INTENT

To ensure applicants and respondents are aware of their rights and responsibilities in relation to the initial court hearing or list date.

POLICY

Notification to Applicant

The Child Support Worker (CSW) must notify the applicant of the initial court hearing or List Date and all subsequent court actions. [CASS Regulation Section 2(1)]

Because the applicant has provided evidence in the CSS 4010 Applicant Affidavit, the applicant is not required to be present at the List Date. However, the CSW advises the applicant that although their attendance is not required, they may attend if they wish to be present at the hearing.

If the matter is set for a trial or if the judge wishes to hear more evidence from an applicant at another hearing date, the CSW advises the applicant their attendance is mandatory in court.

The CSW advises the applicant at the time of the assessment interview that court action continues if their assistance file closes unless they contact the worker to stop the action. [IESA Section 29(8)]

Applicant Court Costs
When the department requires an applicant receiving IS benefits to be present at court, an assistance allowance may be provided to cover the cost of transportation, accommodation, food and child care when the applicant must travel away from home.

If the applicant requests financial assistance, the CSW refers the individual to their financial worker.

Location of Court Hearing
Applications are heard in the court jurisdiction where the applicant resides. The court address is recorded on the CSS 3772 Claim that is served on the respondent.

If the applicant moves out of the jurisdiction after court action has started and depending upon the nature of the application, the CSW may complete the action in the original jurisdiction if it facilitates a timely completion of the application.

Time of Hearing
To allow discussion and negotiation between the CSW and the respondent before court, the CSS 3772 Claim states an earlier time than the actual court commencement time. This is important in large CSS volume regions and ensures the court proceedings run efficiently once the court commences. In other jurisdictions, where the volume is less and CSS matters are in the minority when heard along with other applications, the actual court commencement time may be on the documents. In this situation, it is suggested the CSW send a letter to the respondent asking them to come to the courthouse one hour prior to the court commencement time. These arrangements allow the CSW to discuss the respondent’s intentions and advise the lawyer prior to the actual court hearing.

Initial Court Hearing
When matters are initially brought before the court, the hearings are referred to as “List Dates”. The CSW meets with the respondent prior to the court hearing to discuss the issues of support and the willingness of the respondent to agree they are a parent. The worker advises the respondent of their right to obtain legal advice. If a lawyer represents the respondent, the worker may discuss the issues with the lawyer or may refer them to the department lawyer.

The worker notifies the applicant by phone or mail of the results of all court dates.

Children’s Services Involvement prior to or during Court Proceedings

When the applicant’s child(ren) have been apprehended by Children’s Services prior to the court hearing or during the court proceedings, the CSW generally withdraws the case because when the applicant does not have the child(ren) there is no entitlement to support. The CSW may request an adjournment to investigate if the case specifics fit the exceptions.

Exceptions to withdrawing can be made by providing the full facts to the court and requesting an order with the “care and control clause” if the:

• Evidence supports constantly changing circumstances for the child(ren) by moving between the applicant, other relatives or caregivers and Children’s Services, or
• Plan with Children’s Services is to return the child(ren) to the applicant’s care and the applicant has continued receiving IS benefits for the dependants reflecting this plan. The applicant has expenses associated with the children and has parenting involvement, even if it is only through visitation at the time of the court hearing.

In all exceptions, the circumstances are provided to the department lawyer and when the decision is to proceed, the respondent is made aware of the child(ren)’s status.

Negotiation at List Date
On the List Date the CSW, meets with the respondent to:

• Confirm the respondent’s willingness to agree they are a parent of the child(ren).
• Discuss DNA testing requirements if the respondent asks for DNA testing.
• Advise the respondent they will need to ask the court for leave to obtain DNA testing when the child(ren) in this application are from a marriage and the applicant has not named another possible parent. The worker tells the respondent that the department lawyer will be asking the court for a support order.
• Advise the respondent they have the right to have a lawyer.
• Determine if an adjournment is required.
• Discuss the respondent’s financial situation and attempts to negotiate a monthly amount of support according to the Alberta Child Support Guidelines and Tables. Depending on the negotiated amount of support, a review date may be set.
• When the respondent has no current ability to pay:
  • Obtains an order that finds the respondent to be a parent and sets an adjournment date for support, or
  • If the respondent agrees, negotiates support to commence at a future date when the respondent expects to have the ability to pay.
• Confirm the respondent’s address to allow for service of the order by ordinary mail.
• Advise the respondent to appear in front of the judge to consent to the terms and conditions of the order.

When the respondent agrees they are a parent but the amount of support cannot be settled, the CSW advises the lawyer to set the matter down to the end of the List for a hearing.

Respondent Served – Does Not Appear

If the respondent is personally served or served with an Order for Substitutional Service and does not appear, the CSW asks the department lawyer to request an order in the respondent’s absence. This is done by a hearing at the end of the List. There is no authority under the FLA for the court to issue a warrant.

Requests for Adjournment
The disclosure of evidence between the applicant and respondent prior to the court date should decrease the need for adjournments. However, under certain circumstances, the CSW or the respondent may request an adjournment. The court does not deny reasonable requests for adjournment. Reasons a CSW may give to the lawyer when requesting an adjournment are:

• The respondent is willing to appear but is unable to attend until a later date.
• The respondent wishes to obtain legal advice.
• The respondent requests DNA testing.
• The respondent did not respond to the request for financial information in the Claim package and his finances are unknown to the CSW.
• The respondent is not currently in a position to pay support and requires time to find employment.
• The worker requires additional time to respond to any discrepancies between information in the Claim package and the Response and any Affidavit from the respondent information.

While the CSW does not unreasonably contest a respondent’s request for an adjournment, the worker ensures the request is not for the purpose of delaying the court proceedings. The worker usually requests the adjournment be for a short time period, e.g. the next List Date. If the respondent is seeking employment, a longer time period may be allowed.

Respondents who are served may, in some circumstances and with the consent of the CSW, not attend a hearing date to request an adjournment. If the CSW has met with the respondent to make these arrangements, the CSW may request the respondent sign an undertaking to appear at the agreed upon adjournment date. If the respondent does not appear on the agreed to adjournment date, the CSW advises the lawyer to request an order in the respondent’s absence.