Ms. Virginia McRae (Co-Chair) Department of Justice Canada Ottawa, Ont.	Ms. Betty Ann Pottruff, Q.C. (Co-Chair) Saskatchewan Justice Regina, Sask.
Ms. Lucy Austin Department of Justice Yellowknife, N.W.T.	Mr. Robin Bassett Ministry of Attorney General Victoria, B.C.
Mr. John Booth Alberta Justice Edmonton, Alta.	Mr. Michael Comeau Department of Justice Fredericton, N.B
Ms. Betty Egan Office of the Attorney General Charlottetown, P.E.I.	Me Hélène Fortin Ministère de la Justice Sainte-Foy, Que.
Mr. Brian F. Furey Department of Justice St. John's, Nfld. and Lab.	Maître Denise Gervais Ministère de la Justice Sainte-Foy, Que.
Ms. Sheri Hogeboom Department of Justice Whitehorse, Y.T.	Ms. Maria Lodge Nunavut Justice Iqaluit, Nunavut
Ms. Joan A. MacPhail, Q.C. Manitoba Justice Winnipeg, Man.	Ms. Averie McNary Alberta Justice Edmonton, Alta.
Ms. Tilly Pillay Department of Justice Halifax, N.S.	Ms. Anne Marie Predko Ministry of the Attorney General Toronto, Ont.
Ms. Risa Sheriff Ministry of the Attorney General Toronto, Ont.	Ms. Janet Sigurdson Manitoba Justice Winnipeg, Man.

PART 1: CUSTODY AND ACCESS

A. FAMILIES TODAY

Over the course of a child's lifetime, his or her family may form, break up and re-form.  The initial family unit may consist of one or both parents and one or more children.  Often, grandparents, aunts, uncles or other relatives form an extended family to care for the child.  Laws and services directed at the care and upbringing of children seek to recognize and accommodate the diversity of family forms in which children live.

Children are society's future.  Their health and well-being should be a primary concern.  Policy-makers need to consider how to respond to research and experience that demonstrates children's well-being can be harmed by separation and divorce, and the restructuring of the family.[4]  Problems faced by children during family restructuring seem to be increasing.  Social change has resulted in an increase in single-parent families and blended families and the potential for children to face multiple family restructurings.[5]

Recent surveys of family life have revealed four main trends.  First, most children are born into two-parent families, but an increasing number of these parents are not married.  Second, children are increasingly experiencing life in a single-parent family and doing so at an earlier age than previously.  For example, an analysis of data from the National Longitudinal Survey of Children and Youth (NLSCY) shows that one in four children born in the early 1970s saw their parents separate by age fifteen.  Just over ten years later, one out of four children born in the early 1980s had experienced their parents' separation by age ten.  By the late 1980s, almost one in four children born in 1987 to 1988 saw their parents separate by age six.[6]  Third, children born to common-law couples face a greater risk of experiencing parental separation than do children whose parents are married.[7]  Fourth, more children are subject to multiple family structures.  This is so because children are younger at the time of the first family separation and their parents are more likely to re-couple (perhaps more than once) with other adults, some of whom will also have children from another relationship.

An increasing number of Canadian children live with only one parent, while the other parent lives in another family structure.  Many children have parents who are not married.  A recent analysis of NLSCY data shows that in the early 1960s over ninety percent of all births were to two married parents who had never cohabited before marriage.  In contrast, by 1993–94, less than forty percent of all births were to married parents who had never cohabited before marriage, and twenty percent of children were born to unmarried parents.  This trend is strongest in Quebec, where only twenty-three percent of births were to parents who married without first living together, and forty-three percent of births were to common-law couples.[8]

Children, regardless of their family structure, need stable and nurturing environments, protection from negative influences such as conflict, poverty and violence, and positive relationships with at least one adult.[9]  Problems faced by a family prior to separation, such as poverty or ineffective parenting, may often be aggravated by divorce or separation.  Parents who are emotionally or financially challenged by the separation or divorce may feel bewildered, angry, victimized or diminished by the changes in the family structure.  Children may feel that they are responsible for the family breakdown, isolated from previous support systems and emotionally depressed.

The NLSCY shows that children at risk (e.g., low socio-economic status, low parental education, family dysfunction, prenatal problems, and children of single parents) have fewer behavioural problems when raised with positive and consistent parenting.  Parenting style, particularly a hostile parenting style, has a more negative effect on children's behaviour than other factors such as income or family structure.[10]

B. THE FAMILY LAW COMMITTEE PROJECT

The Deputy Ministers Responsible for Justice directed the Family Law Committee to make custody and access issues a priority, both as a matter of family law reform and as an integrated justice services project.  The project was given the following mandate:

Identify and make recommendations respecting custody and access issues that arise before, during and after family disputes.  This will involve developing a strategy to deal with legislative and service delivery issues requiring immediate priority for action, and also identifying an integrated, multi-sectoral process to respond to the longer term legal, environmental and service needs of children and families, for the purposes of:

• responding nationally to the public concerns which continue to be raised concerning current practice, law and services, available in the custody and access area;
• promoting the development of a public consensus or dialogue on appropriate types and levels of response; and
• developing integrated and diversity sensitive approaches to services that better serve the client and the public interest.

In December 1999, the then Ministers Responsible for Justice reviewed and approved the work plan for the project, the plans to hold public consultations and a set of principles to guide family law reform.  As well, the federal Minister, with the concurrence of her provincial and territorial colleagues, also agreed to refer the recommendations of the Special Joint Committee on Child Custody and Access[11]to the Family Law Committee to include in its review.

In March 2001, a consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada,[12] was released and the public was invited to respond both in writing and through workshops that were held from April to June 2001 in every province and territory.  The issues identified and discussed in Putting Children's Interests First reflected concerns that had been raised nationally on custody, access and child support.  The consultations provided a wide range of comments on these issues.  A review of the report from the consultations[13] reveals a general consensus on certain broad themes, including:

While a diversity of views was expressed on most issues, the workshop format encouraged participants to listen to and learn from the perspectives of different people concerned about children and families experiencing divorce and separation.  Workshop participants, in total about 750 people, represented social service, education, enforcement, legal community, child welfare, health, women's interest groups, men's interest groups, grandparents' groups, non-custodial parents' groups, and Aboriginal organizations.  As well, there were youth workshops.

The Family Law Committee also reviewed the recommendations of the Special Joint Committee on Child Custody and Access.  In its report, For the Sake of the Children, the Committee made forty-eight recommendations on custody, access and child support, including legal and service issues.[14]  The Committee's recommendations concerning the issues addressed in this report are discussed in the relevant sections of this report.

The Family Law Committee's work on the custody and access project was informed by research on various topics conducted before and during the life of the project by the federal government, and through other consultations, research and reviews conducted at the provincial and territorial level.

For example, Saskatchewan began a review of service and legislative issues with the March 1998 release of Promoting Resiliency in Children and Families:  A Discussion Paper on the Effects of Separation and Divorce.[15]  The paper was available for public response and was discussed in five multi-sectoral workshops.  The results led to development of another paper, Promoting Resiliency in Children and Families:  Identifying Priorities,[16]released in fall 2000 for public discussion and a further round of multi-sectoral workshops.  Participants in both workshop sessions have provided feedback that helped direct provincial approaches to participating in the national Putting Children's Interests First:  Custody, Access and Child Support in Canada consultations.[17]

In Alberta, the Unified Family Court Task Force submitted a report recommending a single court to deal with family matters.[18]  The Government of Alberta has also initiated the Alberta Family Law Reform Project.  Public consultations on family law reform began in February and March 2002.

On April 29, 2002, Children Come First:  A Report to Parliament on the Provisions and Operation of the Federal Child Support Guidelines was tabled in the House of Commons by the federal Minister of Justice.[19]  The Report to Parliament contains the recommendations for amendments to the Federal Child Support Guidelines found in Part 2 of this report entitled Child Support.  The federal, provincial and territorial governments worked together through the Family Law Committee to develop these recommendations.  The Report to Parliament also provides information on how governments worked together to implement the guidelines across Canada through the delivery of family justice services, carrying out research projects, conducting public awareness and information campaigns for parents, lawyers and judges and improving the enforcement of support orders.

The Report to Parliament also outlines the steps that governments have taken to work together to improve the enforcement of support obligations.  For the family law justice system to work, family support obligations must be enforceable.  In Canada, the provinces and territories are responsible for the enforcement of family support orders.  However, over the past six years, the Government of Canada has taken a more active role in enforcement.

The federal government has concentrated its enforcement efforts in the areas of co-ordination and enhanced federal enforcement tools.  It has established a federal enforcement policy unit, increased project-based funding, and launched a comprehensive program of research on enforcement and compliance issues.  The results of some of the research are expected this year, and they will be extremely valuable in assessing ongoing efforts and, therefore, in planning for the future.

The scope of the custody and access and child support project did not include assessment of support enforcement policy or program issues.  For more information about federal/provincial/territorial work on enforcement of support, the reader is referred to the Report to Parliament.

The Deputy Ministers Responsible for Justice have asked that all policy work include discussion of diversity issues.  The Family Law Committee recognizes that its review has not yet sufficiently addressed diversity and Aboriginal issues with respect to family law and family law services.  More work is required to meet this expectation.  Although Aboriginal workshops were held in Ottawa in June 2001,[20] and research was conducted in Nunavut,[21] the Family Law Committee suggests that more dialogue about the needs of specific communities is necessary.

Recommendation 1

It is recommended that continued dialogue, research and development be undertaken to address diversity and Aboriginal issues with respect to family law.

It is the hope of the Family Law Committee that distribution of the report from the national consultations, availability of research conducted for this project, and this report itself will continue to foster dialogue, discussion and the development of consensus on the important issues addressed in this report.

C. PRINCIPLES AND OBJECTIVES

As mentioned above, Ministers Responsible for Justice approved a set of guiding principles for family law reform in December 1999.  These principles were included in the text of the consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada,[22] and during the consultations there appeared to be agreement with these principles.  The Family Law Committee proposes that these principles continue to guide the development of a longer term, collaborative, inter-jurisdictional response to family law reform and family law service enhancement.

Recommendation 2

It is recommended that the principles and objectives of family law reform be as follows:

Principles

Ensure that the needs and well-being of children come first.

Promote an approach that recognizes that no one way of parenting after separation and divorce will be ideal for all children, and that takes into account how children and youth face separation and divorce at different stages of development.

Support measures that protect children from violence, conflict, abuse and economic hardship.

Recognize that children and youth benefit from the opportunity to develop and maintain meaningful relationships with both parents, when it is safe and positive to do so.

Recognize that children and youth benefit from the opportunity to develop and maintain meaningful relationships with their grandparents and other extended-family members, when it is safe and positive to do so.

Recognize the positive contributions of culture and religion in children's lives.

Promote non-adversarial dispute-resolution mechanisms and retain court hearings as mechanisms of last resort.

Provide legislative clarity to the legal responsibilities of caring for children.

Recognize the overlapping jurisdictions in custody and access matters in Canada, and make efforts to provide co-ordinated and complementary legislation and services.

Objectives

To focus parents, professionals and services to better serve children's needs and interests.

To reduce the negative impact of conflict on children and to promote healthy models of dispute resolution.

To support positive parental, extended family, and cultural interactions with the child.

To provide clearer, more predictable and understood responses to family justice issues.

D. THE ROLE OF FEDERAL, PROVINCIAL AND TERRITORIAL LAWS

Custody, access and child support are areas of shared constitutional jurisdiction because of Parliament's responsibility for marriage and divorce and the provinces' responsibility for property and civil rights.  The Divorce Act applies to custody, access and child support when these issues are determined under that legislation during divorce proceedings.  These issues are determined by provincial and territorial legislation for separating married parents who are proceeding under provincial legislation for orders of separation and other relief, and when divorcing parents choose to proceed under provincial legislation during divorce proceedings.  They are also determined under provincial legislation for unmarried parents.  Provincial and territorial law governs all other aspects of family law in relation to parents and children, for example, establishment of parentage, adoption, change of name, child protection, guardianship of the estate of the child and consent to medical treatment.

Thus there are at least fourteen different statutes and fourteen different statutory provisions governing custody and access in Canada.  Some provinces and territories have more than one statute that affects custody and access.  Appendix C outlines the statutory provisions in all Canadian jurisdictions.  None of the provisions is exactly the same, although there are important common elements.  All provide that the governing and fundamental principle is the best interests of the child.[23]  All use the term custody, although is it is not always the primary term used to define parental rights and responsibilities.  For example, in British Columbia and Alberta, guardianship is the primary term employed in the legislation.

The specific definition or use of the term custody varies from statute to statute, but, except in the Quebec legislation, the term usually refers to all the rights and obligations related to the care and control of a child, including legal custody, the responsibility to make all important decisions about a child's care and upbringing, and physical custody, the responsibility for the everyday physical care and control of the child.  This bundle of rights and responsibilities is sometimes called "guardianship of the person" of the child.  It generally does not include responsibilities related to the children's property or estate, which is often referred to as "guardianship of the estate" of the child.[24]

For example, in Saskatchewan, The Children's Law Act, 1997 defines custody to mean "personal guardianship of a child and includes care, upbringing and any other incident of custody having regard to the child's age and maturity."[25]  Under Quebec law, in contrast, custody has a narrower meaning.  It refers only to physical custody.  The Quebec concept of parental authority is closer to the concept of custody as it is used in other Canadian jurisdictions.  The common denominator across Canada is that, at the least, the term custody implies the actual physical care and control of the child and the practical day-to-day decision making required to fulfil that responsibility.

