custody, access and child support in canada - justice · this document talks about two topics...

MARCH 2001

Custody,Access and

Child Supportin Canada

FEDERAL•PROVINCIAL•TERRITORIAL

CONSULTATION

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Part 1: Parenting after Separation or Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Roles and responsibilities of parents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Best interests of children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Family violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

High-conflict relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Children’s perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Meeting access responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Part 2: Child Support . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Child support in shared custody situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Impact of access costs on child support amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Child support for children at or over the age of majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Child support obligations of a spouse who stands in the place of a parent . . . . . . . . . . . . . . . 53

APPENDIX A: An inventory of government-based services that support themaking of enforcement and access decisions . . . . . . . . . . . . . . 56

APPENDIX B: Provincial and territorial papers . . . . . . . . . . . . . . . . . . . . . . . . . 57

APPENDIX C: Department of Justice Canada papers . . . . . . . . . . . . . . . . . . . . 59

Putting Children’s Interests First

Custody, Access and Child Support in Canada

INTRODUCTION

Children are very important to Canada’sfuture. For this reason, the federal, provincialand territorial governments want to helpparents, lawyers and judges focus on whatis best for children when making decisionsabout separation and divorce.

Even though most separating and divorcingcouples end their relationships and arrangefor the care of their children without going tocourt, family breakdown can be difficult forchildren.

This document talks about two topics relatedto separation and divorce that affect children.The first is parenting after separation ordivorce, and the second is child support.The text explains these topics and containsquestions about ways governments canimprove both the laws and the services theyoffer in these areas, so that what is best forchildren comes first when decisions arebeing made during separation or divorce.

Family Law in Canada

In Canada, federal, provincial and territorialgovernments have adopted laws that dealwith various aspects of family law, includingseparation and divorce.

The federal and provincial governmentshave specific constitutional powers withrespect to family law, and the territorialgovernments have specific responsibilitiesunder their original acts. The federal DivorceAct generally applies when divorcing parentsneed to settle child custody, access andsupport. Provincial and territorial laws applyregarding child custody, access and supportwhen unmarried parents separate or whenmarried parents separate and do not pursuea divorce, as well as to some issues indivorce proceedings. These provincial andterritorial laws contain provisions regardingparent-child relationships (parental authority,guardianship, etc.). The provinces also haveconstitutional power over the administration

1Putting Children’s Interests First


Further Reading

Selected Statistics on Canadian Families andFamily Law, Department of Justice Canada

Custody, Access and Child Support: Findingsfrom the National Longitudinal Survey onChildren and Youth, Nicole Marcil-Gratton andCéline Le Bourdais

* Survey on Arrangements Dealing withCustody and Access, Canadian Facts

See page 5 for information on how to getcopies of these research papers.

* Forthcoming

of justice, and the territories have delegatedpowers. The provinces and territories areresponsible for establishing the rules of civilprocedure and administering court serviceswithin their jurisdiction.

Federal legislation and legislation incommon law provinces and territories nowuse the same terms “custody” and “access,”and the same general legal principles applyto govern custody and access issues. Thesituation is different in Quebec, however,given the rules set out in the Civil Code ofQuebec. In Quebec, the Civil Code,following the civil law tradition, refers to theconcept of parental authority to defineparents’ rights and obligations towards theirchildren. The Code establishes the principlethat the father and mother exercise parentalauthority together when there is a marriagebreakdown, separation or divorce. It is inthe interests of the federal, provincial andterritorial governments to develop co-ordinated reforms to family law that willmaintain legislative harmony and that willavoid creating confusion and uncertainty forparents and courts.

The decisions parents make are set out in awritten separation agreement or a courtorder. Most of the time, parents can workout the arrangements by themselves ornegotiate an agreement with the help ofothers, such as lawyers or a mediator. Thisagreement can then be turned into a writtenseparation agreement or be incorporatedinto a court order. If parents cannot agree,they can go to court and have a judgedecide their parenting arrangements.

The information people provide byanswering the questions in this documentwill guide governments as they look atpossible changes to federal, provincial orterritorial laws. However, recognizing thatchanging the law cannot address all theproblems facing separating and divorcingparents, this document also asks for viewson services that would help parents andchildren.

Family Law Services

Most people are unfamiliar with legalprocesses or with the issues that need to be resolved when a couple separates ordivorces. Going to court to settle disputesabout separation and divorce, includingissues about children, can be very stressfulfor parents and children. The legal processcan be lengthy, expensive and confusing.

Across Canada, the provinces and territoriesoffer a range of services for separating anddivorcing parents to try to make the familylaw system easier to understand and use.The services are broad and flexible, in orderto help people in a variety of circumstances,and parents can use them before, duringand after the court process. The servicescover a spectrum, from simple informationabout family law to specialized assistance tokeep family members safe during separationor divorce. For a recent listing of family lawservices offered across the country, pleasesee An Inventory of Government-BasedServices That Support the Making andEnforcement of Custody and AccessDecisions, at http://www.canada.justice.gc.ca/en/ps/cca/invent/main.htm

2 Putting Children’s Interests First


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Many families going through separation anddivorce use services to help them resolvetheir disputes early, quickly and with lessconflict. Such services include the following:

• Information programs: programs thatteach parents how to promote theirchildren’s best interests through co-operation and consultation, when it issafe and positive to do so. The aim ofthese programs is to help parentsunderstand the demands and challengesof parenting after separation or divorce;to suggest new ways to communicateand resolve disputes; and to suggestappropriate alternatives to the formalcourt process.

• Mediation: an impartial, professionallytrained mediator can help parents whohave a relatively equal bargainingposition reach a mutually satisfactoryagreement on issues affecting the family.Parents who go through mediation stillneed the help and advice of a lawyer.

• Case management: this approachencourages early settlement of disputes,by having judges and others activelymanage the court process to reduceunnecessary delay and expense. Thisapproach also helps parents focus onthe issues truly in dispute, whileencouraging them to agree on others.This process can involve pre-trial orsettlement conferences between thejudge and the parents or their lawyers.

This consultation paper asks the public forinput on existing family law services so thatgovernments can get a better understandingof the kinds of services people find mosthelpful when separating or divorcing,

and dealing with custody, access and child support issues. The information peopleprovide by answering the questions in thisdocument will provide governments withvaluable information as to which servicesare most useful to families dealing withcustody and access issues.

InterjurisdictionalCollaboration

The Family Law Committee is a long-standingcommittee of government officials who arefamiliar with family law and represent eachprovince and territory and the federalgovernment. It has a federal co-chair and aprovincial co-chair and reports to the federal,provincial and territorial deputy ministersresponsible for Justice. Where necessary, its work is discussed and approved by deputyministers and ministers responsible forJustice across Canada.

