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Child Support Services Policy

Published Date: August 05, 2016
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04 Court

Court Proceedings

Hearings and Trials

Alberta Rules of Court Regulation Section
CASS Regulation Section 2
Family Law Act Section 8
Family Law Practice Note 1: Parenting After Separation 


INTENT

To ensure all trials and hearings meet Court of Queen’s Bench and Child Support Services (CSS) requirements.

POLICY

Introduction

Child Support Services (CSS) matters are heard in the Court of Queen’s Bench. The matters may be dealt with by consent, by a hearing on the List Date or by a trial.

Under the Family Law Act (FLA) procedures, the applicant and the Child Support Worker (CSW) complete sworn evidence that is filed with the Clerk of the Court prior to the court hearing. The respondent is asked to respond to the application and sworn evidence prior to the court date.

An applicant receiving CSS is not expected to appear at court unless the matter is scheduled for a trial or if the judge wishes to hear oral evidence from the applicant at a List Date hearing. The court considers the sworn applicant affidavit and worker affidavit to grant a Support Order.

Note
Applicants who are other Albertans with low income or former assistance clients-continuing CSS must attend court. The CSW cannot confirm the current circumstance of these applicants and the Director does not have their rights to ongoing support. When the worker believes the matter will be settled on a List Date, these applicants must attend the court hearing. If the worker knows in advance the matter will be adjourned e.g. the respondent has requested DNA testing, the applicant is not required to be present. The worker requests the department lawyer to adjourn the matter to the next List Date if the applicant’s attendance is required to settle the matter and the applicant is not present on the List Date.

Order in the Absence of Respondent

When a respondent has been personally served or served subject to an Order for Substitutional Service, and does not appear at a scheduled List Date, the court has the authority to make a Support Order in the respondent’s absence. There is no authority under the FLA to issue a warrant.

Department lawyers will request these matters be dealt with at hearings at the end of the List unless a presumption of parentage cannot be made because the applicant has indicated there is more than one possible father and no DNA testing or previous court finding has occurred to rule out the other possible father(s). In these situations, the lawyer will request a trial be scheduled to allow the applicant to give oral evidence.

If the judge will not hear the matter in a hearing on the List Date, the matter is scheduled for a trial.

Court Hearings

List Date
The List Date refers to the initial court date to which a respondent is notified to attend by being served with court documents. To facilitate efficiencies for the CSS program, department lawyers and for the courts in high volume jurisdictions, CSS matters are set for specified days each month. In other jurisdictions, the CSW schedules all their matters for the monthly date when the court sits in their area.

The purpose of the List Date is to allow the worker to negotiate consent arrangements, request adjournments if required, deal with matters adjourned from previous List Dates, identify the matters that will be set to the end of the List for hearings or ask the department lawyer to request a trial date be scheduled.

When the respondent appears at a List Date and does not consent to a Support Order, the department lawyer will either request a hearing at the end of the List or schedule a trial date if applicant oral evidence is required by the court.

Hearings on a List Date
The worker requests a matter be set to the end of List for a hearing when:

  • The respondent agrees that they are a parent, but the matter of support cannot be negotiated.
  • The respondent does not agree he is a parent but the presumptions of parentage due to legal marriage apply and the applicant has not named another possible father. [FLA Section 8(1)(a)(b)(c)]
  • The respondent does not agree he is a parent even though DNA testing results indicate he is the biological parent.
  • The respondent was personally served or served subject to an Order for Substitutional Service and did not appear and the applicant has only named one possible respondent or DNA testing has ruled out the other possible parent(s) if more than one respondent was named.


The department lawyer presents the Applicant Affidavit and Director Affidavit. The court may hear CSW oral evidence. The respondent or the respondent’s lawyer, if present, has the opportunity to present their evidence.

If the judge requires further oral evidence from the applicant the judge may set the matter for a trial.

Adjournments for Hearings
Depending upon the volume of CSS matters on a List Date and the type of matter, the department lawyer will determine if a matter will proceed by a hearing at the end of the List or if the court will be asked to adjourn the matter until the next List Date. If required, adjournments allow the lawyers to review the files and identify to the court in advance the number of matters scheduled for hearings on the next List Date.

Trials

Trial Scheduled in Respondent’s Absence
When the respondent has been properly served with court documents and does not appear at the List Date, a trial date may be requested by the department lawyer if the matter cannot be dealt with by a hearing at the List date or the judge may set a trial date if the court finds that applicant oral evidence is required.

When the matter is set for a trial, an order is obtained at the List that:

  • States the trial date, and
  • Indicates the issue of support with a finding of parentage will be settled on that date.


The CSW sends the following documents by ordinary mail to the respondent:

  • A copy of the order obtained at List, and
  • A letter outlining expectations and information concerning the trial date. The worker indicates an order will be granted even if the respondent does not appear on that date.