Access, as it is used in the legislation, refers to the non-custodial parent's contact with the child, through visits or otherwise.  Some of the statutes contemplate a somewhat broader definition of access than do others.  For example, some legislation specifies that access includes the right to be provided with important information about the child.  Others specify that this is a right to information only, and not a right to be consulted or participate in decision making.

Joint custody, while not defined per se in any statute, is a term usually used to refer to a situation where both parents have legal custody of the child, although one parent may have physical custody, or primary physical care and control.  Its usage is akin to the Quebec concept of joint parental authority.

Shared custody is not a term currently used in Canadian custody legislation.  It generally refers to a situation where parents share physical custody, as well as legal custody.[26]

Canadian legislation generally allows the court wide discretion to fashion the kind of order it considers appropriate in the circumstances.  The courts can and do order a wide variety of parenting arrangements, both under the Divorce Act and under provincial and territorial legislation.  Some examples are:

The legislation also does not preclude the parents from entering into, by agreement, whatever parenting arrangement in their view best suits their divided family.  Parents are not bound to use the statutory terminology in their own agreements, although precision in a custody order is essential to enforcement should disputes arise.

E. OVERVIEW OF RESEARCH AND CONSULTATIONS

In recent years, a number of countries have made significant changes to their laws governing child custody and access.  The Family Law Committee studied changes in the State of Washington, the United Kingdom, and Australia in some detail. [27]  These jurisdictions were chosen for several reasons.  Each has made significant changes to the terminology of custody and access.  The new legislation has been in effect in these jurisdictions for a number of years and, as a result, some evaluation material concerning the impact of the legislation is available.  Although none of the evaluations are conclusive in terms of the effects of the legislation, the available research does indicate that the legislation has not yet had positive benefits in terms of reducing litigation and conflict between parents.  The Family Law Committee also looked at custody and access reforms in civil law countries, particularly in France.[28]

This report also draws upon research conducted here in Canada.  Much of this recent research has been undertaken in co-ordination with the Family Law Committee.  Most of it is fairly recent, having been undertaken in the last four years following the release of the Special Joint Committee on Child Custody and Access report and its suggestion that further Canadian research was needed and should be undertaken.[29]  Different types of research projects have been undertaken, including legal research, empirical research and consultative research.

Examples of the kinds of legal research undertaken include analyses of options for reforming access enforcement or addressing high-conflict cases.[30]  The empirical research includes projects that have looked at available statistical data from existing surveys such as the National Longitudinal Survey of Children and Youth and the General Social Survey,[31] as well as related sociological reviews of available literature on topics of concern such as false allegations of abuse and high conflict.[32]  The consultative research includes consultations with the general public[33] as well as consultations with professionals who work with families in transition.[34]

This report draws on this Canadian research.  Throughout the report, where appropriate, research results are offered and references to the research are provided for the interested reader.  Taken as a whole, the research is another example of the fruits of federal-provincial-territorial co-operation and the benefits of informed policy development.  The body of research is fairly large, but it is the view of the Family Law Committee that further research is required to continue to develop and enhance our understanding of families, family transitions, and family-law related problems and issues.[35]

Recommendation 3

It is recommended that there be a continued national emphasis on research and evaluation to monitor trends and the impact of reforms in law and services.

F. KEY LEGISLATIVE ISSUES

While a number of concerns have been raised about current custody and access legislation, it is clear from the public consultations, from the report of the Special Joint Committee on Child Custody and Access, and from responses from organizations such as the Canadian Bar Association, that many Canadians do not view legislative change as the sole or even primary focus for family law reform.  It is generally recognized that legislative change without service enhancement or reform may have limited or no impact on the way families and children deal with family breakdown and reconstruction.[36]  The need for services and family-sensitive dispute resolution mechanisms to support families in dealing with separation issues in the best way for the children has been a dominant theme of the custody reform discussion.  The options for reform in services and dispute resolution processes are discussed in more detail in Section G of this report entitled "Service Options and Responses."

This section of the report addresses concerns about the current legislative framework for custody and access.  There are some key issues and these were put forward for discussion in the 2001 Putting Children's Interests First:  Custody, Access and Child Support in Canada First consultation document.  They are defining "best interests"; terminology; family violence; high-conflict relationships, addressing children's perspectives; and meeting custody and access responsibilities.

Defining "Best Interests"

Custody and access law and services in Canada are guided by the basic principle that all decisions must be made in the best interests of the child.  This is also the standard adopted in the United Nations Convention on the Rights of the Child.[37]

All Canadian statutes governing custody and access incorporate this overriding principle and direct the courts to consider the child's best interests in making custody and access decisions.[38] Some, but not all, provincial and territorial laws list specific factors that parents are to consider when determining the best interests of the child.  The Divorce Act does not contain such a list.  The Special Joint Committee on Child Custody and Access recommendeda list of criteria to consider in determining the best interests of the child.[39]

The consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada, contained a broad list of factors that could be included in a definition of best interests.[40]  The possible factors were characterized as falling within several broad themes:

Stakeholders were asked whether best interests criteria should be inserted in the Divorce Act and, if so, which criteria should be included.  While many supported a change to help ensure that best interests would be better understood, many participants questioned the overall impact such a change might have.  For them, a greater focus on public education and family services might achieve more concrete results in better educating parents, families and professionals on the meaning of best interests.  Although there was no consensus for adopting a defined list of criteria, there was some appreciation that a non-exclusive list did not have any perceived negative impact in those jurisdictions that had adopted criteria.[41]

The Family Law Committee has some concerns that an exhaustive list of criteria may create new areas of litigation based on the enumerated items.  However, a balanced, non-exhaustive list of criteria could provide guidance to parents, professionals and the courts on the kinds of factors to consider and should not in itself encourage new litigation.

Recommendation 4

It is recommended that custody legislation contain an explanatory non-exhaustive list of criteria for parents, judges and others involved in the decision-making process to consider when determining the custody arrangement that is in the best interests of the child or children.  The factors to be listed include:

Recommendation 5

It is recommended that any list of best interests criteria be child-centred to ensure that the child's best interests remain the foremost consideration in custody and access decision making.

Terminology

Use of the terms custody and access has been criticized.  It is argued that the terms are inappropriate to describe a parent-child relationship because they have connotations of the old concept of the child as the property of the parents, and because they encourage parents to focus on their rights rather than on their responsibilities.  From the critics' perspective, the terms are "emotionally loaded" and promote a culture of litigation that leaves one parent the "winner" and the other a "loser," irrespective of their parenting abilities. 

Advocates of abandoning the current terminology also often link their concerns about custody language to a concern that parenting responsibilities are not allocated appropriately under the current legal approach.  They feel that it results in one parent having most of the authority and responsibilities in relation to the child, to the virtual exclusion of the other parent from a meaningful parenting role.  Some link the current language and approach to an allegation that the current system is gender-biased.  These critics feel that what is required is not only new language but also a new concept of allocating parenting responsibilities after separation and divorce.

Because of similar concerns, some other common-law countries and American states have discarded the traditional custody and access language and adopted new terminology and often new substantive legal concepts.  For example, in Australia and the United Kingdom, the terms custody and access were replaced by the terms parental responsibility, residence and contact.  Washington State replaced custody and access with a regime based on parenting plans in which parenting functions, including decision-making authority, are allocated to each parent.[42]

Some civil law jurisdictions have also been reviewing the language they use to describe parenting arrangements.  In the 1970s, family law went through significant changes in European civil law countries, particularly in France.  The Council of Europe in 1984 recommended the use of the term parental responsibilities.  Although France continues to use the term parental authority, France has proposed a new approach for courts and others to assist parents in organizing the terms and conditions of their parental authority.[43]

The Special Joint Committee on Child Custody and Access recommended that the terms custody and access be replaced in our legislation with a new regime and terminology that the committee called shared parenting, where "in almost all cases both parents will continue, after separation and divorce, to exercise their pre-separation decision-making roles."[44]

On the other hand, supporters of retaining the current terminology maintain that the existing terminology is not necessarily negative.  Parents can define their roles appropriately by agreement and the courts have wide discretion to mould the parenting arrangement to suit each family by allocating the incidents of custody in a positive way.

The proponents of retaining the current custody language point out that it is important to be realistic about how much changing legislation can accomplish.[45]  Changing legal terminology cannot alter attitudes or force parties to abandon confrontation.  Indeed, the Australian experience demonstrates that attempts to clarify terminology may increase the potential for litigation and misunderstanding.  While there are those who argue for some form of presumption of joint parental responsibility or shared parenting,[46] the Australian experience suggests that jurisdictions be cautious in inserting new terminology given its potential to be misunderstood or to lead to negative results in terms of balancing the interests of children and their parents.

In 1987, Washington State changed to a parenting plan model to try to refocus parents on the needs of the child, but to date the change has had little impact on the reality of post-separation parenting.  The changes in the United Kingdom were intended to encourage parents to focus on co-operative arrangements, but the available research indicates that these changes have not succeeded in reducing litigation concerning custody and access.  On the contrary, there has been "a dramatic increase in litigation over contact orders."[47]

Some advocates of changing terminology have also argued that the current language lacks clarity in Canada because, they allege, it has different meanings in different jurisdictions.  They believe that there is a need to clarify the language so that it is understood and employed in the same way throughout Canada.  Those opposing changing the current terminology maintain it is clear and well understood by Canadians and the legal system and any confusion that may exist can be resolved through means other than changing the terminology.

The consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada, articulated five options for public discussion:

Option 1-Keep Current Legislative Terminology

The terms custody and access would be retained.  Awareness and use of the wide range of parenting arrangements that are now available would be promoted through new and enhanced public and professional education and training programs.

Option 2-Clarify the Current Legislative Terminology:  Define Custody Broadly

The terms custody and access would be retained but clarified by being defined to include a non-exhaustive list of areas that make up custody in clear and understandable language.  The legislation would provide a framework for parents and judges to assign the various parenting responsibilities to one parent alone or to both parents jointly.  The legislation would require the courts to clearly allocate parenting responsibilities but not require the parties or the courts to use the terms custody or access.

Option 3-Clarify the Current Legislative Terminology:  Define Custody Narrowly and Introduce the New Term and Concept of Parental Responsibility

The term custody would be retained but it would be redefined narrowly to mean residence only.  It would be but one component of a new concept, parental responsibility, which would refer to all the rights and responsibilities of parents for their children.  Each parent would be responsible for the day-to-day care and decisions about the children when they are with that parent.  Responsibilities could be assigned to one parent only or to both parents jointly.

Option 4-Replace the Current Legislative Terminology:  Introduce the New Term and Concept of Parental Responsibility

The terms custody and access would be replaced with a new concept parental responsibility.  Court orders of parental responsibility would allocate specific aspects of parental responsibilities between the parents.  A specific function could be allocated to one parent alone, to the parents proportionately or to both parents jointly.

Option 5-Replace the Current Legislative Terminology:  Introduce the New Term and Concept of Shared Parenting

The terms custody and access would be replaced with a new concept shared parenting.  This shared parenting approach would not mean that children must live an equal amount of time with each parent.  The starting point for any parenting arrangement, however, would be that children would have extensive and regular interaction with both parents, and that parental rights and responsibilities, including all aspects of decision making, but not including residence, would be shared equally or nearly equally.

Respondents in the consultations voiced many of the arguments summarized above about the merits of changing the current terminology and concepts.  There was no public consensus on which of the options would be best.  Indeed, there were strong opposing views expressed on Option 1 (Keeping current terminology) and Option 5 (shared parenting).  There appeared to be support for some form of terminological change, or at least a public expectation that the legal system should encourage parents to focus their attention on the needs of the children and their responsibilities as parents rather than upon their rights as parents.[48]

The Family Law Committee was also unable to reach a consensus in favour of any one of the options.  The Committee agreed that it would not recommend Option 5 (shared parenting) for several reasons.  Parenting arrangements should be determined on the basis of the best interests of the child in the context of the particular circumstances of each child.  There should be no presumptions in law that one parenting arrangement is better than another.  The Special Joint Committee on Child Custody and Access also concluded that the legislation should not contain presumptions.  Its report, under the section entitled "No Presumptions," relates some of the debate on the issue and makes the following comment:

Presumptions in favour of joint custody or the primary caregiver have been adopted in a number of jurisdictions, but in some cases legislatures have subsequently withdrawn them after finding that they were not having the intended desirable effect.  Presumptions that any one form of parenting arrangement is going to be in the best interests of all children could obscure the significant differences between families.[49]

Shared parenting has come to imply a presumptive starting point of equal or near equal parental rights and responsibilities, including decision making.  Imposing a regime of shared decision making on parents who are not able to deal with each other without conflict can engender more conflict to the detriment of the children.  Moreover, while it is recognized that both parents can play a positive role after separation in the child's development, the parental role should not be emphasized at the expense of a clear determination of what is in the child's best interests.  It is also a term that seems to engender significant debate regarding its meaning and how it should apply.  The ambiguity of the term itself may promote conflict.

The Family Law Committee considered and weighed various factors in its assessment of the other four options.

The Family Law Committee's review of legislation across the country indicates that the argument for legislative change based on a need for clarity is not compelling.  Although the statutes vary, as discussed earlier in this report, all statutes use custody to mean, at the least, the everyday care and control of the child or, to put it another way, residence and the day-to-day decision making that goes along with it as a practical matter.  The language is workable for enforcement purposes and the legislative concept is flexible enough to permit any kind of parenting arrangement that suits a particular family.

However, a term like "parental responsibility" might not have the negative baggage that some ascribe to the current terminology.  Requiring or permitting the use of this seemingly more neutral language might encourage parents to take a more consensual approach.  Research conducted during this project suggested that terminology change might help to promote a less adversarial approach.[50]  Building into the legislation a menu of alternative parenting arrangements or parenting functions may provide guidance to parents, lawyers, other professionals, and the courts to help them develop parenting arrangements that are more sensitive to the child's needs with regards to each of the child's parents.

