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An Inventory of Government-Based Services That Support the Making and Enforcement of Custody and Access DecisionsThe Federal-Provincial-Territorial Family Law CommitteeJanuary 2000 TABLE OF CONTENTS
This is an inventory of provincial and territorial government programs that support the making and enforcement of custody and access decisions. As such, it focuses strictly on the services that deal with divorce or separation when children are involved, such as: parent-education; mediation; family-law information; legal aid; case management; custody and access assessments; supervised-access facilities. It is not intended to be a scientific or statistical study. Nor is it a detailed accounting. Rather, members of the Federal-Provincial-Territorial Family Law Committee wanted an idea of the range of programs available across Canada, to facilitate discussion of what ideal mix of services should be available to support post-separation parenting arrangements. It also aims to encourage communication among jurisdictions by briefly providing locations, names and phone numbers of those who run the programs. While delivery of these programs is essentially within provincial jurisdiction, many have received funding from the $50 million Federal Child Support Implementation and Enforcement Fund, which was started on April 1, 1996, and is presently scheduled to end March 31, 2001. The money has been distributed in such a way that the Fund was at the peak of its activity in January 1999. Programs that have received funding under this initiative are marked with an asterisk throughout the inventory. To gather this material, the Federal-Provincial-Territorial Family Law Committee members enlisted the aid of program managers, asking them to provide information in five strictly defined areas:
In each category except the last, the Family Law Committee sought: a brief description of each program or service; some statistical data that would define its scope or mandate; information about any evaluations done; the legislative authority under which the service operates; whether it is a pilot project; the locations where the service is available; the name, title and telephone number of a contact person. In the last category, Family Law Committee members provided specific sections and subsections of legislation and rules of procedure that deal specifically with custody and access. As the results returned from the provinces and territories, it became clear that some adjustments in the organization were in order, as many across-the-board trends began to emerge. So the order of the information was changed to include the following six headings, which more accurately reflect the nature of the material contained in this inventory:
Only programs or services that are in force, or have a 1999 implementation target date, are included. Where programs or services are planned but have no implementation target date, there is a brief mention and reference to material that can provide more complete information. Where there is crossover, a program in one category providing a service that could be listed under another, there is cross referencing. For example, a children's lawyer program listed under court-based services also will be referenced under services and programs where the child is the client. Because each province and territory acts independently to implement legislation and services, no inventory could ever be entirely consistent in terms of organization. In some cases, provincial and territorial governments have chosen to consolidate a number of services under one umbrella organization. For example, Manitoba has one service, Family Conciliation, listed under mediation, information and education, but it takes in mediation, parent and child education, and custody and access reporting. In other cases, governments have chosen to offer services under very specific programs. Ontario, for instance, lists 13 different services under mediation, information and education.
Despite organizational differences, several common trends, objectives and themes have emerged. Over all, courts across the country are finding new, humane and often imaginative ways to reduce the financial and emotional strain of separation on legal systems and families alike. There is a move by the provinces and territories to place more emphasis on streamlining the process, and to make it more accessible. All the provincial and territorial governments are working to implement effective, out-of-court, dispute-resolution mechanisms, and are strongly encouraging separating or divorcing couples to use them. In some cases they are experimenting with mandatory referral. In this area, social services and the legal system are working together to create dispute-resolution processes that avoid ongoing conflict and litigation in matters of custody and access. These services are focused on two key areas, mediation and parent education. Mediation and other similar programs aim to take settlement resolution out of the adversarial, court process and place it in a more co-operative framework. The idea is for the parties to come to an agreement with the help of the mediator, who should be neutral with regard to the outcome. In some jurisdictions, such as Quebec and Prince Edward Island, mediation is free. In others, such as Ontario, Saskatchewan and Alberta, user fees are calculated on the basis of an ability to pay. Perhaps the strongest and most comprehensive efforts in favor of mediation are being made in Quebec, where a mediation-information session is required before the hearing of any application involving custody, access rights 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 an average of one hour and 15 minutes. In the case of applications for review, mediation is free for as many as three sessions. At the same time, education and information programs, usually run by lawyers and social workers operating