Trial
When a respondent has appeared at the initial List Date and if a Support Order that includes a finding of parentage cannot be obtained either by consent or by a hearing, the matter is set for trial.

The parents will be required to attend Parenting After Separation before the trial when:

  • The parties are/were married and the child(ren) is from the marriage, or
  • The parents have cohabited for at least six months where both parties shared the parenting and only the amount of support is to be determined at the trial. Parentage has been determined by consent or a previous finding of parentage.


Some Regions may be able to proceed with the trial at the List Date. In other Regions, these matters are scheduled for specific trial dates.

Preparing for Trials

Required Information
The CSW meets with the applicant in advance of the trial date:

  • To prepare the applicant on matters concerning court process, protocol, etiquette and giving evidence, and
  • To review and update the applicant’s evidence previously provided in the CSS Intake Information and the CSS 4010 Applicant Affidavit that will be presented by the department lawyer in court.


DNA Testing
DNA testing is considered the most medically reliable evidence of determining parentage. The respondent cannot be forced to undergo testing but an adverse inference may be drawn due to non-participation.

Pre-Trial Responsibilities
Prior to the trial date, the CSW ensures the applicant and any witnesses are advised that:

  • Their attendance is required on the trial date, and
  • They are required to be present at the court one hour prior to the scheduled trial time.


In situations where the witnesses require financial assistance to attend the trial, the CSW consults with the CSS Specialist or CSS Supervisor and the department lawyer. CSS has allocated funds to meet this court cost. If the witness is in receipt of IS benefits, the CSW:

  • Contacts their financial worker to confirm they are required to attend court.
  • Advises the witness to discuss their financial need with their financial worker.


The CSW advises the department lawyer to include witness expenses as part of the costs requested in the Support Order.

Prior to Court Hearing
At court, the CSW and the applicant review all the information that the CSW has forwarded to the department lawyer to ensure the information is correct.

The CSW reviews the evidence each witness is prepared to give in court.

The CSW reviews court procedures and court etiquette with the applicant and witnesses.

The CSW gives the department lawyer any new information. The applicant and any witnesses may meet with the department lawyer to review the evidence.

The CSW meets with the respondent to determine if the matters of paternity and support can be settled by consent or whether the respondent has retained a lawyer. The worker gives the respondent’s information to the department lawyer.

Trial Procedures

Respondent Consents
When the respondent consents to a Support Order, the CSW:

  • Advises the department lawyer of the terms of the order, and
  • Advises the applicant and respondent to appear in the court room to consent to the terms of the order.


Respondent Does Not Consent
When the respondent is not prepared to consent to a Support Order the CSW advises the department lawyer the matter should proceed to a trial.

Respondent Has Lawyer
The CSW or the department lawyer discusses with the respondent’s lawyer whether the trial should proceed and attempts to negotiate a settlement. If the matter is resolved by consent prior to the court hearing:

  • The lawyer for the respondent advises the court the respondent is consenting to a Support Order that includes a finding the respondent is a parent.
  • The lawyer for the department presents the terms of the order to the court.


When the matter is not settled by consent, the respondent and the applicant as well as all material evidence is called into trial. The lawyers conduct the trial.

Order Granted
When a Support Order is granted, the department lawyer ensures the order is prepared and filed with the Clerk of the Court. The department lawyer sends:

  • A certified copy and a copy of the order to the CSW, and
  • If applicable, a copy of the order to the respondent’s lawyer.


The CSW sends a copy of the order to the applicant and to the respondent along with the applicable Maintenance Enforcement Program (MEP) registration letters. The CSW ensures the CSS 2551 MEP Disbursement Instructions are forwarded to MEP.

Appeal
The department may appeal the court decision when the case is dismissed.

The department or the respondent may appeal the court decision on support when either party considers the decision unfair or unrealistic. Appeals are held in Court of Appeal and legal counsel represents both the respondent and the department.

When the department wishes to appeal a decision or when the department is notified the respondent is appealing, the CSS Supervisor or CSS Specialist contacts the Department of Justice, Alberta Justice Social Enhancement Legal Team.

An appeal must be initiated within one month following the date of the court decision or within one month following the date the person received notice of the order. [Alberta Rules of Court Regulation 12.60]

If the respondent tells the CSW they wish to appeal a decision the worker advises the respondent:

  • They have the right to appeal the decision.
  • They must appeal within one month following the date of the court decision or within one month within the date the person received notice of the order. [Alberta Rules of Court Regulation 12.60]
  • An appeal is initiated by contacting the Clerk of the Court.
  • Appeals are heard in Court of Appeal.
  • They may want to retain a lawyer.