On the other hand, many people do not believe that the terms custody or access have negative implications or, if they do, legislative change is not necessarily required to change the language actually used to describe parenting arrangements where the parents do not want to use that language.  For some years now, parents, lawyers and judges across the country have been moving away from the language of custody and access in agreements and court orders, and they have been able to do so because the current legislative language and scheme permits this flexibility.[51]  For example, in Manitoba, the typical custody order does not take the form of sole custody with access.  More often, the order states that the parents have joint custody (meaning decision making about important matters is shared), and one parent has "primary physical care and control" and the other parent has "physical care and control as the parties may agree."[52] Furthermore, to the extent that there may be any ambiguity in the existing terminology, parents, lawyers and judges are free to fashion agreements and orders that suit the particular family.

The Family Law Committee's review of the current federal, provincial and territorial legislation has not revealed any gender bias in the legislation.  It is recognized that, while the law may be gender neutral, in a majority of cases the mother is a sole custodian or, in a joint custody arrangement, she is the primary caregiver with the father having the role of an access parent.[53] There is no reason to believe that this gender differentiation is a result of systemic bias in the Canadian courts.  It is more likely that in the vast majority of cases the parties have themselves agreed on this arrangement.  The social realities or parents' perceptions regarding parenting roles may be responsible.

Fundamentally, the Family Law Committee recognizes that any reform should be aimed at clarifying parenting responsibilities and helping parents to focus on the needs of the children.  Any terminology needs to be sufficiently flexible to respond to the range of needs and circumstances of children and their parents.  It is the workability of the arrangements rather than the terminology that matters most.[54]

In general, the Committee believes that options 2, 3 or 4 could meet these principles for reform, depending on the specific statutory language and the supports available to promote implementation and understanding of the concepts.  There was a range of support for each of these models.[55]  All of these options could clarify the decision-making responsibilities of parents and unbundle the decision-making requirements to make it clear that parental responsibilities can be shared by, or divided between, the parents in the way that meets their children's best interests.

However, any change has the potential for negative and positive effects.  The potential impact should be analyzed further, including the time required to implement these changes, so as not to disrupt family relationships unnecessarily.  If the terms custody and access are replaced in family law legislation, they may still be used in other legislation dealing with child protection or guardianship.  The impact of such a change on provincial and territorial legislation needs to be considered in this context as well.  In addition, even if the terms custody and access are replaced in relation to parents' rights and responsibilities, the term access may need to be retained to deal with third party claims, such as those of grandparents or other extended family.

Any change in the current terminology would also have to accommodate the definition of custody in The Hague Convention on the Civil Aspects of International Child Abduction so that in cases falling under the Convention, one could ascertain whether an incident of custody within the meaning of the Convention had been breached.  This would be necessary to ensure that requests for the return of abducted Canadian children are not jeopardized.

Indeed, the Family Law Committee's concerns regarding the impact of any terminology change include the need to consider what services will be required to help families adjust to any new regime and what information will need to be provided to families, legal professionals and others involved in the family justice system about any legislative change.  Changes to legislation, particularly to terminology, require time to adjust to a new way of thinking.  Parents need information about their obligations and everyone in the family justice system needs to understand the intention and effect of any legislative change.  As well, the concepts of custody and access are well established in society beyond the family justice sphere.  For example, police officers, day care workers, school officials, and health care workers refer to the concepts.  Many different groups would require information on how new terminology would apply to their work.

Experience in other jurisdictions confirms that an ongoing program of education and information is required to properly implement any legislative reform in the area of family law.[56]  Interest groups and professionals interpret changes in family laws in different ways.  The challenge is how to address the fact that there are many different messages being heard from the same words used in legislation.  There are subtleties in language and slight changes can mean differences in the message.

The Family Law Pathways Advisory Group was established by the Australian Attorney-General and Minister for Family and Community Services to find ways to improve the pathways for families through the family law system.  That group recommended an ongoing information strategy be developed to reach people at the time they need to hear the message.  Such a strategy would be aimed at helping people understand their obligations upon marriage breakdown and their continuing responsibilities to parent their children.

Consultations with parents and professionals indicate that problems in the family justice system have more to do with the lack of resources for families than with legislation.[57]  In fact, increased availability of family justice services and education programs would likely have a greater and more positive impact in changing the circumstances families experience on separation and divorce than any legislative change.[58]

If there is legislative change, it will require time and funding to implement the legislation and to assist with the appropriate service changes.

Recommendation 6

It is recommended that legislation not establish any presumptive model of parenting after separation, nor contain any language that suggests a presumptive model of parenting.  The fundamental and primary principle of determining parenting arrangements must continue to be the best interests of the child.

Recommendation 7

It is recommended that, where jurisdictions determine that their legislative terminology should be changed or clarified, any amendments to legislation should be child-centred, focus on parents' responsibilities to understand and meet their children's needs, and promote the positive and safe involvement of both parents.  It is agreed that Options 2, 3 and 4 could meet these criteria and that Option 5 does not.

Family Violence

Another major issue of concern for the public and the Family Law Committee is whether the current family law system ensures that family violence issues are appropriately addressed in making determinations on what is in the best interests of the child.  Provincial and territorial legislation varies in the degree to which it deals with this issue.  The Divorce Act has been criticized for lack of clarity on how the courts are to treat allegations or findings of family violence, and for how it balances these issues with rules relating to maximum contact.  The current regime has been criticized as placing over-emphasis on contact, sometimes at the risk of the child.  A child's needs must be considered in the overall context of that child's life and circumstances.  Making one criterion more important than another seems contrary to a child-centred approach.[59]

The consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada, raised these issues.  Although there were a variety of responses, it would seem that a significant number of respondents recognize that family violence can have serious consequences for children, as well as for their caregivers, and that legislation may require greater clarity to ensure that the safety of children is not compromised.  It is also clear that participants in the consultation recognized the need for a strong network of services to support legislative measures.[60]

The options for reform range from including a general statement of principle in the legislation to indicate that children deserve to develop in a healthy environment free from emotional, physical and psychological harm, to including specific presumptions against contact where family violence has been shown to be a factor.  Many are concerned, however, that any change in legislative standards can have negative results in terms of either deterring parties from raising family violence concerns or in creating incentives to raise family violence when the circumstances do not warrant it.

A related issue is the concern that has been expressed that some parents make false allegations of child abuse against the other parent in order to gain an advantage in custody litigation.  Research has shown that there are differing perceptions regarding this issue and that the actual level of false allegations seems to be relatively low.[61]  However, the lack of trust and lack of adequate communication between parties may lead to misunderstandings or misinterpretations leading to increased conflict and more distrust.  Again, the difficulty lies in achieving the right balance to ensure that the child's safety is not compromised and that the child's contact with both parents is not limited without sufficient reason.

The Family Law Committee acknowledges the serious negative impact that family violence can have on children's sense of security, self-esteem, and future orientation to relationships.  This negative effect exists whether the children are the direct or indirect victims of the violence.  However, each case must still be considered based on the past, current and future potential for violence or negative implications of violence on relationships.  We recognize that violence can occur in isolated instances or may be part of an ongoing pattern of conduct.  The implications of the particular risks or negative implications of family violence need to be carefully considered in each case where this factor is raised.  The pre-eminent purpose of keeping children safe and supporting their well-being needs to be recognized throughout decision making.  This means that parents and courts should ensure that their decisions do not create situations that place the child at risk.

Recommendation 8

It is recommended that, with a view to ensuring that no court orders are made which may result in prejudice to the safety of children and place them at risk,

(a)   there be no legislative presumptions regarding the degree of contact a child has with his or her parents; and

(b)   legislative criteria defining best interests include, as factors to be considered,

Recommendation 9

It is recommended that governments work to strengthen supports to families exposed to family violence, including crisis counselling programs and counselling programs for children exposed to family violence.

High-Conflict Relationships

At present, neither the Divorce Act nor provincial and territorial legislation contain provisions specifically addressing high-conflict relationships.  It has been suggested that legislative measures are needed to deal specifically with those cases where a parent or child alleges they are at risk as a result of high conflict.  There are differing views on the "streaming" of violent or high-conflict cases.[62]  One view holds that the fact that the case is before the court means that it warrants judicial attention, because there may be undisclosed issues of power imbalance in the family.  Another view holds that to force all high-conflict cases, such as those involving family violence, into the court stream, and away from other dispute resolution techniques is paternalistic and denies the autonomy of the victim.[63]

The research seems to show that only about ten to fifteen percent of all couples exhibit a high level of legal and interpersonal conflict.[64]  Families may cycle in and out of conflict depending on factors such as financial stress, new relationships, and problems with childcare and development.  Research shows that the level and intensity of parental conflict is a very important factor in children's adjustment after separation or divorce.  Parents caught in the cycle of conflict may not recognize the harm being generated.  Parents who co-operate after they separate increase the chances that their children will have close relationships with both of them and will cope successfully with the separation or divorce.  Parental conflict and lack of co-operation have a negative effect on children's adjustment after separation and divorce.  When parents' interpersonal struggles take centre stage, children's needs are not given adequate attention.  High-conflict parents may have difficulty seeing their children's needs as separate from their own and this interferes with their ability to learn how to effectively co-parent or communicate.[65]

The research suggests that "there is no generally accepted definition of what constitutes a high-conflict divorce, although there is acknowledgement that these situations differ from the normal amount of upset associated with marital separation and divorce."[66]  Most separating couples go through a period of transition that includes emotional upset regarding the end of their relationship.  However, the reason some separating and separated couples become "locked into long, bitter and expensive battles over custody, access and support, while the majority of separating and divorcing families are able to avoid such protracted disputes, remains unclear."[67]

Research indicates that high-conflict situations may cause serious problems for children and parents.  Children experience fear, sadness, powerlessness, guilt and a sense of divided loyalty.  Parents experience similar emotions and report that a range of problems occur in high-conflict situations, including physical threats and assaults, access denial, restrictions of access to extended family members, withholding of support payments, and refusing access to information for the other parent.  Mental health workers and lawyers also describe high-conflict situations as being problematic, involving anger and powerlessness, domestic violence and physical, emotional and verbal abuse.  Lawyers and judges often describe high-conflict cases in terms of increased court time and repeated litigation.[68]

Separation and divorce cases marked by high conflict seem to share some characteristics.  These include the emotional difficulties experienced by the parents and children in dealing with the high levels of conflict; related problems that arise out of the parents' conflict such as the use of false allegations of abuse or access denial; and the simple reality that high-conflict parents often litigate more than do other less conflicted couples, resulting in their using more court time and resources as well as their own time and resources on settling their dispute.  In these kinds of situations, it is difficult to believe that the best interests of the children are being served.[69]

While the public consultations raised this issue and invited comments on an appropriate legislative or service response, it appears clear that-family violence aside-it would be difficult to sufficiently define high-conflict cases in a way that would lend itself to a legislative response or criteria.  The solution to high-conflict cases lies in supporting parents to focus on their children's needs, improving their communication and conflict resolution skills, and support services or approaches to better stream and screen high-conflict cases in order to intervene earlier and more effectively.[70]  For example, Manitoba's parent education program, For the Sake of the Children, runs separate seminars for parents experiencing higher conflict.  These seminars focus on safe, low-to-no-contact ways to parent after separation.  These issues will be addressed further in Section G of this report, "Service Options and Responses."

Recommendation 10

It is recommended that high-conflict cases be addressed through a mixture of services and procedural supports to minimize the negative impact of conflict on children and families.

Addressing Children's Perspectives

To determine the best interests of the children, decision makers need to hear the children's perspectives on the way their parents propose to care for them.  Canada is party to the United Nations Convention on the Rights of the Child.  That Convention says:

State parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the view of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

There are varying opinions about when and how to best hear children's views.[71]  The desirability of giving the child a voice in the decision-making process must be balanced against the need to shield the child from parental conflict and prevent the child from becoming embroiled in it.  Children should not be put in the position of having to choose one parent over another.

While the Divorce Act has no provisions expressly mandating the court to consider the children's wishes, most provincial and territorial legislation directs the court to consider the views and preferences of the child, usually as part of a best interests test.[72]  The law in Canada generally recognizes that the weight to be given to the children's wishes increases with the age and maturity of the child.

In some situations, courts have appointed a representative for the child during a proceeding that will determine the child's custody or access.  In Ontario, the Office of the Children's Lawyer represents the child if the case meets the criteria defined by that office.  In Manitoba, until recently, Legal Aid funded appointments of counsel by the court to act as amicus curiae.  The role of the amicus was to advise the court as to the child's best interests; the amicus would relay the child's expressed wishes, but would not take instructions from the child.  Currently, Manitoba's Family Conciliation Office is operating a pilot project, called the Brief Consultation Service, whereby the child's voice may be heard.  A counsellor is available to the court to meet with parents and see the child within a short time.  The counsellor then provides a brief verbal or written report to the court, which may include information respecting the wishes or concerns of the child.

Expert reports, such as those provided by the Manitoba service, are the most common way the child's views are expressed to the court.  The expert, such as a social worker, interviews the child and communicates to the court, often as part of a custody and access assessment report, the views the child has expressed.  In rare circumstances, the judge may interview children.[73]

Research conducted during the Family Law Committee project indicates that currently children generally have little opportunity to participate in custody and access proceedings that affect them.  The research looks at a range of possible responses from a more direct role with counsel or advocates to development of service supports for children.[74]

Youth participating in the consultations Putting Children's Interests First were enthusiastic about being asked their views.  There were six consistent themes brought out during the workshops:  parental conflict; parental abandonment or lack of interest in the child; voice of the child; availability, responsiveness and accountability of professionals; child support; and concern about the future.  The vast majority of youth wanted services and divorce legislation to provide a way for their voice to be heard when decisions were made, but there was clear concern that they not be placed in the middle of the dispute.[75]

The Special Joint Committee on Child Custody and Access specifically recognized the need for children to be heard when parenting decisions affecting them are being made, through a professional or other representative, including legal counsel where required.[76]

As the premise for the work of the Family Law Committee is to take a child-centred approach to custody and access reform, addressing the needs of children to have their perspectives heard in formal or informal forums and by appropriate processes is recognized as a matter of priority.