together, are being implemented to help divorcing couples cope with the emotional effects of separation and divorce on themselves and their children. The objectives are to arm people entering the process with an understanding of the demands and challenges of post-separation parenting, and educate them on methods of communication, dispute resolution and co-parenting. These programs teach parents how to protect their children's best interests, through cooperation and consultation. Most jurisdictions do not provide a separate track for those parents in high-conflict situations. The notable exception is Manitoba, which has instituted an innovative program under its Family Conciliation Services. Called For the Sake of the Children, this program consists of two 3-hour seminars. The first session deals with general information of use to any separating or divorcing couple. The second is split into two groups, low-conflict and high-conflict situations. Where other parent-education services deal solely with facilitating communication, the Manitoba service has recognized the need to teach couples in high-conflict situations about a low- to no-contact approach to post-separation communication. Although participation in mediation, education and information programs is almost always voluntary, Quebec, as mentioned above, is the only province where the court can order parties into mediation, there has been some experimentation with mandatory referral, the idea being to ensure parties consider alternate dispute-resolution processes. This can be taken as an indication of the importance the provinces and territories are placing on this step in the process. Ontario and British Columbia have pilot projects to test the effectiveness of mandatory information sessions. Ontario has just completed a pilot project in Kingston Family Court, to test directing people to mediation-information sessions. In Kingston, no case can go before a judge before the possibility of mediation has been thoroughly explored. The project was conducted as a one-year assessment to help the province develop a policy on mandatory mediation. In British Columbia, a four-month pilot project in Burnaby/New Westminster tested the effectiveness of requiring that anyone applying for child support, custody or access orders attend a Parenting After Separation workshop before their first court appearance. Provincial and territorial governments are all looking for new ways to screen out cases that need not land in court, and to minimize the time taken to handle divorce or separation cases. Ontario, Alberta, Manitoba, British Columbia and the Northwest Territories have instituted case management programs, to resolve disputes without trial if possible and, when a trial is required, reduce unnecessary delay and expense by promoting quick and fair settlements. This may involve pre-trial conferences, settlement conferences or mini-trials. In Ontario, case management is a permanent program in Ottawa, and is being piloted in four other regions. Each region has its own legislative authority and is responsible for case management in its jurisdiction. The main thrust is the same in all the regions, tracking cases into reasonable time frames and setting deadlines for resolution. In Alberta, case management is a permanent service that can be requested by either party, when there is the feeling proceedings have become unreasonably slow, or have reached an impasse. A judge is assigned to the case and may expedite it through settlement conferences and pre-trial hearings. As well, the case manager can order couples to attend parent education seminars. In Manitoba, a similar case management system has been set up as a pilot project. Cases are randomly selected to be managed and expedited through the system by a judge who is specially assigned for this purpose. The number of cases has doubled since the start of the project in 1995, and response from Manitoba lawyers has been hugely positive, with 93% of those surveyed saying the service had reduced the number of uncontested hearings in the province. Manitoba is considering continuing the program. Most jurisdictions have services attached to the court that can assess parties needs and, if appropriate, refer them elsewhere, such as Alberta's Court Services and Ontario's Family Law Information Centres. The objective is to have a service attached to the court that can help resolve disputes before they go to court, or provide legal information, help clients deal with the court system, and refer people to organizations that can help them with court cases Some have experimented with having a court clerk on staff, such as Quebec's Special Registrar, or the Northwest Territories' Family and Civil Law Information Officer, who can disseminate information or, in some cases, even approve agreements between parties. Nova Scotia is considering this model, which has proved very successful where it has been implemented. The notable exception is British Columbia's system of Family Justice Centres, which is not attached to the court. This service is available in 31 locations across the province, and offers services ranging from conciliation to mediation. It can also help parties get consent orders and written agreements, and assist with applications to court. Many parents cannot afford to hire a lawyer or do not qualify for Legal Aid; and others choose to represent themselves. Ontario and Saskatchewan are dealing with the increasing numbers of parents who are not being legally represented in court by offering divorce self-help kits. These kits contain everything the parties need to proceed with a divorce proceeding, court forms; information on uncontested divorce; application for support and custody; application for child-support variation. Another nationwide trend is a growing awareness that children are parties in divorce or separation, and are entitled to counselling, to make their needs and wishes known. While all the provinces