The Family Law Committee is reviewinglegislation and services to find a way to helpfamilies work out the best arrangements forchildren after their parents separate ordivorce. It has adopted an integrated, child-focused approach to its work. The FamilyLaw Committee’s child custody and accessproject co-ordinates research, analysis, andpolicy and program development amongfederal, provincial and territorial policyadvisors and service providers. This projectwill also look at the recommendations of theSpecial Joint Committee on Child Custodyand Access. (You can read the Committee’sreport For the Sake of the Children on theparliamentary web site at http://www.parl.gc.ca/InfoComDoc/36/1/SJCA/Studies/Reports/sjcarp02-e.htm). The project is tobe completed by spring 2002.



Guiding PrinciplesRepresentatives of the federal, provincialand territorial governments developed thefollowing principles to guide reforms in theareas of custody, access and child support:

• Ensure that the needs and well-being ofchildren come first.

• Promote an approach that recognizes thatno one way of parenting after separationand divorce will be ideal for all children,and that takes into account how childrenand youth face separation and divorce atdifferent stages of development.

• Support measures that protect childrenfrom violence, conflict, abuse andeconomic hardship.

• Recognize that children and youthbenefit from the opportunity to developand maintain meaningful relationshipswith both parents, when it is safe andpositive to do so.

• Recognize that children and youth benefitfrom the opportunity to develop andmaintain meaningful relationships withtheir grandparents and other extended-family members, when it is safe andpositive to do so.

• Recognize the positive contributions ofculture and religion in children’s lives.

• Promote non-adversarial dispute-resolution mechanisms and retain courthearings as mechanisms of last resort.

• Provide legislative clarity to the legalresponsibilities of caring for children.

• Recognize the overlapping jurisdictionsin custody and access matters inCanada, and make efforts to provide co-ordinated and complementarylegislation and services.

Governments will assess the suggestions forchange that come from these consultationsto see whether they are consistent withthese principles. However, given thecomplicated nature of parenting issues,some changes may fit better with someprinciples than do others. Governments have agreed to work together to address thenegative consequences of separation anddivorce. Any legislative reforms will be co-ordinated with the laws of all theprovinces and territories and must respectthe Quebec Civil Code.

About TheseConsultationsWe encourage individuals and groups toread this consultation paper and answer thequestions. The paper and the feedbackbooklet are also available on the Internet(see page 5 for the address).

There will also be consultations with variousgroups across the country on some of theissues raised in this paper. Some provincesand territories will conduct consultations onother issues that reflect local law and localservice priorities.

These consultations result from the ongoingevaluation of the family law system inCanada by the federal, provincial andterritorial governments. At the same time,government officials have been looking athow well the new child support guidelinesare helping parents, lawyers, judges andothers make decisions about child support.Recent research conducted on thegovernments’ behalf provides importantbackground information about many of theissues that are considered in this document,and it forms the basis for some of theproposed options for change. In some



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sections, you will see a list of the titles ofthese research papers. Copies of thesepapers can be requested by calling 1-888-373-2222. You can find a complete list of theresearch and background papers that havebeen prepared in the appendices at the endof this document.

About This DocumentThis document is divided into two parts.The first covers issues related to parentingafter separation or divorce, and the seconddeals with child support. Each part, in turn,contains several sections, each on a specificissue. There is background information andthere are questions for you to answer ineach section.

How to Provide YourFeedbackPlease use the feedback booklet youreceived with this document to provide yourcomments. It is recommended that youconsult the booklet as you read theinformation presented here. Each page inthe feedback booklet refers to thecorresponding page in this document.

For additional copies of this document and the feedback booklet, please call 1-888-373-2222. You will also find thisdocument and the feedback booklet on theInternet at http://www.canada.justice.gc.ca/en/ps/cca/index.html

Once you have completed the feedbackbooklet, please return it in the enclosedpostage-paid envelope.

Input on custody, access and child supportissues is welcome at any time, however wewould appreciate that you return yourfeedback booklet by June 15, 2001.

Why We Want YourFeedback

Your comments will be used to inform theFamily Law Committee’s discussions on thechild custody and access project and willform part of the background to the Report toParliament that the federal Minister ofJustice will table in 2002.

For More Information

For more information about this documentand these consultations, or to order copies ofthe research reports, call 1-888-373-2222.The Department of Justice Canada’s web sitealso contains helpful information on the topicsthis paper covers.You will find the site athttp://www.canada.justice.gc.ca/en/ps/cca/index.html. The web site or information linefor the government in your province orterritory may also be able to provide you withmore information.



PART 1: PARENTING AFTER SEPARATION OR DIVORCE

Introduction

Separating and divorcing parents have to deal with many important and difficult issues,including where their children will live and how they will make future decisions about theirchildren. Each family situation is different and there are many competing interests involved.

This part of the consultation paper looks at six issues related to parenting after separation ordivorce:

• Roles and responsibilities of parents

• Best interests of children

• Family violence

• High-conflict relationships

• Children’s perspective

• Meeting access responsibilities

Each of the sections that follow looks at the laws related to the issue and asks questions abouthow governments might improve them. There are also questions about family law services toprovide governments with a better understanding of the kinds of services that would bestrespond to the needs of people dealing with parenting after separation or divorce.



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ROLES ANDRESPONSIBILITIESOF PARENTS

Current Situation

When parents separate or divorce, theymust work out how they will continue tocarry out their parenting roles andresponsibilities. Most separating anddivorcing couples are able to agree andwork out their own parenting arrangements.Others find it difficult to agree on issuessuch as where the children will live and whowill be responsible for the children’s day-to-day needs, schooling, religious education,and sports activities. It is even harder forparents to make decisions about theirchildren when there is mental illness,substance-abuse, or violence between theparents or directed at the children.

Parents turn to the law for guidance whendeveloping agreements on parentingarrangements and, when they cannot agree,to understand their options for resolving theirdisputes. The most common terms used inthe law to describe parenting responsibilitiesare custody and access. However, themeaning, definitions and understanding ofthese terms vary across Canada andbetween the federal Divorce Act andprovincial and territorial laws. Someprovinces and territories also use otherterms to describe the concept of parental responsibilities, such asguardianship and parental authority.

Currently the Divorce Act and provincial andterritorial laws all require that decisionsabout custody and access be made basedon the best interests of the children.

This allows for a wide range of parentingarrangements. Some children live all or mostof the time with one parent. Others spendequal amounts of time with each of theirparents. One parent may have responsibilityfor making decisions about the children, or the parents may share it.

With one exeption, the Quebec Civil Code,these laws do not assume that oneparenting arrangement is better for childrenthan another. Under Quebec law, whethercustody is entrusted to one of the parents orto a third person, both parents are expectedto continue to jointly exercise their parentalresponsibilities, unless the judge ordersanother parenting arrangement to meet thebest interests of the children.