Recommendation 11

It is recommended that each jurisdiction review its legislation, procedures and services to ensure:

Meeting Custody and Access Responsibilities

Introduction

Parents may have rights of custody or access by operation of law, or pursuant to a written agreement or a court order.  Third parties, such as grandparents and others, may also have rights of custody or access pursuant to an order or agreement.  When a right of custody or access is denied, there is a wide range of legal remedies and options available to enforce the right in question.[77]  Some options are only available if a court order exists; others only apply to children of certain ages or in inter-jurisdictional cases.  Options range from informal negotiations between the parties and/or their legal counsel, to mediation, to invoking the civil justice system and, in some cases, the laying of criminal charges.  The test applied by courts across Canada in determining parenting arrangements for children and access arrangements respecting children is the best interests of the child.  Depending on the mechanism used to enforce a custody or access right, the test applied by the court may be very different or involve the best interests of children in the general, rather than the specific, sense (e.g., as is the case in proceedings pursuant to The Hague Convention on the Civil Aspects of International Child Abduction).

Although a considerable amount of attention is paid to situations where one parent alleges that the other parent is wrongfully denying access as ordered by a court, there are also situations where parents fail to exercise access as provided in orders.  Difficulties may also arise respecting enforcement of a right of custody, whether or not the situation amounts to a parental child abduction.[78]

Access enforcement is not an easy problem to resolve as allegations range from serious denial and abduction, to frustration with denial of contact or non-exercise of access at expected times.  The actual level and nature of access problems are not clear.  Identifying effective solutions is also difficult, given the wide range of circumstances in each case, and given that decisions must be made in the best interests of the child.  Rather than focussing on punitive responses, strategies may need to focus on preventing conflict or misunderstandings that lead to access denial or non-exercise of access.[79]

Although the Family Law Committee has identified a number of areas where improvements could be made to child custody and access enforcement legislation, and to legislation implementing The Hague Convention on the Civil Aspects of International Child Abduction, more work is needed to explore further options to address these difficult cases, to analyze work currently underway internationally, including a recently released British report,[80] and to provide Deputy Ministers with refined recommendations.

Recommendation 12

It is recommended that, recognizing the breadth and complexity of the issues involved in child custody and access enforcement and parental child abduction cases, further detailed work be undertaken.

Recognizing work on specific issues and services is still needed, the following is an explanation of the current remedies.[81]

Non-Judicial Remedies

In less complex or entrenched cases, parents may benefit from trying to mediate or negotiate resolutions to access difficulties.  For example, a dispute over the timing of access, or rescheduling of access visits, may be appropriately dealt with through mediation or negotiation through the parties' counsel.  Parent information programs offered early in the process (ideally prior to any court orders or mediated agreements being reached) may be of assistance to many families in forestalling future custody and access enforcement issues.  These programs can greatly assist parents in understanding the emotional needs of their children at various stages of development and how those needs change over time and may require increased flexibility with regard to access and parenting arrangements.

Civil Contempt

Where a right of custody or access is contained in an order of the court, the option of civil contempt may be available (inferior courts do not have inherent jurisdiction to find an individual in contempt of an order unless contempt occurs in court proper.)  The rules of court may provide penalties for individuals found in contempt.  Civil child custody and access enforcement legislation may also contain a range of enforcement provisions.

In contempt applications, a number of principles are of critical importance:

Courts have held that a contempt proceeding should be a last resort where there are other means to ensure compliance.  Once an individual has been found in contempt of an access order, among the orders that have been pronounced are periods of incarceration, suspended sentences, fines, stays of ongoing litigation, compensatory access, supervised access and suspension of maintenance or other payments pending resumption of access.

For contempt to be a viable option, the access order must be clear on its face.  This generally means that the order must be one for specified periods of access, with prescribed days and times.  An order providing for "reasonable access" is not generally one that could be used to seek a finding of civil contempt.  The party denied access would be more likely to ask that the court specify periods of access.

Civil Custody and Access Enforcement Legislation

Some provincial and territorial jurisdictions across Canada have child custody enforcement legislation providing a variety of means to ensure compliance with custody or access orders.  This legislation can be invoked where an order is being breached in the province in question (e.g. if a child is being abducted to or within, or is in the process of being abducted from the province in question or access is denied in that province).

Child custody and access enforcement legislation applies to court orders of custody or access granted by courts of the province in question, as well as the courts or tribunals outside the province or territory with jurisdiction to grant custody orders.  Generally speaking, these acts do not enable persons with custody or access rights pursuant to written agreements, or by operation of law, to invoke their provisions.  In most jurisdictions, child custody enforcement legislation can be invoked without the existence of formal reciprocal arrangements with the other jurisdiction, unlike reciprocal enforcement of maintenance orders legislation.

These acts limit the court's ability to substitute its own custody and access order to situations where a child does not have a significant connection to the jurisdiction in which the original order was granted, providing the child does have such a connection to the province in question, all of the parties are now habitually resident in the province or the child would suffer serious harm if returned to the custodial parent named in the order (or if the access parent was allowed contact).

Enforcement orders under these acts are binding in the province in which they are granted, which means that in a situation where a child is abducted from one province to another, and then to a third, proceedings may need to be taken in more than one jurisdiction.

These acts contain a wide range of remedies that can be used to enforce an access or custody order being breached within the province in question.  Remedies may include non-molestation orders, the posting of a bond or the signing of a recognizance, authorization for a person to apprehend and deliver a child to another person, transfer of property or maintenance payments to a trustee and denial of passports or other documents.  Some remedies may only apply if the order contains a non-removal clause.

In some jurisdictions child custody enforcement legislation has been used to implement The Hague Convention on the Civil Aspects of International Child Abduction.

The Hague Convention on the Civil Aspects of International Child Abduction

The Hague Convention on the Civil Aspects of International Child Abduction was concluded in October of 1980.  Canada was one of the original four signatory states.  The Convention has been implemented in all Canadian provinces and territories.  Each province and territory has a Central Authority charged with certain obligations pursuant to the terms of the Convention.  There is also a federal Central Authority.

The Hague Convention governs international child abduction situations, not those of an inter-provincial/territorial nature.  The Convention deals with issues of jurisdiction and provides, with limited exceptions, that the appropriate courts to deal with issues relating to custody are those of the child's habitual residence before his or her removal.  Like provincial child custody and access enforcement legislation, the Hague Convention sets forth a framework for determining the most appropriate forum to resolve custody disputes and in that sense is concerned with the best interests of children.  The Convention is based on the principle that the best interests of children are met by protecting them from abduction and by securing respect for custody rights.  It does not deal with the merits of competing claims and the best interests of children in the context of resolving those claims.

The Hague Convention applies to children under the age of 16 years.  It is applicable to situations where a right of custody by operation of law or pursuant to a court order has been breached.  The Supreme Court of Canada has considered the Hague Convention in two cases.[82]  The Court indicated that removal of a child in contravention of a non-removal clause in an interim order constituted "wrongful removal" within the meaning of the Convention, but also indicated that this would not necessarily be so in the case of a final custody order.

Although Article 21 of the Hague Convention allows an application to be made to a Central Authority for assistance in establishing or enforcing a right of access, the Convention is not clear as to the nature of the international obligation in this regard.  Accordingly, many countries, including most Canadian Central Authorities, take the view that they will not become actively involved in access establishment and enforcement cases, although Legal Aid assistance may be available for these purposes in some jurisdictions.  The Fourth Special Commission revisiting the operation of the Convention in 2001 in The Hague noted that access issues were of critical importance.  It has been suggested that a special meeting be held in The Hague to further discuss this important area.

Criminal Sanctions

In January 1983, specific provisions in the Criminal Code of Canada came into effect making parental child abduction a criminal offence.  Sections 282 and 283 of the Criminal Code prohibit parental child abductions in situations where there is a custody order made by a Canadian court and there is no such custody order, respectively.  Section 283 therefore applies to situations where parents continue to have joint custody of their child by operation of law, where there is a written agreement, where there is a foreign custody order, or where the abducting parent did not believe or know there was a valid custody order.  Ministers Responsible for Justice first approved Parental Child Abduction Charging Guidelines in 1989.  Updated Revised Parental Child Abduction Guidelines were approved by Ministers at their October 1998 meeting.  At the time that the charging guidelines were first developed, the Family Law Committee recommended that police officers should have direct access to designated counsel with experience in the area of family law within their jurisdiction and, in particular, telephone access to these counsel outside of regular working hours.

Not every case in which a custody or access order is breached amounts to parental child abduction.  Depending on the legislation or statute pursuant to which the custody order or access order was granted, there may be other charges that can be considered.

Non-exercise of Access

Non-exercise of access can be as damaging to a child as denial of access.  Several provinces have legislation under which a custodial parent may seek financial compensation in the event that the other parent fails to exercise access as contemplated in the original order.[83]

Jurisdictional Provisions in Custody and Access Legislation

Some but not all provincial or territorial legislation clearly sets forth jurisdictional rules for the determination of custody and access cases based on the habitual residence of the child, with certain consent and safety-based exceptions.  An example of a consent exception would be where the parents agree on a court of competent jurisdiction, even if it is not in the province where the child habitually resides.  An example of a safety-based exception would be where the court has concerns that failing to exercise jurisdiction would place the child at risk.  Other provinces and territories do not have such provisions, but do have custody enforcement legislation that contains similar tests respecting recognition of an ex juris order (and that court's ability to assume jurisdiction and substitute its own custody or access order).

The Hague Convention on the Civil Aspects of International Child Abduction also deals with issues of jurisdiction and provides, with limited exceptions, that the appropriate courts to deal with issues relating to custody are those of the child's habitual residence before his or her removal.

The Divorce Act provides that the courts of a province or territory where either spouse or former spouse is ordinarily resident have jurisdiction to deal with custody issues.  The court may transfer a custody action to a court in another jurisdiction where "the child…in respect of whom the order is sought is most substantially connected with another province,"[84] but it is not required to do so.  This jurisdictional approach differs significantly from provincial custody and custody enforcement legislation and from Canada's international obligations under the Hague Convention.  It has also resulted in the custody of children habitually resident in one province being determined in the courts of another province with which they have a more tenuous or recent connection.

Recommendation 13

It is recommended that the Divorce Act and provincial and territorial legislation provide that the courts of the province or territory of the child's habitual residence have jurisdiction to determine custody and access, subject to exceptions based on consent or safety considerations, and taking into consideration, as applicable:

G. SERVICE OPTIONS AND RESPONSES

The Family Law Committee has been asked to consider both legislative and service responses to the problems facing children when their parents separate.  The provincial and territorial experience has been that services are critical to support the policy and legislative intent to help families deal with the difficulties of separation in the healthiest way for the parents and their children.  A focus on legislative issues in isolation from service and practice needs would fall short of addressing the complex needs of families.

The program of research in custody and access supports this position.  Practically every research report produced recommends programs and services for parents and children.[85]  The public demand for a wide range of service supports to families was clear in the responses to the Putting Children's Interests First consultations.[86]  As the report on the consultations stated:

In response to a question about what factors enable "good parenting," respondents identified a wide variety of issues relating to the parents themselves and their relationship, the support offered to both parents by the legal system, and the various support services in place.

Respondents stressed the need for improved educational services (for parents as well as the legal profession), support services (such as supervised access centres or "parenting co-ordinators") and legal aid services.  To improve the effectiveness of services, respondents suggested that services be offered in a more co-ordinated, timely and accessible manner.[87]

Moreover, it is clear from experiences in other jurisdictions that legislative change creates an increased demand for services, and those rates of litigation may increase concomitantly with the increasing demand for services.  Change in the law may uncover an untapped dissatisfaction with the family law system and thereby place increased demand on all components of the system at once.  This increased demand may be sustained over the medium term (five to ten years).

For example, the creation and expansion of supervised access facilities accompanied legislative changes in Australia.  These services have proven to be a necessary part of the new system which promotes a child's "right of contact" with both parents.  There is now increased pressure to expand the supervised access services to more locations within the country.  Court applications for residence and contact more than doubled in the year following changes in the legislation, and remained relatively constant at that increased rate over the four years following the change.  Eighty new magistrates were appointed to deal with the increased demand for court adjudication.[88]

Recognizing the shared jurisdiction in family lawand shared concern with the welfare of Canadian children and families experiencing divorce and separation, the Family Law Committee believes that there is a role for provinces, territories and the federal government to support service delivery.

Five major themes for service development were presented to Ministers when they met in September 2001.  They are public and professional information and education, dispute resolution, enforcement, family legal aid, and completion of family court models.  These service responses require action not just by government, but also by individuals, communities, and professionals within an integrated framework.  These sectors working together can provide an integrated response to the evolving needs of children and families going through family transition.

Public and Professional Information and Education

The goals of public and professional information and education programs and services are to help families cope with the emotional trauma of separation, to enable parents to make informed choices about parenting and to help parents co-parent effectively.  This is done by providing information to families, and to professionals working with them, on legal issues, child development, dispute resolution options, methods of communication and resources, and by teaching parents skills and techniques to improve their co-parenting abilities.  Separating and divorcing parents need information and may need help to understand the types of arrangements they can make for the care of their children, to understand what the impact of the arrangements will be on their children, and to understand what they and their children are experiencing.