and territories put the primary emphasis on protecting the interests of children in access and custody cases, many are going beyond this to implementing services where the child is the client. Ontario's and Quebec's children's lawyers and British Columbia's Family Advocate Program are in the business of providing children with their own counsel in custody and access cases. The lawyers are appointed at the discretion of the court, when the court considers a child's interests are not being adequately represented. However, in British Columbia, the court has no discretionary powers to make these appointments. It is the Attorney General under s. 2 of the Family Law Act who has the discretion to appoint. Children's lawyers can conduct investigations, prepare reports, and make recommendations with regard to custody and access, child support and the child's educational needs. Legal Aid Manitoba has implemented a temporary agreement to cover the costs of appointing friends of the court in custody and access cases. In Quebec, when there is a feeling that a child's rights are being violated, the Human and Young Person's Rights Commission also can become involved at the request of the child, a parent or another relative. The sole mandate of the commission is to protect the rights of young people, and it can conduct investigations and instigate court proceedings. Similarly, Ontario's Office of Child and Family Services Advocacy is authorized to protect the rights of children who are receiving or seeking social services. Saskatchewan and Manitoba both have education services aimed directly at children. In Saskatchewan, the Children's Education Curriculum offers programs for three age groups, 6-9, 9-12 and 12-16, to help children learn how to cope with separation and divorce. Manitoba's all-encompassing Family Conciliation service offers a similar free program for children aged 8 to 12.
There is increased awareness of the need for safe or neutral settings for access, when there is concern about the safety of a child or custodial parent. British Columbia, Saskatchewan, Manitoba, Ontario and Quebec all have supervised access facilities, in most cases provided by volunteers or private non-profit groups operating with aid from the province. The one area where very little has been done is services to aid in the enforcement of custody and access orders and agreements, an indication that the provinces and territories are placing their priorities on preventative measures for the time being. Only Manitoba and Ontario provided any information on enforcement services. In that province, it is handled peripherally by supervised access centres, which can provide reports to the court of participants' use of their services. This remains an area in need of development, and may become the focus in the future. Legal Aid Manitoba, subject to financial eligibility and each case's merit, will provide counsel for parents to pursue civil remedies to enforce custody and access orders. Manitoba Justice counsel submit court applications for the return of abducted children pursuant to The Hague Convention on the Civil Aspects of International Child Abduction, and will prepare outgoing requests for return of abducted Manitoba children, at no charge to the applicant parent.
Custody In British Columbia, Manitoba, New Brunswick, Newfoundland, Ontario, Prince Edward Island, Saskatchewan, and Yukon, the prime criterion in deciding custody is the "best interests of the child." Other jurisdictions use similar concepts: Quebec, the "child's interest"; Alberta, "the welfare of the minor"; Northwest Territories and Nova Scotia, "the welfare of the child." In Alberta, the main statute dealing with custody and access, the Domestic Relations Act, R.S.A. 1980, c. D-37 , does not refer to the "best interests of the child." However, s. 32(1) of the Provincial Court Act, R.S.A. 1980, c. P-20 , as amended, provides that if there is a dispute as to the custody of a child, the court may make an order having regard to the best interests of the child. In Quebec, the principle in determining custody is "the child's interests and the respect of his rights". In addition to giving consideration to the moral, intellectual, emotional and material needs of the child, the child's age, health, personality and family environment, and other aspects of his situation are also taken into account. In each jurisdiction where best interests is the main test, factors are set out to assist the courts in determining what that means. These are:
Some factors are found only in one jurisdiction. These are:
There are also factors in some jurisdictions that are not to be considered, such as:
Access Access is also determined on the basis of best interests of the child in those jurisdictions where that criterion is the main test for custody. The factors considered are essentially the same. However, in Saskatchewan, in determining whether to grant access, the courts also consider the capacity of the person seeking access to care for the child when the child is in his or her care. Saskatchewan also eliminates several factors considered in custody applications, such as: the physical, psychological, social and economic needs of the child; the capacity of the person seeking custody to act as legal custodian of the child; the home environment proposed for the child; the plans the person seeking custody has for the future of the child.
Custody
Access Access enforcement options can be somewhat different from one jurisdiction to another. Some of the available options include:
In some jurisdictions there are also provisions for failure to exercise access, such as:
There are some gaps in the legislation. Only a few jurisdictions provide sanctions for failure to exercise access. While courts generally consider that child support and access should not be linked, there is no mention of this in the legislation, and courts do occasionally suspend child support until access is granted.