Further Reading

Custody and Access Terminology: Options forLegislative Change in B.C., prepared for theBritish Columbia Ministry of the AttorneyGeneral

Focus Groups on Family Law Issues Related toCustody and Access, S.A.G.E. Research Group

Divorce Reform and the Joint Exercise ofParental Authority: The Quebec Civil LawPerspective, Dominique Goubau, Professor,Faculty of Law, Laval University

*An Analysis of Options for Changes in theLegal Regulation of Child Custody and Access,Brenda Cossman, Professor, Faculty of Law,University of Toronto


* Forthcoming

Is There a Need for aNew Legal Approach?

The stress associated with separation anddivorce can have a big impact on the healthand well-being of children. Children have aharder time adjusting to new familysituations when their parents cannot agreeon parenting arrangements. Even thoughcurrent laws promote the best interests ofchildren and require that decisions thataffect children put the children’s needs andwell-being first, some Canadians havecriticized existing custody and access laws.Here are some examples of their concerns:

• The laws encourage too many parents tofocus on their rights rather than on theirresponsibilities and, as a result, do notpromote co-operative, child-focusedparenting arrangements based on whatis best for children.

• The terms custody and access promotethe idea of a “winner” and a “loser.” Someparents tend to think only about how theycan get custody of the children instead of thinking about the specific parentingarrangements that need to be worked out.

• The varied meanings, definitions andunderstandings of the terminologycontained in Canadian laws createconfusion and uncertainty. Many peopleseem to think that the laws limit thetypes of arrangements that judges mayorder or parents may agree to.

These criticisms must be put into context.Legal responsibility for children rests withparents, and that responsibility is broad andnear absolute. Current custody and accesslaws authorize judges to make custodyorders based on the best interests of the

children. These laws allow separating anddivorcing parents to work out their ownparenting arrangements, which can beincorporated into court orders. It is onlynecessary for parents to go to court whenthere are legal disputes they cannot resolve.In reality, most parents ultimately come to anagreement about parenting arrangements fortheir children, and only a very small numberof cases end up with court-imposed custodyorders.

In addition, it is important to be realisticabout how much changing legislation canaccomplish. Practically, the law is limited inits ability to change people’s views or toresolve parental disputes, which are oftenonly partly legal in nature. Several countriesand U.S. states have made major changesto their custody and access laws in the pastdecade. Evaluation studies suggest thatchanging the law has not dramaticallychanged the way parents divide up theirparenting responsibilities, nor has it resultedin fewer parenting disputes. It seems thatlegislative amendments can attempt topromote the idea of co-operative parenting,but cannot successfully force unwillingparents to co-operate.

Another challenge for governmentsdeveloping legislative reforms relates tobalancing the benefits of predictability andcertainty with those of flexibility. While clearand consistent legal rules and predictableoutcomes are important to promoteagreements, encourage settlements anddiscourage parents’ use of strategic ormanipulative behaviour, these benefits mustbe balanced with the need for legislativeflexibility. The unique characteristics offamilies and family members mean that each



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separation and divorce experience isdifferent. No one model of parenting hasproven to be better than another for allchildren, and legislative flexibility is requiredto allow parents, professionals and judges tofully consider and respond properly to theconcrete, individual interests of children ineach case.

Please note that other sections of thisdocument discuss related issues. You mayfind it useful to read the whole paper beforeanswering any questions.

Looking at the Law

Laws such as the current Divorce Act arethe primary source of authority for judgesresolving disputes when parents cannotagree. However, many parents look to thelaw for guidance about how to work outarrangements for themselves. This section asks questions about what kind of legalprovisions you think are needed toemphasize parental responsibilities ratherthan rights, and to help parents, judges,lawyers and other professionals make betterdecisions about children.

Before you begin, here are some key pointsto consider:

• The current law in most provinces andterritories allows parents to agree to anykind of parenting arrangement that is inthe best interests of their children.

• The approaches described below are notthe only ones possible. You are invited tosuggest any others that you think wouldbe effective. Governments may selectapproaches in addition to the ones setout here for later development.

• It is important to consider the practicaleffects of any approach. For example,what other laws might be affected by achange in custody and access law? Howwill third parties who deal with children,such as teachers and doctors, interpretparenting arrangements?

There are five reform options we would likeyou to consider.



Custody, Access and Child Support in CanadaFEDERAL•PROVINCIAL•TERRITORIAL

CONSULTATION

OPTION 1

Keep Current Legislative

Terminology

QuestionsWhich of the options described below do you thinkwould best help parents and judges make betterdecisions about parenting after separation or divorce?

Keep Current Legislative Terminology

Maintain the existing terms, custody and access. Focuson developing and providing additional, improved familylaw services, and education and training about the widerange of parenting arrangements that are presentlyavailable. While many agreements and orders use theterm custody, or access, they do not have to, as longas each parent’s responsibilities are clearly described.The agreements and orders can refer to periods ofaccess for the parent with whom the children do notusually live, or they may simply refer to dates and timeswhen the children will be with that parent, without usingthe word access at all.

The objective of this option would be to improve, in apractical way, how parents, lawyers, judges and otherprofessionals approach parenting roles and the resolutionof family law disputes involving children. It would provideseparating and divorcing families with the information and assistance they need, to understand the types of arrangements they can make for the care of theirchildren, as well as education and training to help reduceparental conflict and to help protect children from some ofthe negative effects of their parents’ separation anddivorce.

This option would keep the existing terms custody andaccess, so there would be no impact on other existinglaws that use or incorporate these terms.


OPTION 1


CONSULTATIONCustody, Access and Child Support in Canada

Clarify the Current LegislativeTerminology: Define Custody Broadly

Maintain the existing terms custody and access, butdefine them differently. An open-ended list would setout the areas that make up custody, including thefollowing:

• responsibility for meeting the children’s daily needs,which include housing, food, clothing, physical careand grooming, and supervision;

• responsibility for making day-to-day decisions aboutthe children; and

• responsibility for making major decisions concerningthe children’s well-being, decisions on matters suchas residence, health care, education and religiousupbringing.

The law would provide a framework for parents andjudges to assign the aspects of custody to one parent alone or to both parents jointly, in a clear,understandable way. The parenting arrangement would not have to be described as sole or joint custody.Parenting agreements or court orders could use theword custody, but would not have to, as long as eachparent’s responsibilities are clearly described.The agreements and orders could refer to periods ofaccess for the parent with whom the children do notusually live, or they may simply refer to dates and timeswhen the children will be with that parent, without usingthe word access at all.


