cancellation of child support for a financially independent adult child;
  5. Fees.

1. Regulatory powers

Certain aspects which are slated to be dealt with in regulations should instead be integrated into the law. These matters concern situations of eligibility for SARPA services, and conditions that must then be met (s. 2 of the bill), the kinds of situations where SARPA could, without parental consent, conduct checks with persons, departments and organizations of the accuracy of information or documents provided for the purpose of recalculating child support (s. 7 of the bill), and finally the cases and terms under which a SARPA recalculation could apply retroactively (s. 9 of the bill).

If it is relevant to grant SARPA the authority to seek information from third parties in the name of effectiveness and due diligence in respect of the applications that the service will be called upon to process, I am of the opinion that the nature and impact of these aspects on people affected warrant a stability that a statute can better guarantee than a regulatory text can.

2. SARPA’s power to act and administrative justice

The bill assigns certain powers to the officials who will be processing the applications for support recalculation. In certain respects, these powers could be strengthened so that SARPA acts in a truly effective way. In addition, the exercise of those powers must be clearly delineated to protect the rights of the parties.

Since SARPA’s administrative service will be made available to citizens, and since the Commission des services juridiques, the entity responsible for its operation, is not subject to the Act respecting administrative justice, I am of the opinion that SARPA should be made subject to sections 1 to 8 of the Act, which would ensure respect of the principles of procedural fairness. This covers in particular the duty to act fairly, as well as ensuring that procedures that are conducted according to flexible rules devoid of formalism, that citizens have the opportunity to provide information and complete their files, that diligence applies in the processing of applications and decisions are clearly conveyed, that reasons are given for all unfavourable decisions and that non-judicial recourse available under the law is indicated. Making SARPA subject to these sections would better guarantee citizens have a service that is effective, accessible and respectful of their rights.

Time limits are very important in the recalculation of support, as the new amount of a payment will apply retroactively as of the application date, or even as of a prior date not more than one year earlier (s. 9 and 38 of the bill). Therefore, each time support is recalculated, arrears due the creditor or a recoverable overpayment for the debtor will automatically come into being. For this reason, the length of time allowed for making a decision must be kept to a strict minimum.

Certain other measures could be taken to ensure the effectiveness and promptness of the administrative service, among them the reinforcement of SARPA’s power to require information it needs to examine an application for recalculation and impose penalties for failure to abide by the requirement.

The bill already provides that SARPA will be able to demand that parents provide information or documents.

Nothing, however, makes provision for requiring a third party—the debtor’s employer, for example—to convey information needed by SARPA within a given period, or any penalty for failure to comply. In my opinion, this obligation to provide SARPA with the documentation demanded, under penalty for failure to do so, should be included in the bill.

There is provision for verifying the accuracy of information with the persons, departments and organizations determined by regulation. This verification authority does not set a response time limit on the person, department or organization. Moreover, there is no consequence prescribed for failure to respond, on the part of an employer, for instance.

Considering the foregoing, I recommend:

Recommendation 1:

That the aspects covered by sections 4, 7 and 9 of Bill 64 be incorporated into the statutory text of the bill rather than in an enabling regulation.

Recommendation 2:

That Chapter I of Title I of the Act respecting administrative justice (R.S.Q., c. J-3) apply to the Service administratif de rajustement des pensions alimentaires pour enfants (SARPA).

Recommendation 3:

That section 3 of Bill 64 be amended to prescribe a maximum amount of time allowed for the examination of an application for child support recalculation once SARPA has received all the information it requires.

Recommendation 4:

That SARPA be given the power to demand that a third party provide information within a prescribed amount of time for the examination of an application for child support recalculation, under penalty in the event of failure to comply with this obligation.

I also underline the importance of making provision for the necessary means and resources in instituting the new service and the effective exercise of its mission. The Québec Ombudsman sees on a daily basis the real impact of organizations taking unreasonable time to respond to citizens. Those delays are often caused by short staffing or transitions that have not been sufficiently prepared at various levels, including at the level of information technologies.

3. Québec Ombudsman jurisdiction

Since SARPA will be part of the Commission des services juridiques, it would be outside the scope of the Québec Ombudsman’s intervention. Commission staff are not appointed under the Public Service Act, and so, they would not be subject, unless an exception is made to the rule.

The Québec Ombudsman would, however, help guarantee the quality of this new administrative service with a right of oversight on its operations, its interactions with citizens, and its compliance with the Act respecting administrative justice, among other things.

Being non-judicial and independent, the Québec Ombudsman plays a different but complementary role to the courts, and contributes to improving the public services of departments and agencies, such that its expertise in the area would be of value in instituting SARPA.

Which is why I recommend:

Recommendation 5:

That section 15 of the Public Protector Act be amended by adding the following paragraph:

(9) the Service administratif de rajustement des pensions alimentaires pour enfants covered by Chapters I to VII of the Act to promote access to justice in family matters.

4. Cancellation of child support for a financially independent adult

In Droit de la famille — 10860, the Québec Superior Court ruled that Revenu Québec could in a very specific circumstance end its child support collection obligation without having go to court for a decision. The judgment allowed Revenu Québec, when the facts are not challenged, to stop collecting child support on behalf of someone who has become a financially independent adult.

After having applied the principles of this ruling, Revenu Québec suspended the practice at the end of May 2011. Revenu Québec stated in January 2012 that it would no longer be applying the judgment’s principles.

For the benefit of the reflection of the Committee on Institutions on this streamlined procedure, the Québec Ombudsman would like to recall certain advantages of the procedure instituted by Revenu Québec to implement the decision in the case. Not only was the procedure free of charge, Revenu Québec officers were applying it assiduously, making sure that the consent of the parties was valid. In addition, Revenu Québec has access to the full collection record, and so can detect possible cases of undue pressure being applied to end the support obligation.

The special clerk who will be called upon to deal with the procedure proposed by the Ministère de la Justice will not have this information available. However, the special clerk may refer the application to the judge “if he considers that the agreement between the parties does not provide sufficient protection for the interests of the children or that a party’s consent was obtained under duress” (s. 45, par. 2 of the Code of Civil Procedure). To do this, the parties can be summoned and heard. These possibilities remain theoretical, however, where the consent of the independent adult child is included in the procedures, as the special clerk’s approval is then automatic.

A procedure for cancelling the obligation of paying support in those situations should not entail additional expenses for parents. This, in my opinion, is an aspect to consider in the current examination of Bill 64.

5. Fees

SARPA will provide citizens with a speedy and accessible way to have child support amounts changed where the exercise of a court’s discretion is not required. The fees stated ($275) seem reasonable when compared to the costs of legal action, which in 2007 averaged some $2,100.

The possibility of full recovery in some circumstances of security deposited with Revenu Québec marks significant progress, in the interest of former spouses and the public administration in the collection of child support by Revenu Québec.

Beyond these specific considerations, in conclusion, I insist on the need to keep in mind the bill’s underlying goal—access to justice. Bill 64’s openness to alternatives for judicial action must not be hindered by administrative rigidity and requirements or by the specific interests of certain parties.

Thank you.