Information can help parents and children understand the implications of divorce and separation, their options, and ways to develop positive relationships that sustain new family relationships.  Information is needed at a time of crisis so that parents can focus on immediate decisions and avoid generating unnecessary conflict.  During the divorce process information is important to help ensure that all options are considered and conflict is minimized.  After separation, information can help sustain arrangements and foster co-operation and positive interactions between parents and between parents and children.  Indeed, families on the brink of separation may still withstand separation with appropriate information and support.

Parent Information

A major response of participants in the national consultations, Putting Children's Interests First, was to call for increased access to timely information in a variety of forms.  Separated and separating parents need information about:

In search of this information, parents may speak with friends, family members, counsellors, doctors, religious leaders, teachers, childcare workers or other community members.  Often, friends, relatives or community services lack the information they need, or give incorrect information, and parents may receive different and at times conflicting advice from these community sources.  Many parents turn to lawyers for this information.  Lawyers in private practice must charge clients for their time spent in giving this information.  Since legal expertise is not required to provide basic information, this is not always the most efficient way to use a lawyer.  In addition, some lawyers may not have all the necessary information.  Much of the needed information is provided in a variety of forms by government and community agencies.[90]

The federal, provincial and territorial governments have all been active in recent years in developing and implementing various services and programs in this area.  The following are examples of some of the ways family law information can be made more accessible to the public, resources permitting:

Some jurisdictions provide information to the public through information centres where the public can attend and speak with an individual and obtain print information.  For example, Ontario's Family Law Information Centres, which are located in the court building in most court districts, including all Unified Family Court sites, provide information and referral, and other assistance.  Court personnel provide information about court procedure, including court forms, and a lawyer provides summary legal advice.  Some information centres in other provinces offer other services as well.  These are discussed in more detail below.

Recommendation 14

It is recommended that information on existing and new laws and services be disseminated to the public as widely as resources permit, and through a variety of communication modes, to be accessible to all families with children.

Parent Information and Education Programs

Parent education and information programs teach parents how to promote their children's best interests through co-operation and consultation when it is safe to do so.  The aim of these programs is to help parents understand the demands and challenges of parenting after separation and divorce, to suggest new ways to communicate and resolve day-to-day disputes and to suggest appropriate alternatives to the formal court process to settle any issues they may have.  If parents learn basic conflict resolution skills, these skills can help them to lessen conflict or dissension and use positive conflict resolution approaches with their children.  The programs provide parents with a basis for decision making and reduce conflict, frustration, confusion and costs to parents and to the legal system.

Parent education and information programs can play a key role in building awareness and skills for people experiencing relationship breakdown.  These programs, whether voluntary or mandatory, should target people before they begin litigation, and should contain clear guidelines to ensure the streaming of victims of abuse to the court system.  Parent education programs should contain a component about the increased vulnerability of victims of domestic violence and abuse at the time of separation, and should offer an expedited process for accessing the court in these situations.

Currently in Canada, most government-funded parent education programs are connected to a court site, either through intake or delivery.  For example, in Newfoundland and Labrador, the Unified Family Court in St. John's offers a parent education program called Parents Are Forever for parents experiencing separation and divorce.  It is a twelve-hour skills-building course that provides information on the effects of separation and divorce on children and teaches communication and negotiation techniques aimed at reducing parental conflict.

The Alberta Parenting After Separation Seminars provide separating or divorcing parents with information about the divorce process, its effect on their children, techniques for improving communication, legal issues, and encourages the use of mediation and parenting plans.  It is mandatory for parents who wish to access the courts, with exceptions for family violence situations.  An evaluation of the program reported that a significant majority of attendees indicated that they thought the information would help them deal with their children and that the information would help them deal with the other parent in the future.  There was also evidence that the program helped to reduce the level of conflict between the parents.[91]

The evaluation of Manitoba's parent education program, For the Sake of the Children, showed that the program had a positive effect on parents' abilities to cope with separation.  The evaluation report stated:

(I)t is significant that most parents felt they were dealing more effectively with their children, the other parent and their own feelings and reactions at follow-up.  Moreover, most attributed the program as having positively influenced these changes.[92]

The Special Joint Committee on Child Custody and Access recommended that all parents seeking child care orders be required to participate in an education program, and that certification of such attendance would be required before parents would be able to proceed with their application for a parenting order.[93]  Some jurisdictions, such as Saskatchewan and Alberta, already have such a requirement in legislation or court rules.[94]  British Columbia operated a mandatory Parenting After Separation (PAS) program on a pilot basis at two provincial court locations.  The evaluation results indicated that parents who attended were highly satisfied with the information they received, and that they made less use of the court process than did parents in control sites where the program did not operate.[95]  British Columbia now requires attendance at a PAS session in ten court locations.

Some jurisdictions have also invested in programs specifically targeted to helping children understand the dynamics of divorce and separation.  In Saskatchewan, programs for three different age groups of children were developed and are being delivered by community-based organizations to help children understand that the divorce or separation is not their fault, learn how to distance themselves from the conflict between the parents, and learn how to communicate better with their parents on what they are feeling or experiencing.  Such programs are seen as very beneficial in reducing risk factors for children.[96]

Examples of other education and information programs include education for families in transition to help newly created or blended families adjust to new family dynamics, and self-help or targeted materials to help parents understand and make decisions on parenting issues through parenting plans or agreement booklets.[97]

Recommendation 15

It is recommended that governments support parent education-mandatory or voluntary-which is broadly accessible and meets linguistic, cultural, geographic, and general parenting, legal, and process information needs.

Professional Information and Education

Lawyers, social workers and other professionals involved with the family and its separation issues as advocates, mediators or counsellors are key sources of information for parents.  Professionals helping families deal with family breakdown and parenting issues need to have a solid understanding of the emotional and legal issues that families experience.

Professionals who are better equipped with information and understanding of the issues can help parents make better decisions and reduce the overall level of conflict, confusion and cost.  Professional organizations should consider requiring members to keep abreast of the key issues, the wider social dynamics that affect families, and the resources and services available to assist separating and divorcing families, and providing training to facilitate this.[98]  Research supports the view that people working with separating and divorcing couples, and the families they serve, would benefit from more training and education.[99]  Similarly, consultations with the public support increased training and the expansion of services to assist families in transition.[100]

In addition, there are professionals in a wide variety of front-line government and community agencies, whose primary function may be other programs, for example, crisis shelters, who are in regular contact with separating and separated families.  They can help parents by providing basic information and by making referrals for appropriate assistance.  It is important that these agencies have access to information that they can then share with their clients, and that the workers have training opportunities so that they can better assist their clients.  Governments can provide basic information that can be reformatted or included in publications of these agencies.  Standard workbooks or manuals and training materials could also be developed for use by these agencies.

Some parents have indicated that they feel that the lawyers rather than the parties are directing the dispute or they lack confidence in their ability to instruct counsel.  A family law case involving children is unlike most other areas of advocacy in that all parties to the matter are to make decisions based on the best interests of the child.  This may conflict with the lawyer's traditional adversarial role to advocate the client's position.  Lawyers, as officers of the court that is required to render decisions on the basis of the best interests of the child, need to take this into consideration in their practice.

Recommendation 16

It is recommended that support be given to professionals working with families during and after separation and divorce, such as lawyers, social workers, and psychologists, to engage in continuing education and training in child custody and support law, family violence issues, the dynamics of family separation and divorce and the effects on children.  Professional organizations should be encouraged and supported to facilitate professional development in this area, and to consider certification approaches incorporating professional development in this area.

Recommendation 17

It is recommended that jurisdictions work with law societies and the bar associations:

Providing Information to the Public on Government Initiatives

Canadian jurisdictions have developed different approaches and levels of support to provide education and information.  Jurisdictions could benefit from building a more common material base, relying on "best practices," and reducing development costs by sharing experiences.  The provinces and territories have an array of services.  They have developed an inventory of services, An Inventory of Government-Based Services That Support the Making and Enforcement of Custody and Access Decisions, which is available on the Department of Justice Canada website.[101]  This inventory should be maintained and updated periodically.

Recommendation 18

It is recommended that the Inventory of Government-Based Services That Support the Making and Enforcement of Custody and Access Decisions should be maintained and updated periodically.

As well, it would be beneficial if governments could reach a common understanding on how to better disseminate information, and who could and should do so.  This would assist in reducing the confusion for the public between the provisions of the various federal, provincial and territorial laws and services.

Dispute Resolution

Resolving separation and divorce disputes, particularly regarding children, can be distressing to the parents and the children.  Each family experiences different and varying levels of conflict depending on their circumstances.  Situations that were relatively stable can become volatile or conflictual due to a parent forming a new relationship, lingering relationship issues, changing needs of children, or a parent wanting to move for employment or education reasons.

The court process can be very lengthy, leave important issues unresolved for too long and cause more conflict between the parents.  The trial process is not always sensitive to the complex issues that affect children.  Consensual agreements are more likely to endure than decisions made by a judge after a contested court hearing.  Alternate dispute resolution processes can be used to support and facilitate positive conflict resolution approaches.  Access to appropriate and timely dispute resolution options, either as part of the court process or independent of it, can allow parties to narrow the issues in dispute, resolve issues more quickly, and minimize parental conflict, emotional hurt and financial costs.

Parents may become frustrated by the lack of access to legal services and their inability to resolve initial or outstanding problems relating to parenting responsibilities.  This frustration may lead to parents attempting to represent themselves in court proceedings at an emotional and financial cost to themselves, their families and the administration of justice.  Alternatively, parents may decide to act unilaterally and aggravate an already deeply stressful situation by engaging in child abduction or failing to pay maintenance to attempt to force what they believe to be a more "equitable" arrangement.  Again, this leads to increased enforcement costs for the state and emotional and financial costs for the family.

Sadly, some parents may simply decide to try to leave the frustration behind and either fall into a pattern of disrespecting the terms of the order or agreement they feel is unsatisfactory, or walk away from the child's life.  Parents who have become disengaged from their children present complex reasons for their loss of contact with their children including discouragement because of access denial, practical difficulties of distance or work schedule, or an early pattern of no contact.[102]  As well, parents often absent themselves due to concern that ongoing conflict will be harmful to the children.  Obviously, this distancing and dissatisfaction can have a negative impact on parent-child relationships and also fails to provide an opportunity to demonstrate or learn ways to deal with conflict effectively.

A variety of mechanisms exist to help families resolve disputes outside court.  Lawyers play a major role in resolving disputes through traditional legal negotiation.  In many cases however, the settlement comes only after contested interim court proceedings and other steps in the litigation process, too late in the process to avoid the conflict and emotional and financial costs of the adversarial system.  More recently, some lawyers have been engaging in collaborative family law, in which lawyers for both parties are retained exclusively to help the parties reach an agreement and cannot represent the parties in any court proceedings.

Mediation, where a neutral third party helps parents reach an agreement, can be a very effective tool for two parents of relatively equal bargaining strength.  The mediator, who can be a lawyer, social worker or other professional trained in mediation, facilitates discussion and helps them work out their plans for parenting their children after separation.  Parents who participate in mediation still need the help and advice of a lawyer acting in the lawyer's traditional role as an advocate.  Mediation is available in all the provinces and territories and there is an increasing emphasis on it throughout Canada.[103]

A critical aspect of mediation is to ensure that power imbalances are recognized and mitigated and that the safety of the participants is maintained as a primary consideration.[104]  Certainly, these concerns arise in situations where there is a history of family violence, but there may be other circumstances where power imbalances do not allow the parties to meet on an equal basis.  In many cases, those involved in regulating or promoting mediation have established processes to screen out cases where mediation would not be appropriate.  Certainly, the Special Joint Committee on Child Custody and Access, while supporting mediation generally, recognized that screening individuals for family violence issues and assuring the safety of all parties are key to the timing and use of mediation.[105]

Perhaps the strongest and most comprehensive efforts to encourage mediation are being made in Quebec, where parents must attend a mediation-information session before their hearing on custody, access or child support.  Mediation may be voluntary or ordered by the court, which may direct parties to mediation at any point in the proceedings.  The service is free for up to six sessions, each of which lasts about one hour and fifteen minutes.[106]

Manitoba offers a Comprehensive Co-mediation Service where two mediators, one of whom is a lawyer and the other is a family relations specialist, assist parents in coming to an agreement on all issues in dispute.  In the evaluation of the pilot project that preceded the implementation of the current program, eighty-one percent of the respondents said that the most important benefit was that mediation addressed all issues (both child related and financial) requiring a resolution.  Over the course of the pilot project, agreement on all issues was reached in 52 percent of cases, and agreement on some or most issues was reached in a further 31.5 percent of cases.[107] The pilot project also had an internship component to facilitate the accreditation of professionals (lawyers and family relations specialists) from the private sector.

While mediation should be encouraged in appropriate cases, it is not recommended that mediation be mandatory.  Such an approach is inconsistent with the basic premise of mediation as voluntary, consensus-based decision making.  It is also not consistent with a focus on child-centred decision making, could put the child or a parent at risk, and, where both parents are not comfortable with the mediation process, it may itself generate, rather than reduce, conflict.

Recommendation 19

It is recommended that:

Court proceedings to resolve disputes over parenting arrangements are still necessary in many cases, for example, where there is family violence and mediation is inappropriate, or where mediation or other alternate dispute resolution methods have been tried and failed.  However, modifications can be made to the traditional litigation model to encourage settlement of some or all issues early in the court process, and to manage cases more efficiently to reduce costs, conflict and delays.

Case managementprograms support early settlement of disputes by reducing unnecessary delay and expense by having judges and others actively manage the court process.  Experienced court personnel or judges focus the parents and their lawyers on the issues that are truly in dispute, and encourage parents to come to an agreement on other issues.  This may involve pre-trial conferences with the judge or mini-trials, where a judge offers parents his or her assessment of the likely outcome of a trial.  Another aim of case management is to ensure that those cases that do go to full trial proceed as efficiently as possible.