Criminal Code of Canada Section 282 states that it is an indictable offence or an offence punishable on summary conviction for a parent, guardian or person with legal care of a child under 14 to abduct that child contrary to a Canadian custody order, where the alleged abductor intends to deprive a parent, guardian or other person with lawful care or charge of the possession of the child. Section 283 states that it is an indictable offence or an offence punishable on summary conviction to abduct a child under 14, regardless of whether there is a custody order in relation to that person made by a Canadian court, where there is an intent to deprive a parent or guardian or anyone with lawful care or charge of possession of the child. Proceedings under this section can only be undertaken with the consent of the Attorney General or counsel instructed by him for that purpose. The Crime of Parental Child Abduction Whether or not there is a Canadian court order of custody, if one parent takes or keeps a child under 14 years of age away from the other parent without the other's consent, he or she may be charged with parental child abduction under the Criminal Code of Canada . The consent of the Attorney General or counsel instructed by him for that purpose must be given before a parental child abduction charge can be laid where there is no Canadian custody order. There are a number of situations where a charge of abduction may be laid, even if there is no Canadian custody order:
Where the court has ordered one parent have custody of a child and the other parent takes away or keeps the child without the custodial parent's consent, that parent may be charged with abduction. A charge may also be laid if one parent with joint custody under an order takes away or keeps the child without the consent of the other joint custodial parent. A parent charged with abduction might have a defence to the charge if the action was taken to protect the child or the parent from immediate danger, or if he other parent agreed he or she could take or keep the child. It is not a defence to a charge of parental child abduction if the child wanted to go or stay with the abducting parent. Where an abduction charge is laid, a Canada-wide warrant may be issued for the arrest of the abducting parent. This means the parent can be arrested anywhere in Canada and returned to Manitoba to face the criminal charge. If convicted of the charge of parental child abduction, a parent may be imprisoned for up to 10 years.
Model Charging Guidelines and The Hague Convention The Guidelines set out circumstances where charges under s. 282 and s. 283 would be or would not be appropriate. On October 30, 1998, Federal/Provincial/Territorial Ministers Responsible for Justice adopted new Model Parental Child Abduction Charging Guidelines prepared by the Federal/Provincial/Territorial Family Law Committee, in consultation with the Coordinating Committee of Senior Officials (Criminal Justice). The Model Charging Guidelines are intended to improve the handling of parental child abduction cases, and replace earlier Parental Child Abduction Charging Guidelines approved by Canadian Ministers of Justice in 1990. They reflect significant amendments to the parental child abduction provisions in the Criminal Code , as well as developments in case law. The Charging Guidelines are advisory and provide Crown Attorneys and law enforcement agencies with guidance as to circumstances where parental child abduction charges may or may not be appropriate. The Charging Guidelines may be found at Appendix A.
The Hague Convention on the Civil Aspects If a parent abducts a child from Canada (or to Canada from another country) an international treaty called The Hague Convention on the Civil Aspects of International Child Abduction (" The Hague Convention" ) may be of assistance in having the child returned to Canada. The treaty allows custody rights (whether or not there is an order) and, to a lesser extent, access rights to be enforced internationally when the abducted child is under 16 years of age. The Hague Convention requires that children wrongfully removed from the country of their residence or wrongfully retained in another country, when the left behind parent has custody, be promptly returned to their home country. There are some limited exceptions to the requirements in The Hague Convention to the requirement to return children, such as if a child would be harmed if returned or if the child wishes to remain in the other country and is old enough to have his or her views considered. A much less stringent test applies when requests for return of a child are made more than a year after the child's removal -- the court in the other country can refuse to return the child if it feels the child is now settled in the new country. It is therefore very important to request the return of the abducted child at the earliest opportunity. Some 65 countries around the world have now signed and agreed to comply with the terms of The Hague Convention . It is in force in all Canadian provinces and territories. Additional information about The Hague Convention can be obtained from the designated federal or provincial Central Authorities in each jurisdiction. The list of Central Authorities may be found in Appendix B. |
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| Last Updated: 2005-10-28 |
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Important Notices | ||