OPTION 2 OPTION 2

Clarify the Current Legislative

Terminology: DefineCustody Broadly


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Clarify the Current LegislativeTerminology: Define Custody Narrowly

and Introduce the New Term and Conceptof Parental Responsibility

Maintain the term custody, but restrict its meaning.Introduce the term parental responsibility, which wouldrefer to the rights and responsibilities of parents fortheir children, including but not limited to the following:

• responsibility for meeting the children’s daily needs,which include housing, food, clothing, physical careand grooming, and supervision;

• responsibility for making day-to-day decisions aboutthe children; and

• responsibility for making major decisions concerningthe children’s well-being, decisions on matters suchas residence, health care, education and religiousupbringing.

Custody would be one narrow component of parentalresponsibility — the responsibility for maintaining aresidence for the children.

Custody would determine the children’s residence, butnot how responsibility for making major decisionsconcerning the children would be exercised. Each parentwould be responsible for the day-to-day care of thechildren and for making day-to-day decisions about thechildren when they are with that parent. Agreements ororders could assign some or all components of parentalresponsibility. These responsibilities could be assigned toone parent only or to both parents jointly, depending onwhat is best for the children, taking into account theirparticular circumstances.


OPTION 3OPTION 3

Clarify the Current Legislative

Terminology: DefineCustody Narrowly andIntroduce the New Termand Concept of Parental

Responsibility



Replace the Current LegislativeTerminology: Introduce the New Termand Concept of Parental Responsibility

Replace the terms custody and access in family lawswith the new term and concept of parentalresponsibility. Judges would be authorized to issue aparental responsibility order, instead of a custody order,that would describe and allocate the exercising ofspecific aspects of parental responsibilities betweenparents. The legislation would not require that parentingresponsibilities be divided equally or exercised co-operatively. The exercise of the various responsibilitiescould be allocated exclusively or proportionately, basedon the best interests of the children. Some aspectscould be exercised jointly by both parents, while eitherparent could exercise some aspects alone. Whennecessary to ensure the best interests of the children,one parent could be given the authority to exerciseexclusive parental responsibility.


OPTION 4 OPTION 4

Replace the Current Legislative

Terminology: Introducethe New Term andConcept of Parental

Responsibility



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OPTION 5OPTION 5

Replace the Current Legislative

Terminology: Introducethe New Term andConcept of Shared

Parenting

Replace the Current LegislativeTerminology: Introduce the New Term

and Concept of Shared Parenting

Introduce the term and concept of shared parentinginto family laws. For example, the recommendation inthe Special Joint Committee on Child Custody andAccess report, For the Sake of the Children, definedshared parenting as including all the meanings, rights, obligations, and common-law and statutoryinterpretations embodied previously in the termscustody and access. This shared parenting approachwould not mean that children must live an equalamount of time with each parent. The starting point forany parenting arrangement, however, would be thatchildren would have extensive and regular interactionwith both parents, and that parental rights andresponsibilities, including all aspects of decision-making, would be shared equally or nearly equallybetween the parents. Parents wishing to begin fromanother starting point would have to show that sharedparenting would not be in the children’s best interests.

There are other possible ways the law might guideparenting after separation or divorce. Please describe inyour feedback booklet any other options that you thinkwould be effective.




LOOKING AT SERVICES

Separating and divorcing parents may needinformation and assistance to understandthe types of arrangements they can makefor the care of their children. Many peopleand organizations, such as lawyers,mediators, counsellors, public informationprograms, friends and family, can helpparents deal with the complex financial,emotional and legal issues associated withseparation and divorce.

Parent-education programs, mediation andcounselling can help at the start of theprocess when parents are trying to agree onparenting arrangements that would be in thebest interests of their children. The effectiveuse of services can reduce parental conflictand protect children from some of thenegative effects of their parents’ separationand divorce. Research has shown thatparental co-operation and low levels ofconflict are in the best interests of children.

Once parents have an agreement or courtorder setting out their parenting arrangement,they may still require support, education, and counselling to work through the difficultiesof their new situation. Even after the initialconflict is resolved, many parents may find itdifficult to co-operate and abide by theirparenting agreement.


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Information Services

Parent education: these programs help separating anddivorcing parents understand the legal, personal, andparenting issues that arise during separation anddivorce. They also provide information on the waysseparating and divorcing parents may care for theirchildren.

Public and family law information centres: these centresoffer a range of written materials and videos onseparation and divorce. They may also provide servicesfor parents and children.

Self-help materials, kits or public information documentson parenting roles: these are available in a number ofpublic places, including courthouses, depending on theprovince or territory. A parenting-skills workbook onseparation and divorce issues for families, for example,might help parents develop positive parenting,communication and conflict-resolution skills, and assistparents in resolving disputes and developing aparenting plan.

Information programs for children: these programs helpchildren understand and respond to issues that affecttheir care and their relationships with parents andothers.

Support Services orApproaches

Counselling for parents: this covers angermanagement, conflict resolution, debt reduction,substance abuse, and employment.

Legal aid: this service provides legal advice orrepresentation to financially eligible parents.

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Please check the six services from the list below that you thinkare most important for helping families involved in separationand divorce.




Child advocates or child legal representatives: childadvocates may intervene in a broad range of familymatters, including custody and access proceedings topromote the interests and well-being of children.Children’s representatives present the children’s viewsand preferences on parenting arrangements.

Special courts: these deal only with family andchildren’s matters.

Supervised access and exchange centres: thesecentres offer a safe, supervised environment forchildren’s access and for parents to drop off and pickup their children.

Dispute ResolutionServicesMediation: parents who have relatively equal bargainingpower work with a neutral person to reach anagreement on parenting arrangements.

Assessments: when parents cannot agree on custodyand access arrangements, a judge may order or theparents may accept an independent expert, such as apsychologist or social worker, to assess the parents’and children’s situation.

Case managers and workers: these people helpparents review their written agreement or court orderregularly, to see if there are problems or changes incircumstances that need to be addressed.

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If you have had any personal experience with any of theseservices, please comment in your feedback booklet on how usefulthe services were in encouraging parents to make their ownparenting arrangement, and to focus on the needs and bestinterests of their children.

Please also describe in your feedback booklet any other familylaw services that you think would be useful to help clarifyparental roles and responsibilities, and to encourage parents’positive involvement and co-operation.

BEST INTERESTS OFCHILDREN

Family laws in Canada are based on theprinciple of the “best interests of the child.”Those people making decisions that affectchildren during and after separation anddivorce must take the children’s bestinterests into account.

Some, but not all, provincial and territoriallaws list specific factors that parents are tolook at when making decisions about theirchildren. These factors include children’sages, special needs, relationships with theimportant people in their lives, the role ofextended family, cultural issues, the historyof the parenting of these children and thefuture plans for the children.

Currently, the federal Divorce Act does notset out factors that parents should considerwhen determining the best interests ofchildren. Some people think that it should.A list of factors might educate people aboutthe things that they should consider whenmaking decisions that affect children.