For example, in Manitoba's case management system, case conferences may be set in a number of ways.  Parents may request a case conference date or the court may schedule one on the occurrence of certain triggering events, such as a request for a contested motion date.  Parents must attend all case conferences unless excused by the case conference judge.  The case conference judge assigned to preside at the first case conference will remain available to assist parents and their lawyers in managing the case until it is finished.

In Saskatchewan, prior to proceeding to trial, the parties and their lawyers must meet with a judge in a pre-trial conference.  The process is relatively informal and in most communities can take place within eight weeks from when the parties have the necessary information prepared.  The focus of the conference is on settlement.  A judge is there to advise lawyers and parents on legal issues.  A settlement can be quickly converted into a judgment.  A majority of cases are settled during this pre-trial process.

Some provinces and territories have early settlement programs or procedures, such as allowing judges to direct parents to case management events and to adjourn a case to allow parents to try another method of dispute resolution.  British Columbia has a pilot project in several provincial court registries that requires parties involved in custody, access guardianship or support proceedings to meet separately with a family justice counsellor to go over their options prior to their first court appearance.  Urgent cases can be heard immediately by a judge.

In some situations, where there is consent or the order is unopposed, the court will grant custody, access and support orders without the need for a court hearing.  In Quebec, the Special Registrar can approve any agreement between parties that provides a full settlement on custody and support issues.  The Registrar can hear the parties, separately if necessary, and in the presence of counsel, to determine if the agreement protects the best interests of the children and consent was not given under duress.  If not, the Registrar may refer the matter to a judge.  The intent of this system is "to simplify the procedure and accelerate the processing of cases involving child custody and support."[108]

Independent custody and access assessments are also useful in resolving disputes.  They can help parents focus on the needs of the child and reduce the level of conflict.  They may also induce settlement because many parents are prepared to accept the recommendations of a neutral third party and because parents may feel further litigation would be unproductive as the courts tend to give such reports a great deal of weight.  Research indicates that these services help parents reach settlement in the majority of cases.[109]  The investigations of the Children's Lawyer of Ontario have similar beneficial effects.[110]

In Manitoba, two pilot projects are underway to assist the court and parents to address child-related issues in a timely fashion.  One is the Brief Consultation Service whereby a counsellor is available to the court to meet with parents and see the child within a short time.  The counsellor then provides a brief written or verbal report to the court that may include information respecting the wishes or concerns of the child.  The other pilot project involves the preparation of timely "focussed assessments" which replace traditional comprehensive family assessments in situations involving resolution of a single issue.

Another way jurisdictions have attempted to support and assist separating and separated parents in resolving parenting issues, either prior to court proceedings or after they have begun, is by providing multiple services through one agency or facility.  Parents have better access to information and dispute resolution services when these services are located in one place.  Family Law Information Centres in Edmonton and Calgary provide legal information, help parents deal with the justice system and refer them to other organizations that can help them with court proceedings.  The goal of these centres is to help parents resolve disputes before they go to court.[111]

In British Columbia, Family Justice Centres are located in many communities across the province, but are not attached to courts.  Family Justice Counsellors provide dispute resolution services such as conciliation and mediation, help parents with court applications and help parents negotiate and prepare consent orders and written agreements.

Ontario has Family Law Information Centres (FLIC) in most family court districts, where people can obtain more information about the court process, about alternatives to litigation including mediation, and also obtain summary legal advice from a lawyer.  Information and Referral Coordinators are available in Unified Family Court FLICs to provide referrals to community resources, such as counselling or support groups.  In addition, clients can register for voluntary parent information sessions provided at each Unified Family Court.  These sessions stress the importance of keeping children out of the middle of disputes between the parents.

In Newfoundland and Labrador, Family Justice Services Western (FJSW), a pilot project operating out of Corner Brook, gives separating parents an alternative to the court system.  FJSW is a multi-disciplinary team of professionals who provide on-site education, mediation and counselling services to adults and children involved in divorce, custody, access, or child or spousal support proceedings.  All applications to court are referred directly to FJSW before a court date is issued.  Both parties are expected to attend the initial three-hour education session.

Parents should be able to assess the appropriateness of, and have access to, a variety of dispute resolution processes.  However, these services may not be available or accessible to all parents due to cost, location or awareness of the service.  In many cases, the court should be the arena of last resort in a family law dispute, but inability to access other dispute resolution processes may require parties to follow a traditional litigation route.

Concerns have been expressed that an increasing number of people are appearing in family court proceedings who are not legally represented, either because they cannot afford a lawyer and legal aid is not available, or they prefer to represent themselves.  Where they are unable to represent themselves effectively, this can have negative consequences for the parents and the children.  Without legal advice and representation, some parents engage in destructive behaviour such as child abduction and refusing to pay support.  Moreover, they can drain the legal system through unnecessary and protracted litigation.  While improvements in access to legal aid are one way of dealing with this problem, another approach is to provide self-represented litigants with supports to help them through the court process.  For example, information packages or kits can include information on how to apply for child support, how to apply for custody or access, how to vary an existing order, and how to oppose an application.  The kits can include copies of court forms and instructions on how to complete and file documents.  The services offered by agencies such as BC's Family Justice Centres, and the Ontario and Alberta Family Law Information Centres are another example.

Recommendation 20

It is recommended that governments and the professions work together to support the development of a broad spectrum of dispute resolution services, including mediation, arbitration and collaborative law, and other supports to parents to help identify and narrow the issues in dispute, such as custody and access assessments and parent education.

Enforcement of Custody and Access

The goals of enforcement services are to ensure that parents fulfil their obligations and responsibilities toward their children, to limit the level of conflict and distress experienced by parents and children due to non-compliance with court orders and agreements, and to increase respect for the administration of justice through compliance with orders and agreements.

Problems arise when parents fail to abide by the terms of their agreement or order and deny access or fail to exercise access rights.  Reasons for doing so can include a misunderstanding about what parents are required to do.  Consequences can range from minor incidents to high-conflict disputes.  Research shows that serious problems with access are much more likely to occur when there is a history of abuse or high conflict between the parents.[112]

For example, the roles of the state and of the parents may become linked when there are allegations of neglect or abuse by a parent that raise a child welfare concern.  In such cases, parental willingness to comply with the terms of orders or agreements relating to the child may decrease and there may also be a decrease in trust between the parties.  Child welfare authorities may face specific pressures when dealing with this type of case as the allegations have implications for family court proceedings.  As well, front line professionals dealing with custody and access matters may become aware of situations of harassment or abuse that call for a remedy beyond the remedies available for custody and access enforcement.  For example, a parent may need to obtain a restraining order against the other parent.

The Special Joint Committee on Child Custody and Access recommended that:

... the federal government work with the provinces and territories toward the development of a nation-wide co-ordinated response to failures to respect parenting orders, involving both therapeutic and punitive elements.  Measures should include early intervention, parenting education programs, a make-up time policy, counselling for families experiencing parenting disputes, mediation and, for persistent intractable cases, punitive solutions for parents who wrongfully disobey parenting orders.[113]

Most of the legal remedies and services recommended by the Special Joint Committee already exist.  The legal issues and remedies are outlined under Key Legislative Issues in this report and the services are described above in this part of the report.  The legislation could possibly be made more specific to provide a greater range of remedies in some jurisdictions, but legal tools are only a partial solution given the limitations in accessing legal remedies, the negative impact this can have on already troubled relationships, the cost and the inability of the remedies to resolve the underlying problem.[114]  While court orders and agreements should be respected by all involved, emotional demands and frustrations may lead parties to disrespect agreements or orders they do not see as fair or sufficiently flexible or sufficiently clear.

Custody and access enforcement issues involve a complex web of physical, psychological and emotional needs for children and parents.  Parents need to be supported and encouraged to understand that the children's needs come first and that as parents they have responsibilities to ensure the children's emotional, psychological and financial well-being, to the extent possible.

The Family Law Committee has looked at legislative and service approaches to enforcement both within Canadian jurisdictions and in other countries.  The research in this area consistently underscores the difficulty of developing effective and cost-effective approaches that do not have unintended deleterious consequences for the family.[115]

For example, Manitoba operated an access assistance project from 1989 to 1993.  The two main components of the project were voluntary conciliation aimed at resolving the root problems of the access difficulty, and a legal component whereby court action could be taken at no cost to the parent seeking to ensure compliance with the access order.  Demand for the service was relatively low.  It was found that the families who accessed the service had multiple issues demanding significant time and resources.  The program was not cost-effective and it was discontinued for fiscal reasons.

This is an area where more work is required to identify and develop more effective ways of dealing with the problems some parents experience.  Service responses can help parents to better understand the terms of their agreement or order and provide support to help them work through conflict and focus on the child.  Supervised access services can help parents meet their access obligations in situations where high levels of conflict exist between parents, or where it would be in the best interests of the child for access with the non-custodial parent to be supervised.

Service elements-identified in this report under Public and Professional Information and Education and Dispute Resolution-are also important in helping parents make informed decisions in the area of enforcement.  This includes, for example, parent education, mediation or collaborative law.  Some issues that are particularly relevant to enforcement and require further consideration are outlined below.

Recommendation 21

It is recommended that problems of access denial and failure to exercise access be monitored through research to identify best practices and the most effective ways of dealing with these problems, and that further research be undertaken to develop and assess innovative remedial approaches.

Family Legal Aid

The Special Joint Committee on Child Custody and Access recommended that the federal government provide adequate resources for legal aid "to ensure that parties to contested parenting applications are not prejudiced by the lack or adequacy of legal representation."[116]  In the Putting Children's Interests First consultations, respondents highlighted the need for access to legal aid in family law cases.[117]

Legal aid for family law matters is available in all jurisdictions.  Generally speaking, financial eligibility guidelines for legal aid are below the Statistics Canada low-income cut-off.  Thus, the availability of legal aid is limited to the very poor.  The range of family law matters covered varies considerably from one jurisdiction to the next.  Most legal aid plans provide services in a range of family law matters (for example, divorce, custody, access, maintenance, property division, child protection and restraining orders).  In certain jurisdictions, priority is given to cases in which there are issues related to safety of the spouse or children.  In all jurisdictions, priority is given to child protection cases following the case of New Brunswick  v. G.(J.).[118]  In a few jurisdictions, family legal aid is available only in cases where domestic violence is present.

The Family Law Committee recognizes a strong body of opinion in Canada that there is a high level of unmet need for family legal aid.  There is a serious concern that lack of access to family legal aid can result in very negative consequences for children and their parents.

Family legal aid issues are not a major part of the current national legal aid research initiative.  However, at present, limited research is under way using existing data sources to determine the number of unrepresented litigants in family courts.  The Committee looks forward to the results of this inquiry.

There is only preliminary empirical evidence at this time relating to unrepresented litigants in family court.  Depending on the jurisdiction and the level of court, preliminary data show that between about forty and eighty percent of litigants in family law matters are not represented at the time of first filing.

However, more access to legal aid is not the only solution.  There are other options that should also be considered for meeting the needs of families who require assistance in dealing with parenting legal issues.  Providing access to justice for families may involve a multidisciplinary approach using both legal and non-legal strategies to address problems arising from family breakdown.  These include services such as law help lines, non-litigation strategies such as mediation and family case counselling, unbundled services in which legal aid lawyers provide limited advice dealing with only certain aspects of legal matters and assistance designed to enable clients to handle other matters themselves, and pro bono services provided by the private bar.  These efforts might also include public legal information materials combined with some hands-on assistance aimed at helping parties with completing and filing court documents at least in uncontentious proceedings.  These are areas in which the legal profession can partner with the major funders of legal aid services to develop innovative solutions for low and middle-income families.

Recommendation 22

It is recommended that governments continue to work at improving components of the legal system that are critical to families' access to the legal system to resolve family breakdown issues, such as family legal aid.

Completion of Family Court Models

In 1974 the Law Reform Commission of Canada prepared an extensive paper on family courts and recommended that courts be created with exclusive jurisdiction to deal with all matters related to family law.[119]  At that time, sometimes two or three courts exercised family law jurisdiction in a province or territory.  Since that time, many jurisdictions have created dedicated unified family courts or structured models that allow family law jurisdiction to be exercised by one court or one division of a superior court.  More recently, the Special Joint Committee on Child Custody and Access also recommended the expansion of unified family courts. [120]

A key element of a family court model is a specialized judiciary, knowledgeable about or genuinely interested in family law issues and sensitive and knowledgeable about the complex social and legal issues raised in these cases.  This specialized knowledge, it is argued, makes these courts more effective and efficient and, as a result, leads to better and less costly results for the clients.

Family court models need to be supported by a range of services and programs to be truly effective.  The Special Joint Committee on Child Custody and Access also recognized the need for unified family courts to provide comprehensive services in addition to their adjudicative function.  By combining the streamlined court structure and specialized judiciary with a selection of the services and dispute resolution models described above, these courts provide an effective mechanism for resolving family disputes.

Recommendation 23

It is recommended that the federal government work with jurisdictions to establish unified family courts, where there is a jurisdictional request.

Recommendation 24

It is recommended that persons appointed to, and serving in, specialized family courts have expertise in family law issues.

H. DEALING WITH PARENTING ISSUES UNDER THE FAMILY LAW SYSTEM

Introduction

The Family Law Committee's mandate for this project required it to "identify and make recommendations respecting custody and access issues that arise before, during and after family disputes."  The previous two sections of this paper deal with the key legislative and service issues.  This section of the paper examines how the family justice system deals with other custody and access issues arising in separated or separating families, from the time of the birth of a child, through all stages of family breakdown.  As a result of this analysis, the Committee identified a number of areas for legislative action, service improvement, research or further work.

When parents separate, they need to consider several main legal issues in deciding their post-separation parenting arrangement.

Following an information-gathering stage, the parents may decide on an arrangement with the assistance of skilled professionals, such as lawyers and family counsellors.  If no agreement can be reached, the parents may proceed to court.  Different dispute resolution processes apply to a court matter, some of which may be ordered by a judge but are external to the court process (for example, assessments and mediation), and others that are part of the court process (for example, case conferences, pre-trial conferences and opportunities for disclosure of information).  Following the establishment of a parenting arrangement, there may be a need to enforce or change the arrangement, and this may trigger the whole decision-making cascade again.

Many families have particular issues that complicate the usual process.  Of particular importance are situations where the behaviour of one or both parents makes it unsafe for the other parent or the child to participate in direct negotiation of the custody and access issues.  These situations include domestic violence and child abduction.  In some situations addiction or mental illness may result in a parent being incapable of caring for a child.

In many separations, one parent makes the decision to separate against the wishes of the other parent.  The other parent in these situations may negotiate children's issues as a means of maintaining contact with the former partner, or in the hope of reconciliation, and may not be fully cognizant of the ramifications of agreements they make about their parenting arrangements.  On the other hand, a parent who has been left may be resentful and, in retaliation, may take unreasonable positions on parenting arrangements.  There is a risk that either parent may knowingly or unknowingly use the children as pawns to meet his or her own needs.

In addition, many parents never live together with their biological children.  Such situations must be accommodated in any discussion of custody and access.

The Stages of Family Breakdown

When Parents Never Reside Together

The parental responsibilities of parents who never marry or reside together are governed completely by the law of the province or territory in which they live.  While all provincial and territorial legislation establishes that a child's rights are the same whether born within or outside marriage, the provinces and territories have different starting positions concerning the custody and access of a child born to parents who have never lived together.

The Saskatchewan legislation provides that "where the parents of a child have never cohabited after the birth of a child, the parent with whom the child resides is the sole legal custodian of the child."  Custody under the Saskatchewan legislation "means personal guardianship of the child and includes care, upbringing and any other incident of custody having regard to the child's age and maturity."[121]  In other words, the person with whom the child lives has both physical custody and decision-making authority.  Under the British Columbia legislation, the mother is the sole guardian, which is defined to include both guardianship of the estate and guardianship of the person of the child, unless a court orders otherwise.[122]

Some statutes draw no express distinction between the situation where parents cohabit after the birth of the child and where they do not.  Several take the same approach as the Ontario legislation which provides that "where the parents of a child live separate and apart, and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement to custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides."[123]

Sometimes the fact of parentage is at issue.  This most often arises in the context of child support, and usually it is paternity that is at issue.  All the jurisdictions have legislation that sets out how the courts are to determine this question.  The statutory provisions all differ, but there are some important common elements.  Almost all the statutes contain provisions establishing a presumption of paternity in certain circumstances, and providing that, in these circumstances, a person is presumed to be the father unless the contrary is proven on a balance of probabilities.  The circumstances giving rise to a presumption typically include:

Where a child is born to parents who are not cohabiting, the first important legal step in terms of establishment of parentage is the birth registration.  The jurisdictions have varying requirements under their legislation relating to birth registration and the effects of it on the establishment of paternity.

In view of the fact that an increasing number of Canadian children are born to unmarried parents, the Family Law Committee believes that there is a need to do further work to consider whether changes to legislation are required to ensure a level of consistency between jurisdictions.  Such a review might be timely given the proposed federal legislation dealing with reproductive technology.

Recommendation 25

It is recommended that the provinces and the territories review their legislation respecting establishment and recognition of parental status, and entitlement to custody and access on the birth of a child, with a view to identifying any issues that require a legislative or service response, and making recommendations in the future.

When Cohabiting Parents Separate

When parents cohabit, there are three main models in Canada of custody and access upon separation.  These models apply from the time of separation until there is a formal, legally recognized agreement between the parents or a court order.  In some jurisdictions, the parent with whom the child lives has physical custody and decision-making authority and the other parent may have access.  In others, the parent with whom the child lives has physical custody, the other parent has access, and they share decision-making authority.  A third model provides that the parents continue to have joint custody until a court orders otherwise.  In Quebec, the children remain under the parental authority of both their parents.

These models provide very different starting points for parents who separate.  Many parents may not understand the subtle differences between these models.  These parents will work out their own arrangement about the care of their children, using terms like custody, access, guardianship, parental authority, residence, care and control or visitation, without relating these terms to the law of their province.

In terms of the child's best interests, there are two main policy considerations that require balancing.  On the one hand, the child's living arrangement should be secure so the parent with whom the child resides can effectively manage the child's care, and so the child is not subject to abrupt removal by the other parent, violence or inadequate parenting.  On the other hand, the statutory model should not jeopardize the relationship that the child had with both parents prior to separation.  Each jurisdiction has struck its own balance, based on assessments and perceptions of societal norms.

Where abuse, violence, mental illness, or child welfare matters have forced a parent to separate, that parent must seek the protection of the court to change the default statutory provisions for custody and access.  Additional caution may be needed in seeking the input of children in these situations, as the stress can be detrimental to their mental health and development.  They may identify with the abusive parent, view themselves as the saviour of the mentally ill or addicted parent, or blame themselves for disclosing abuse.[125]

The point of separation offers many opportunities for government and the community to support parents and children.  Assistance to parents who are separating should come in the form of parent information and education services; training for persons who are likely first points of contact, including lawyers, counsellors, child welfare workers, doctors and religious advisors; and emotional support for those parents who require time to accept the reality of separation.  Further details of the service recommendations of the Family Law Committee are found in this report under the section entitled Service Options and Responses.

When Parents Cannot Agree on a Parenting Arrangement

Whether parents have never resided together or they have cohabited, many will not have a formal arrangement about the care of their children.  They may not have a formal arrangement for many reasons.  For example where one parent, usually the father, has little or no contact with his children, neither parent may see any advantage to entering into a formal arrangement.  Other examples include situations where the parents manage co-operatively without dispute, or the parents lack the resources to enter into a formal arrangement.  About a third of separated parents will have no formal arrangement for the care of their children.[126]

Other parents will arrive at some written, legally sanctioned arrangement about the care of their children.  Most commonly this arrangement is set out in a separation agreement.  Only a minority will obtain a court order.  Most separation agreements are prepared with the assistance of one or more lawyers.  Some will contain very limited information about parenting arrangements, while others will incorporate a detailed parenting plan.

Parenting plans usually consist of a detailed schedule of the child's living arrangements; a list distributing decision-making responsibility about different facets of the child's life (for example, one parent might be responsible for religious education, while the other could decide if the child would participate in select sports teams); restrictions on changing the child's or either parent's residence, provisions for holiday periods with the child; and a dispute resolution mechanism.  Parenting plans have the benefit of anticipating many of the conflicts that arise in "usual" separations, but for the parent who is highly controlling or who simply wants to maintain contact with the former spouse, they can lead to seemingly endless rounds of negotiation over details.  In the hands of an abusive former spouse, a parenting plan can be a very effective tool of control, because they do not change the underlying assumption of most law that the parents share decision-making authority.  Usually, the plan is only enforceable between the parents, and parents have few real options if their former spouses simply choose to ignore the rules set out in the plan.[127]

Lawyers usually draft separation agreements and consent court orders.  Lawyers may simply reduce to writing the terms the parties have agreed to themselves with or without assistance from other persons such as mediators.  Where the parties are unable to reach an agreement, lawyers assist the parties through negotiations.  Lawyers frequently encourage clients to consider mediation, a parenting plan or a conciliatory solution during the preparation of a separation agreement.  If the area of disagreement is small, direct negotiation between lawyers will remove the need to have another professional involved with the family.  In many cases, settlement of child custody and access issues through a separation agreement may provide a more flexible and comprehensive remedy for the parties than a court order or at least provide as durable an arrangement as a court order.

In a few areas in the United States and Canada, lawyers are developing a new approach to resolving family disputes-collaborative family law.  Lawyers trained in interest-based negotiation work with their clients and other counsel to negotiate a settlement in a face-to-face process.  The lawyers and clients agree before negotiations begin to forego litigation or, if the negotiation fails, the parties must hire new counsel.  Thus the focus is clearly on settlement.

The Divorce Act requires lawyers to advise clients of counselling and mediation facilities, and to discuss the advisability of negotiating custody and support issues.  Given the range of dispute resolution mechanisms that has been developed, from arbitration to collaborative law, the current requirements in the legislation, and any similar provisions in provincial and territorial legislation, may be too narrow.

Recommendation 26

It is recommended that jurisdictions encourage the development of collaborative family law practice as a further option for parties to consider as a method of dispute resolution.

Recommendation 27

It is recommended that family law legislation require lawyers to advise clients of the full range of available dispute resolution options.

When Married Parents Decide to Divorce

Like marriage, divorce is a legal event.  It can only be accomplished by a court order.  Only persons who are married need to get a divorce, but not all married parents who separate will divorce since there is generally no legal need to do so unless one of the former spouses wishes to remarry.[128]

When parents do divorce, they have the option of making parenting arrangements under the Divorce Act.  Because of the structure of the Canadian constitution, if one parent decides to proceed under the Divorce Act to determine parenting arrangements, proceedings under provincial law to determine the custody or access of the children are stayed or terminated.  The paramountcy of the federal statute is significant, because if there is a substantial difference between the two statutes, the parent who perceives the federal statute to be more advantageous to his or her rights will likely proceed with a divorce.

Currently, under the Divorce Act, a judge can adjourn the divorce proceeding to allow the parents to attempt reconciliation.  It may be that the Divorce Act should also allow a judge to adjourn the proceedings so that the parties can attempt to resolve their issues outside of court through mediation or other non-judicial dispute resolution mechanisms.

While the Family Law Committee endorses the use of alternatives to court action to resolve parenting disputes, there is a lack of consensus about providing legislative authority in the Divorce Act for a judge to order parents to attend mediation, an assessment or other provincially funded services.  Since most jurisdictions provide for the use of alternate approaches to dispute resolution through court rules or legislation, further work is required to determine whether there are legal or practical limits to the ability to access these services in Divorce Act cases.

As well, Canadians are increasingly mobile and it is common for one or both parents to move, for better employment opportunities or other reasons, and leave the jurisdiction where the family resided after the marriage or relationship breakdown.  Relative consistency of federal, provincial and territorial laws has the benefit of reducing the confusion about the law that applies to family relationships across the country and the manner in which child-centred decision making occurs.

Recommendation 28

It is recommended that jurisdictions work to ensure that children are treated similarly and provided similar protection in Canada by providing relative consistency in laws affecting custody, access and child support.

When Parents Seek the Assistance of the Court

It will not be safe or reasonable for some families to establish their own parenting arrangements because of problems such as conflict, emotional distress, competing values, family violence, serious mental illness, or addiction, which place one of the parents or the children at risk.  Other families will attempt to make their own parenting arrangements and not succeed.  Still others will find themselves before a court, because a court order is a necessary prerequisite to the resolution of the parenting arrangements (for example, they require an order finding them a parent before they can claim access), or for some other entitlement (for example, income security benefits.)

Court activity is governed by two components:  the applicable law and the court procedure (which is usually set out in court rules).  Under the constitution, each province controls its court procedures.  As explained above, provincial law governs all parents who are not married.  Even married parents can choose to start a court action under the law of their province, rather than the Divorce Act.  In some provinces there are two levels of court that can decide family law issues.  Where there are two levels of court only the higher court can grant a divorce.  Typically, legal fees and court costs are higher in the higher court and procedures are more complex, and so some parents prefer to resolve their parenting issues in the lower court.  In other provinces, and in parts of some provinces, the two levels of court are "unified" so that one court has the capacity to make all family law decisions.

Court processes across Canada are adversarial, meaning that each person is responsible for bringing forward the facts and law to convince the judge of the merits of their case.  Since parenting is an ongoing relationship, resolving parenting issues through an adversarial model can be counterproductive.  Parents who come to view the court case as a battle, where one will be the winner and one the loser, are ill equipped to continue a co-operative relationship.  In response to this perceived flaw, many provinces have added additional supports and steps to the court process when custody is at issue to help ensure that the focus on the best interests of the child is not lost.

Recommendation 29

It is recommended that courts make appropriate use of judicial and non-judicial settlement approaches to avoid the hardening of positions and to promote early settlement and narrowing of issues in dispute.

Steps in the Court Process

Court procedures vary from province to province and between levels of court within those jurisdictions which still have two levels of court.  A jurisdiction's civil law procedures usually govern its family proceedings, although some jurisdictions have specialized family procedures.  Sometimes attempts have been made to use plain language in the codes of procedure for family law to allow the lay litigant to better understand the process.

Civil courts, particularly federally appointed superior courts, tend to have extensive codes of procedure.  These allow for complex litigation over a whole range of civil issues, including commercial disputes.  The language and process of the court is most often foreign to the parents, who can feel that their parenting decision has been "handed over" to a decision-making process over which they have little control.  For example, in a research report into the effectiveness of mediation, a Manitoba study shows that only a small number of participants felt they had some control over the court process.[129]

Usually, there is an early opportunity for a parent to get an interim or temporary order, which will last until the final determination of the issue through settlement or trial.  Most court systems have at least one conference, directed by a judicial officer, to discuss the prospect of settlement of some or all of the issues between the parties.  In specialized court procedures there can be many conferences with a judge before a trial.