There are varying opinions on this issue.Some say that listing factors would notincrease the predictability of outcomes nordecrease litigation. In fact, in comparingjurisdictions that have a list of factors withthose that do not, there is little realdifference in the types of orders issued.Adding a few key factors could be helpful,but having too many might be too long anddifficult to be useful.

This section looks at whether adding factorsto the section of the Divorce Act that covers“best interests of the child” would be helpfuland, if so, what those factors could be.



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Further Reading

Focus Groups on Family Law Issues Related toCustody and Access, S.A.G.E. Research Group

See page 5 for information on how to getcopies of this research paper.




Looking at the Law

Do you think that adding factors to the “best interests” section ofthe Divorce Act would help people make decisions aboutchildren that are in the children’s best interests?

Yes

No

Why?

If yes, please check the 10 factors from the list below that youthink are most important in helping people make decisions thatare in the best interests of children.

Factors Related to the Children Themselves

Children’s age and stage of development

Children’s health

Children’s special needs

Children’s cultural, ethnic, and religious or spiritualbackground

Children’s views and preferences

Children’s personalities and abilities to adjust to thenew way their parents have arranged to care for them

Children’s current and future educational requirements

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Factors Related to the Children’s Relationshipswith Others

Relationships with siblings

Relationships with parents

Relationships with other members of the family

Relationships with any person involved in the children’scare and upbringing

Relationships with the community

Factors Related to Parenting of the Children inthe Past

History of the parenting of the children

Past conduct of parents that is relevant to theirparenting abilities (including violence and abuse inintimate relationships)

Factors Related to the Future of the Children

Ability of parents to meet ongoing and developmentalneeds

Ability of parents and other involved people to co-operate

Potential for future conflict

Potential for future violence affecting the child

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Please describe in your feedback booklet any other key factorsthat you think would help people make decisions that are in thebest interests of children.



FAMILY VIOLENCE

Family violence can take many forms,including physical violence or threats, sexualabuse, and emotional or psychologicalharm. Children can experience familyviolence directly as victims of abuse by aparent or sibling. They can also experienceviolence indirectly as witnesses to violenceby a parent against another family member.Sometimes they experience both.

Family violence in any form is particularlyharmful to children, no matter how theyexperience it. Research has shown thatchildren who witness violence by one parentagainst the other often suffer emotionaltrauma, find it hard to deal with others, showincreased aggression, have fewer closeemotional ties, and experience disruptedparenting. These children are also at greaterrisk of becoming victims and perpetrators ofviolence themselves.

The presence of family violence can makethe issues and choices separating ordivorcing parents face even more complex.It is important for governments to askCanadians about family violence – to helpthem assess what impact the presence ofpast or current family violence should havein determining the roles and responsibilitiesof parents at the time of separation ordivorce.

There are ways in which the legal systemcould respond to the presence of familyviolence when parents are separating ordivorcing, including the following:

• Specialized assistance or services couldbe provided to these families. Currently,

provinces and territories already providesuch services in emergencies throughshelters and transition homes. Long-termcounselling and support programs arealso available.

• The law could offer specialized assistanceto victims of domestic violence. Currently,certain provinces and territories havelegislation in place that defines familyviolence in order to offer victims a higherlevel of protection through such measuresas emergency protection orders.

• The law could state whether or not family violence would be a relevantconsideration when making parentingarrangements and, if so, under whatcircumstances and to what extent.

Most provincial and territorial family laws donot specifically say that judges must takefamily violence into account when resolvingparenting disputes. However, judges oftendo. Only the laws in Newfoundland and theNorthwest Territories require a judge hearinga custody or access application to takefamily violence into account. For example,the Newfoundland Children’s Law Actrequires judges to consider whether aperson has ever acted violently towards hisor her spouse or child when assessing thatperson’s ability to act as a parent.

Currently, the Divorce Act says that, afterdivorce, children should have as muchcontact with each parent as is consistentwith their best interests. The law also saysthat judges must take into account thewillingness of each parent to facilitatecontact between the children and the otherparent when making parenting decisions.



CONSULTATION

The provision reflects a general assumptionthat the needs and interests of the childrenare best met when the children maintainsignificant contact with both parents.This principle has been controversial.Some have argued that this provision,known as the “maximum contact provision,”is unfair and creates dangerous situationsbecause it does not require judges to thinkabout the possibility of family violence.

Here are some examples of how familyviolence is being taken into account inparenting arrangements around the world:

• The Australian Family Law Act includesfamily violence as one of a number offactors to consider when determiningchildren’s best interests.

• New Zealand and several American stateshave provisions in their laws, referred to as“rebuttable presumptions,” that limit a

violent parent’s role in his or her children’slives, unless the parent can prove thatsuch a limit is not in the children’s bestinterests. The degree to which the parent’srole is limited varies. Judges in NewZealand, for example, generally do notorder custody or access, other thansupervised access, to a violent parent.

• The law in California uses a combinationof approaches. It contains a generalstatement that exposure to violenceharms children; includes family violenceas a factor to be considered whendetermining children’s best interests; andhas a rebuttable presumption againstordering custody to a violent parent.

This section looks at how governments couldrespond to situations of family violence whenparenting decisions are being made.




Make no change to the current law.

Include a general statement in the law thatacknowledges that children who are victims of violenceor who witness violence are negatively affected, and that family violence poses a serious safety concernfor parents and children.

Make family violence a specific factor that must beconsidered when looking at children’s best interests,and when making parenting decisions. The degree towhich contact and decision-making are limited could beset out in the law or left to the judge to decide.

Establish a rebuttable presumption of limited parentalcontact and a limited decision-making role for a parentwho has committed family violence. This means that,when a parent has committed family violence, his orher contact with the children, as well as his or her rolein making decisions concerning the children, will belimited in some way, unless the parent can prove thatthis would not be in the children’s best interests.

Restrict the impact of the “maximum contact” provisionby moving the principle from section 16(10) of theDivorce Act into the section that deals with the “bestinterests of the child.” This way, judges would balancethe principle of maximum contact with other importantcriteria related to the best interests of children. Withinthe context of family violence, judges would not takeinto account the willingness of each parent to facilitatecontact between the children and the other parent.This helps the victim of abuse not to be afraid to raisethe issue of violence.

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Looking at the Law There are several approaches governments could take topromote child-centred decision-making in situations of violenceto ensure the safety of children and others. Which of thefollowing approaches would best serve that purpose?





A combination of the above. Please specify in yourfeedback booklet which of the approaches you wouldcombine.

Please describe in your feedback booklet any other legislativeapproaches that you think would be helpful to ensure that familyviolence is taken into account when parenting decisions arebeing made on separation or divorce.

Looking at Services Please check the six services from the list below that you thinkare most effective in ensuring that the issue of family violenceis addressed when parenting decisions are being made afterseparation or divorce.