In Canada, most family court processes are case-managed, meaning that the judge or court staff attempt to keep the parties on a scheduled timeline, to ensure that the matter proceeds expeditiously.  This case management process can add additional steps to the process, as parents must report to the court about why their case is not progressing.  Case management systems need to be sensitive to the particular issues involved in family proceedings.  In particular, they have to ensure that, in urgent matters, such as those involving violence or wrongful removal of a child, case management procedures do not impede families having their case heard by a judge without delay.

Recommendation 30

It is recommended that case management systems provide for expedited access to judicial decision making where it is in the best interests of the child to have the matter dealt with on an urgent basis.

At any point during the court process, parents can reach an agreement about their parenting arrangement.  Because they have an application before the court, this agreement is often incorporated into a consent order of the court.  If no agreement is reached, the court case will proceed through all of the steps and culminate in a trial, at which evidence is heard.  At the conclusion of the trial, the judge will order a parenting arrangement for the children.

Court adjudication and trial have a role to play in the protection of parents and children who may be at risk of harm or manipulation.  However, because most family law, apart from child protection legislation, is private law and parents must handle their own litigation, the court process tends to favour the parent who has the most financial resources.  Legal aid funding for court activity is unevenly distributed across the country, and between the civil and criminal legal aid systems.

When the Court Makes an Order

A court may only make an order about an issue raised by one of the parents.  Either parent must ask the court to assist with the parenting arrangement before the court has the power to make an order.  Court orders can be interim (pending a final order) or final.  The title final on court orders dealing with parenting arrangements is somewhat misleading since the law allows a parenting order to be changed if it is in the child's best interest to do so, and if there has been a material change since the making of the order.

For married parents to be divorced, the court must make a divorce order.  Often, parenting arrangements that have been agreed to in a separation agreement are included in the divorce judgment.

Court orders in Canada tend to be drafted by the lawyers who represented the parents, or by court staff.  These orders may be very different in the level of detail that they provide about the parenting arrangement.  Some courts will incorporate a detailed parenting plan, while others will simply state that the parents have joint custody of the children.  Courts in Canada may order a full spectrum of parenting arrangements.  Case law confirms that the court can attach any conditions to an order for custody or access that it thinks are necessary to give effect to the order.

If the parents have been to court, the court order is the primary definition of their future parenting relationship.  Parents can benefit from clear, unequivocal language in the court order setting out each parent's responsibilities to the children.  Because they have had to turn to the court to resolve their parenting dispute, it is more likely that they need more guidance or rules to resolve parenting disputes in the future.  It is important that the order be clear for enforcement purposes as well.  Manitoba has been proactive in addressing the issue of clarity in court orders by developing a template of clauses that judges and lawyers can include in court orders through an "auto-orders" pilot project.[130]

Recommendation 31

It is recommended that orders be worded clearly and consistently to ensure that the parties understand their obligations and that the orders can be enforced.

When a Person Needs to Change a Parenting Arrangement

Children grow and families change.  Parenting arrangements or decisions about the child's upbringing may have to be changed many times over the course of a child's life.  Even where "final" decisions have been reached between a child's parents, changes such as new parental relationships, one or both parents' desire to move, a child becoming an adolescent and changes in financial circumstances can trigger a re-evaluation of the parenting arrangement.  How the change is made is determined, to a great extent, by the form of the original arrangement.

Usually a written agreement about the care of a child can be changed by a further written agreement that is signed by both parties and witnessed.  Many separation agreements contain dispute resolution mechanisms, including mediation and arbitration, to assist parents to decide on the terms of the variation.

A court order can only be changed by a further court order.  Therefore, even when parents agree, if the parenting arrangement is set out in a divorce judgment or a custody and access order, they will have to return to court to have the order changed.  Some parents need the assistance and protection of the court even where they have reached an agreement.  For example, judicial review of parenting changes can guard against coercion by one parent.  However, where the parents initially obtained a court order, not because they had a dispute, but for other reasons discussed above, such as income security requirements, court action to change their parenting arrangement may itself trigger discord.  In other words, a court hearing with its attendant emotional and financial costs may not be necessary or desirable in some cases.

Recommendation 32

It is recommended that procedures for variation of orders provide that, where there is consent, custody, access and child support orders can be varied expeditiously and without a court hearing.

PART 2: CHILD SUPPORT

A. INTRODUCTION

Child support guidelines are the rules and tables that the courts must follow in determining the amount of a child support order.  Amendments to the Divorce Act establishing the framework for the guidelines and the Federal Child Support Guidelines Regulation came into effect May 1, 1997.  All the provinces and territories also have enacted child support guidelines legislation.  With the exception of Quebec, the provinces and territories adopted the federal guidelines or enacted a modification of them.  Quebec has its own child support guidelines.

Part of the legislation adopting the Divorce Act child support guidelines required that the federal Minister of Justice report back to Parliament by May 1, 2002.  In 1999, the federal Department of Justice consulted on technical issues related to the child support guidelines through distribution of a paper for public response.[131]  An interim report on child support guidelines was provided by the Standing Senate Committee on Social Affairs, Science and Technology.[132]  The 2001 public consultations, Putting Children's Interests First,[133] invited responses on four issues:

The Family Law Committee believes that, in general, the guidelines have succeeded in providing a reasonable basis upon which parties can determine their level of responsibility for child support, in encouraging parties to accept and pay child support and in raising the general level of child support available to children.[134]

While the guidelines have been largely successful, parents, lawyers, judges and others have identified issues that require further work to improve the guidelines.  These issues will not require major changes to the guidelines, merely fine-tuning.  The intent is to provide greater clarity while maintaining flexibility.  It is noted that any change to terminology in the Divorce Act would, of course, require changes in the child support guidelines provisions in the federal, provincial and territorial legislation.

Taking into account the results of the 2001 consultation as well as previous consultations on other issues, research results and case law analysis, the Family Law Committee makes the following recommendations.

B. LEGAL PROCESS/LEGISLATIVE ISSUES

Shared Custody

When a parent exercises access to, or has physical custody of, a child for forty percent or more of the year, the court may order a support amount different from the amount prescribed in the guidelines.  In making such a decision, the judge considers the table value for each parent, the extra costs of shared custody and the condition, means, needs and other circumstances of each parent and any child for whom support is sought.

The 40 Percent Rule

Although the use of a threshold based on time has been criticized because of the direct link between child contact and support, no alternative has been found that can demonstrably improve the test.  Although many other proposals have merit, none simplifies the court process and each represents a radical departure from the status quo.  Departure from time as the basis for the threshold test would result in significant uncertainty and increased litigation, contrary to the objectives of the Guidelines.

Selecting a higher time threshold such as substantially equal has some advantages.  However, they are somewhat outweighed by other factors.  These factors include the potential for increased litigation over the meaning of the term; unfairness to parents with high access time; and uncertainty as to whether this would actually reduce the link between child contact time and child support, leading to a decrease in litigation.

There is an established body of case law interpreting the section and parents and legal professionals are familiar with it.  However, the case law will continue to be monitored.

Recommendation 33

It is recommended that no change be made to the 40 percent threshold rule.  However, further guidance should be provided in the child support guidelines on how to determine or analyze the elements that contribute to the determination that the 40 percent rule has been met.

Presumptive Formula

It is proposed that the current factors used to determine the amount of support in shared custody situations be replaced by the use of a presumptive formula.  A judge will determine the support amount by applying the prescribed formula, unless that amount is inappropriate.  The proposed formula amount is the difference between the table values for each parent (set-off formula).  The introduction of a presumptive formula is intended to increase predictability and certainty while maintaining overriding judicial discretion to order another amount in the appropriate circumstances.

The set-off formula will be determined having regard to the table values for the total number of children for whom the parents maintain a residence.  In determining the appropriateness of the formula amount, the court may consider any relevant factor, including how the spouses share the children's expenses.

The set-off method accounts for the increased costs of maintaining a residence because each parent's contribution will be based on the total number of children for whom the parents maintain a residence.  This is different from split custody situations where the table values only account for the number of children in each parent's care.  The set-off method is consistent with the guideline approach that requires each parent to contribute to the maintenance of the children in accordance with what he or she would contribute if the family were intact.

Use of a presumptive formula simplifies the determination of support and provides certainty and predictability.  It gives parents and courts more direction in determining the amount of support in shared residence situations while maintaining flexibility.  Overriding judicial discretion to depart from the formula in appropriate cases means that unfair amounts should not be ordered.  Many courts are already applying this test in appropriate cases.

Recommendation 34

It is recommended that the current factors used to determine the amount of support in shared custody situations be replaced by the use of a presumptive formula.  The formula amount would be the difference between the table values for each parent given the total number of children in the shared custody arrangement, unless that amount is deemed inappropriate based on, for example, how the parents share the child's expenses.

Definition of Extraordinary Expenses

Section 7 of the Guidelines provides that six categories of special child-related expenses can be included in the child support amount if they are reasonable and necessary in light of the needs of the child, the means of the parents and the child and any family spending pattern established prior to separation.  Included in those categories are extraordinary expenses for education and extracurricular activities.

The term extraordinary has been interpreted differently across the country.  This has created some confusion and inconsistency in application resulting in calls for an explanation of the term.  It is therefore proposed that section 7 be amended to add a definition of the term extraordinary.  Parents and courts will be directed to examine whether the expense is extraordinary in relation to the income of the parent requesting and paying for the expense.  If an examination of the income is insufficient to determine whether the expense is extraordinary, parents and the court will be directed to consider other factors in addition to income.  This reform would model the changes that Manitoba has made to its legislation.  These other factors will include:

The proposed approach is consistent with the original intent of the section and with the interpretation adopted by several appeal courts.

Recommendation 35

It is recommended that the term extraordinary be defined in the Guidelines.

Support for Children at or Over the Age of Majority

Many people have argued that older children receiving support should be accountable and provide financial and other information to demonstrate continued entitlement to support.  Others say this is an unnecessary breach of the older child's privacy that also has the effect of involving the child in the parent's litigation.

It is proposed that the Guidelines be amended to require disclosure of information relevant to the child's entitlement to support.  This would ensure transparency and accountability.  The amendment will require the recipient parent, not the child, to provide the information upon the written request of the paying parent, thus insulating the child from direct involvement in the litigation.  This requirement would apply in all cases where support is to be paid for children at or over the age of majority, not just in those that include special expenses.

Special expenses, such as tuition for post-secondary education, are those beyond what is covered by the child support table amount.  Under the Guidelines, there is already a section that requires parents to produce information regarding the status of any special expenses.  However, this provision does not extend to producing information about ongoing eligibility and other expenses that may be paid with the table amount or another amount paid for older children.

Recommendation 36

It is recommended that no change be made to the provisions regarding the eligibility for support of a child over the age of majority.

Recommendation 37

It is recommended that the Guidelines be amended to require recipients of support for children over the age of majority to disclose information respecting the child's ongoing eligibility for support.

Undue Hardship Test

The undue hardship provision recognizes that, in some circumstances, payment of the table amount, or the table amount plus special expenses, can cause a parent or a child to suffer undue hardship.  This section permits courts and parents to decide upon a different amount, in appropriate cases, in order to relieve this hardship.  The undue hardship provision is intended to balance the Guidelines objectives of consistency and a fair standard of support, taking into account the particular circumstances of any given family.

The undue hardship provision has been criticized because it has been restrictively applied for parents who seek to decrease the support amount, notably when access costs are high for paying parents who reside far from the child.  Courts are presently reviewing these situations on a case-by-case basis and, for the most part, are applying the section as intended.  In many mobility cases (paying parent residing far from the child), courts are making provisions for high transportation costs incurred by the parent exercising access by way of a separate order.

Recommendation 38

It is recommended that no changes to deal specifically with high access costs be made to the guidelines.  These situations should be dealt with on a case-by-case basis and any accommodation appropriate to a particular case should be addressed as part of a custody and access order.

Obligations of Those Who Stand in the Place of a Parent

Spousal and family relationships of varying permanence, and blended families, have become more common in Canadian society.[135]  A person who acts as a parent to a child may have a legal obligation to support that child after the relationship with the other parent ends. 

Currently, the Divorce Act defines a child of the marriage (a child eligible to receive child support) as a child of two spouses or former spouses, including "any child of whom one is the parent and for whom the other stands in the place of a parent."[136]  Most provinces and territories have adopted a similar definition in their own legislation or have defined a child as "a child in relation to whom a person has demonstrated a settled intention to treat as a child of his or her family."

Once it has been established that a step-parent stands in the place of a parent, the step-parent's obligations are similar to those of the natural parent.  The child support guidelines allow courts to set a child support amount they consider appropriate in these cases.  When making this decision, courts must take into account the amount set out in the guidelines and the legal duty of any parent other than the step-parent to support the child.

Courts have adopted a variety of approaches to this issue and, in light of the resulting inconsistencies, some people have argued that the regulations should give judges explicit direction about how the amount of support for stepchildren should be determined.  However, the question of how child support should be allocated among natural parents and step-parents is quite complex and is largely driven by the facts of each case.  A rigid formula could create unfair results.  Most respondents expressed this concern during the consultation process.[137]  For all these reasons, it is recommended that this section not be amended.

Recommendation 39

It is recommended that no changes be made to the provisions in the child support guidelines respecting the obligations of those who stand in the place of a parent.

Child Support Tables

The federal child support tables set out the amount of monthly child support payments for each province and territory on the basis of the annual income of the parent ordered to pay support and the number of children for whom a table amount is payable.  The amounts vary from one jurisdiction to another because of differences in provincial income tax rates and certain credits.  When the Federal Child Support Guidelines were adopted, the intent was for changes to be made to the tables when changes to the tax rates significantly affect the table amounts.

Recommendation 40

It is recommended that the child support tables be updated every five years, or more often, if there are changes to federal, provincial or territorial taxes that would have a major impact on the table amounts.

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