Information and Education Services

Education on family violence for parents and children:this usually involves workshop-type sessions to improveparents’ and children’s understanding of the impact offamily violence.

Information for professionals: this refers to resourcematerial that is distributed to individuals andorganizations such as judges, family-law lawyers,mediators, law libraries, law associations, publiclibraries, family-service organizations, resource centresand all family-court offices. This could also includetraining sessions for professionals.

Support Services

Counselling for children: this usually consists ofprograms that children can attend to focus on issuesthat relate to witnessing conflict and violence.

Counselling for parents: this covers angermanagement, conflict resolution, debt reduction,substance abuse and employment.


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Psychological assessments: these identify and provideunderstandings of children’s needs and the parents’willingness and ability to meet those needs. Theassessor’s recommendations may help parents reach asettlement or help a judge make an order.

Supervised access and exchange centres: these offer asafe, supervised environment for children’s access andfor parents to drop off and pick up their children.

Psychological services for parents and children.

Partner-assault response programs: these offer group-counselling for the assaulting partner and teachalternate means of dealing with conflict. Theseprograms are often a compulsory component of acriminal conviction for domestic assault.

Other Services

Expedited court procedures: a finding of family violenceplaces the court case in a faster stream for resolution.In addition, parents do not have to go to mediation, and they take different parent-education programs fromthose other parents attend.

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If you have had any personal experience with any of theseservices, please comment in your feedback booklet on howuseful the services were in ensuring that family violence istaken into account when parenting decisions are being made.

Please describe in your feedback booklet any other family lawservices that you think would be useful to ensure that familyviolence is taken into account when parenting decisions arebeing made.

HIGH-CONFLICTRELATIONSHIPS

Almost all couples experience some level ofconflict during separation and divorce.The degree of interpersonal and legalconflict varies widely and conflict levels canchange depending on the issues the parentsare dealing with. Conflict can range fromone parent belittling the other parent’svalues to vicious verbal attacks and threatsof violence, and can be as extreme as directthreats to the emotional well-being andphysical safety of the children, or eitherparent.

Exact numbers are not known, but researchsuggests that about 10-to-15 percent of allcouples exhibit a high level of legal andinterpersonal conflict around the time ofseparation or divorce. The longer it takes tosort out the issues raised by the separationor divorce, the greater the chance that the conflict will continue and get worse.For some, high levels of conflict continue foryears. High-conflict parents may have seriousunderlying problems, such as emotional,mental-health or substance-abuse problems.High-conflict cases consume a large amountof court time and services.

Research also shows that the level andintensity of parental conflict is a veryimportant factor in children’s adjustmentafter separation or divorce. Parents who co-operate after they separate increase thechances that their children will have closerelationships with both of them and will copesuccessfully with the separation or divorce.Parental conflict and lack of co-operationhave a negative effect on children’sadjustment after separation or divorce.

When the parents’ interpersonal strugglestake centre stage, children’s needs are notgiven adequate attention.

The more intense, pervasive and open theconflict between the parents, the greater thedamage to children. Equally damaging is asituation in which the children areencouraged to take sides or report on aparent, because they become the focus of,and the unwilling participants in the conflict.When there is a very high level of conflict,disputes may involve false allegations ofabuse, parental alienation (when one parentactively attempts to exclude the other parentfrom the children’s lives), or even abductionof the children by a parent.

High-conflict parents may also have difficultyseeing their children’s needs as separatefrom their own and have long-term difficulty



CONSULTATION

Further Reading

Assessing, Serving and Maintaining ParentingArrangements for High-Conflict Families,Charlene LaFleur-Graham, Policy Planning andEvaluation, Saskatchewan Justice

Allegations of Child Abuse in the Context ofParental Separation: A Discussion Paper,Canadian Research Institute for Law and theFamily

*The Early Identification and Streaming ofCases of High-Conflict Separation and Divorce:Review, Ron Stewart, Family TherapyAssociates


* Forthcoming




co-parenting and communicating with one anotherabout their children after separation or divorce. Theseparents may also rely too much on their children tomeet their emotional needs.

It has been suggested that improvements to the familylaw system are required to protect children from thenegative effects of high levels of conflict between theirparents. Specific approaches that have been triedinclude parent education programs for high-conflictparents, supervised access and exchange centres, andintensive court management of high-conflict cases.

Looking at the Law

While federal and provincial laws may differ in wording andstyle, they all use the “best interests of the child” principle todetermine parenting arrangements. There are currently nospecific provisions to deal with high-conflict situations.

There are a number of approaches governments could take topromote child-centred decision-making in high-conflict cases.Which of the following approaches would best do this?

The law should include no specific provision. Changesto address high-conflict cases could have negativeeffects on the majority of parents who co-operate. Thefocus should instead be on making changes to supportparents who can reach co-operative solutions.

The law should say that, when judges are concernedabout ongoing high-conflict parenting disputes, theyshould be able to set out in the court order veryspecific and detailed parenting arrangements to providea regular routine and autonomy for each parent’s timewith the children.

The law should say that, when judges are concernedabout ongoing high-conflict parenting disputes, theyshould be able to specify in the court order a dispute-resolution mechanism that the parents are to use.

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CONSULTATION


The law should discourage arrangements requiring co-operation and joint decision-making when there areconcerns about ongoing high-conflict parentingdisputes. The law could say that these arrangementswould not be in children’s best interests.

The law should include a combination of the aboveapproaches. (Please specify in your feedback bookletwhich of the approaches you would combine.)

Please describe in your feedback booklet any other legislativeapproaches that you think would be helpful to address high-conflict situations.

Looking at Services

Please check the six services from the list below that you thinkwould be most effective in helping parents avoid high levels ofconflict and minimizing the harmful effects of conflict onchildren.

Information and Education Services

Parent education: specialized programs for high-conflictparents that provide information about the negativeeffects of ongoing conflict on children, and includeparenting and conflict-resolution skills training.

Education and support groups for children: these helpchildren understand and cope with the high-conflictsituation.

Services to Promote Prompt Handling of High-Conflict Cases

Intake co-ordinators: properly trained front-line courtworkers who facilitate early identification of high-conflictcases and referral to services.

Specialized case management and controlled courtprocedures for high-conflict cases, along with access toclinical expertise to facilitate faster final decisions.

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Support Services for Parents and Children


Supervised access and exchange centres: these offer asafe, supervised environment for children’s access andfor parents to drop off and pick up their children.

Therapeutic access centres: these offer intervention bya mental-health professional as part of the visit.

Specialized therapeutic mediation: parents who haverigid and very different ideas about their children’sneeds and those who have a general distrust of eachother do not succeed in reaching an agreement throughmediation. These parents require a more therapeutic orimpasse-directed mediation process, that bringscounselling and mediation together. This approachallows parents to focus on resolving deeper issues, so they can reach sound agreements based on propernegotiation strategies and make psychologically soundarrangements. Interventions include counselling andspecialized assessment and evaluation procedures.

Initial and ongoing psychological intervention andassessments: professionals determine the level andcause of conflict and the level of risk associated withthe conflict, and suggest responses to help the parentsreduce the level of conflict.

Programs to promote a self-managed parenting plan:parents can directly or indirectly agree on parentingdetails to avoid misunderstandings or to establishcommunication rules.

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If you have had any personal experience with any of theseservices, please comment in your feedback booklet on how usefulthe services were in reducing conflict and helping parents focuson the needs of the children.

Please describe in your feedback booklet any other family lawservices that you think would be useful to reduce conflict andhelp parents focus on the needs of the children.

CHILDREN’SPERSPECTIVES

Children are directly affected by decisionsparents and judges make during separationand divorce. Understanding the children’sperspectives of the way parents propose tocare for them is essential if children’s bestinterests are to remain the central focus ofdecision-making. There are varying opinions,however, about when and how to best hearchildren’s views.

There are several aspects of this issue that need to be considered. One relates todecisions about how children’s views shouldbe heard when parents are negotiating their own agreement or are going throughmediation. It is important for children’s well-being that parents learn how to listen to theirwishes and take them into account whenmaking decisions, without making thechildren decision-makers. Parents shouldconsider factors such as the age and maturityof the children, their ability to communicate,and their emotional state. Discussing livingarrangements with children without makingthem decision-makers will allow them to feelthat they are being listened to, and may evenhelp ensure that the agreement between theirparents lasts longer.

Another aspect of the issue is howgovernments can provide for children’s inputinto legal proceedings. Article 12 of theUnited Nations Convention on the Rights ofthe Child, which Canada signed in 1991,reads as follows:

1. State parties shall assure to the childwho is capable of forming his or her ownviews the right to express those views

freely in all matters affecting the child,the views of the child being given dueweight in accordance with the age andmaturity of the child.

2. For this purpose, the child shall inparticular be provided the opportunity tobe heard in any judicial andadministrative proceedings affecting thechild, either directly, or through arepresentative or an appropriate body, ina manner consistent with the proceduralrules of national law.

This means that governments shouldrecognize that children who are capable offorming their own views, depending on theirage and maturity, have the right toparticipate in a meaningful way in decisionsthat affect their lives. This participation maybe direct (the children speak for themselves)or indirect (someone else presents thechildren’s views or interests).

In Canada, the family law system currentlyprovides a number of ways children’sperspectives may be heard, including havingjudges speak directly with the children,custody and access assessments, andthrough lawyers or others representingchildren’s interests.



CONSULTATION

Further Reading

The Voice of the Child in Divorce, Custody andAccess Proceedings, Ronda Bessner, Legaland Policy Consultant

See page 5 for information on how to getcopies of this research paper.




Some provinces and territories have models of legalrepresentation for children, including the following:

• The child advocate or lawyer: a lawyer representschildren in cases that meet specific guidelines andcriteria. Children are treated as clients and thelawyer ensures that each child’s interests, wishesand preferences, along with relevant evidence aboutthe child, are communicated to and understood byeveryone involved.

• The amicus curiae, or friend of the court: a neutralperson appointed by a judge does not act as anadvocate for the children, but rather helps the judgeby gathering relevant information and expert reportsabout the facts of the case and the circumstancesand best interests of the children.

• The family advocate: government-appointed lawyerswho act in children’s best interests. The children arenot clients.

Psychological assessments: prepared by aprofessional, these identify and provide anunderstanding of the children’s needs, views andpreferences. The assessment report may help parentsreach a settlement, or help the judge if they go to court.

Parent education: these programs explain theimportance of hearing and understanding the children’sperspectives on how parents will divide parenting rolesand responsibilities.

Education and support groups for children: these helpchildren cope with their parents’ separation or divorce.

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Looking at Services andApproaches

Please check the five services from the list below that you thinkwould be most effective in ensuring that children’s perspectivesare heard and understood.


CONSULTATION


Workbooks, self-help kits and parenting plan models:these cover considerations and options to encourageparents to appropriately involve their children in discussions about parenting arrangements, eitherdirectly or through a representative.

Guidelines or training for mediators: these help ensuremediators consider the children’s perspectives whendeveloping mediation agreements with parents.

Specific training for lawyers and others who work withchildren: this helps ensure that these professionals arequalified to work with children and understand orinterpret their views.

Legal or other representation for children involved indisputes about parenting after separation or divorce.


Dispute-resolution processes such as mediation: theseservices and approaches encourage parents toconsider when children should be present fordiscussions, or when it is appropriate for them toparticipate in decisions about parenting.

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If you have had any personal experience with any of theseservices, please comment in your feedback booklet on howuseful the services were in ensuring that children’s perspectiveswere considered when decisions were being made about theway parents would care for them.

Please describe in your feedback booklet any other family lawservices that you think would be useful to help ensurechildren’s perspectives are considered when parentingdecisions are being made.

In what circumstances should legal or other representation beprovided for children?



MEETING ACCESSRESPONSIBILITIES

Problems arise when parents fail to abide bythe terms of their written agreement or courtorder and deny access or fail to exerciseaccess rights. This may happen for manyreasons, including a misunderstanding aboutwhat the agreement or order requiresparents to do.

Access problems can range from relativelyminor incidents of access being denied on aparticular occasion, because the children are ill, for example, to serious high-conflictdisputes between parents. Disruption of theparent-child bond through a parent’s failureto exercise access is also a significantproblem. Research shows that seriousproblems with access are much more likelyto occur when there is a history of abuse orhigh conflict between the parents.

While approaches differ, many provincesand territories have specific laws regardingaccess enforcement. Provincial andterritorial enforcement rules apply to courtorders made under the federal Divorce Act.

There are several ways to deal with accessproblems. These include supervised access,mediation, court-ordered assessmentreports, scheduled time to make up for lostaccess time, reimbursement of expenses,variation of the custody order, and fines orimprisonment to respond to deliberate,unreasonable non-compliance. However,judges rarely imprison parents as they donot see it to be in the children’s bestinterests.

Currently, applying the “best interests of thechild” principle appears to be an importantfactor in how judges decide on appropriateenforcement measures. Responding toaccess issues is generally acknowledged tobe very different from enforcing a support orjudgment debt.

Similarly, there is reluctance to link theobligation to pay support to the entitlementto or exercise of access because it is notusually considered to be consistent with thebest interests of children. The prevailingview appears to be that it is not generally inthe best interests of children to force anunwilling parent to visit them.

Access is the children’s right. Parents’interests should not take priority overchildren’s best interests when it comes toenforcing access. This section looks at howlaws and services dealing with accessenforcement can protect children’s rightsand best interests most effectively.

Further Reading

*Overview and Assessment of Approaches toAccess Enforcement, Martha Baily, Faculty ofLaw, Queen’s University

*The Problem of Access: Legal Approachesand Program Supports, Pauline O’Connor,Policy Research Consultant

Use of Dispute Resolution in AccessEnforcement Effectiveness, Description ofModels, and Policy Issues, prepared for theBritish Columbia Ministry of the AttorneyGeneral


* Forthcoming


CONSULTATION


Looking at Services

Please check any one or more of the following services thatyou think would be most effective in encouraging parents to liveup to their parenting responsibilities.

Parent education: these programs help improvecommunication between parents and help them betterunderstand their respective responsibilities to theirchildren at the time the access order is made.

Parenting skills courses: these programs help alleviateconcerns about the capacity of parents to properly carefor their children, and help parents establish anongoing support network.

Counselling: counselling sessions can help parentsdeal with underlying problems.

Model access orders: these help people develop clearand appropriate access orders.

Public education: these courses teach people theconsequences of not complying with court orders.

Early identification, screening and assessment ofdifficult cases: these procedures help identify difficultcases and refer parents to appropriate services.

Assessment: this service helps determine thechildren’s current needs and circumstances.

Supervised access and exchange centres: these offera safe, supervised environment for children’s accessand for parents to pick up and drop off their children.



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If you have had any personal experience with any of theseservices, please comment in your feedback booklet on howuseful the services were in ensuring parents lived up to theirparenting responsibilities.

Please describe in your feedback booklet any other family lawservices that you think would be useful to help ensure parentsfulfill their parenting responsibilities.

Looking at the Law

Please check any one or more of the following legislativeapproaches that you think would be most effective inencouraging compliance with access orders.

Require the non-complying parent to give the otherparent access to the children to make up for the timehe or she missed.

Require the non-complying parent to deposit money orother valuables with the court, which the parent wouldforfeit if he or she fails to allow access.

Require either parent and/or the children to attend aneducational seminar, parenting course, counselling orother similar type of session, and provide proof thatthey did.

Allow the judge to appoint a mediator to help resolvethe dispute.

Require the non-complying parent to reimburse theother parent for any costs he or she has as a result ofthe denial of access.

Fine the non-complying parent an amount for each daythat access has been or is being denied, up to amaximum. If the parent does not pay, the judge mayorder that he or she be sent to prison for up to amaximum time.

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CONSULTATION


Imprison the non-complying parent continuously orintermittently, up to a maximum time, for denyingaccess.

Direct an enforcement officer to help a parent obtainaccess to the children when the judge is satisfied,based on the non-complying parent’s history of denyingaccess or other grounds, that he or she will denyaccess.

Direct either or both parents to do anything the judgeconsiders appropriate in the circumstances toencourage them to comply with the access order.

Please describe in your feedback booklet any other legislativeapproaches that you think would be useful to encourageparents to fulfill their parenting responsibilities.

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PART 2: CHILD SUPPORT

Child support guidelines are rules and tables that help parents and others figure out how muchchild support a parent will pay after separation or divorce. The guidelines were developed tohelp parents predict the amount of child support a judge would likely set, and to ensure thatchildren in similar situations are all treated the same when it comes to child support. TheDivorce Act and most provincial and territorial laws include guidelines. It is important to note thatQuebec has adopted its own child support guidelines and, as a result, certain questions in thisconsultation paper do not apply to Quebec’s guidelines.

As part of the legislation that made the child support guidelines law, the federal Minister ofJustice committed to reviewing the guidelines and reporting back to Parliament about them inMay 2002. To gather information for this review, federal government officials meet regularly withtheir provincial and territorial counterparts, with the legal community through organizations suchas the Canadian Bar Association, and with the public, parents and other interested parties,through formal and informal consultations.

This part of the consultation paper looks at four issues related to child support:

• child support in shared custody situations;

• the impact of access costs on child support amounts;

• child support for children at or over the age of majority; and

• child support obligations of a spouse who stands in the place of a parent.

Each issue is discussed in a separate section, which contains background information on theissue, sets out the specific points of concern, and reviews what governments have heard on theissue from various parties over the years. Each section also contains a series of questions foryou to answer in your feedback booklet.



CONSULTATION

CHILD SUPPORT INSHARED CUSTODYSITUATIONS

When children live with each parent close tothe same amount of time after separation ordivorce, the overall parenting costs arehigher. This is partly because both parentsin these shared custody situations oftenhave to provide a home for the children.The parents may also each have expensesfor other important items such as food,transportation and clothing.

Currently, the child support guidelines havea special rule for determining the amount ofchild support in shared custody situations.To use the shared custody rule, a parentmust exercise access to, or have physicalcustody of the children for 40 percent ormore of the time in a year. This rule sets outthe factors that parents and others shouldconsider when determining the child supportamount (such as the extra costs and uniqueaspects of shared custody arrangements)while maintaining flexibility.

This section looks at two issues related to child support and shared custody situations.The first is how to decide whether theparents really have a shared custodyarrangement. The second is determining thechild support amount.

Determining Whetherthe Shared CustodyRule Applies

Some people say there are problems withusing only time to determine whether theshared custody rule applies. In particular,

they say that the rule links the amount ofchild support with the amount of time aparent spends with his or her children.Many people believe that this causesparents to fight over the amount of time theyeach spend with the children, and that thesedisputes are much more difficult to resolvethan disputes over child support issuesbecause of the emotions involved.

In fact, the shared custody rule was notintended to change the long-standing legalprinciple that child support and custody areunique issues that parents should deal withseparately. Parenting arrangements shouldbe based on what is best for children, not onwhat will benefit either parent financially.

Some people say judges should look atfactors other than time when deciding whetherthe shared custody rule applies. This isbecause they believe that there is more toparenting than just how much time parentsspend with the children. Other factors judgescould look at include how the parents sharethe children’s expenses, whether the childrenhave two main homes, and which parentlooks after the children’s needs.

On the other hand, some people argue thatadding more factors would only complicatethings. More factors would mean morethings for parents possibly to fight about,making agreements harder to reach andperhaps leading to longer and moreexpensive court procedures.

Still other people feel that time should notbe a factor that judges consider whendetermining whether the shared custody ruleapplies.




Below, you can tell us which factors you think judgesshould use to determine whether the shared custodyrule applies.

A related problem, as some people and judges havecommented, is that the 40 percent figure in the sharedcustody rule is arbitrary and the amount of time parentsspend with the children is hard to determine accurately.In fact, the guidelines provide no instructions forcalculating it. In addition, it is the actual amount of timethat parents spend with the children that judges look at,not what the written agreement or court order says.Some people feel that it would be better to make thedefinition of the time element more flexible, and givejudges more discretion when deciding whether theshared custody rule applies.

Questions

What factors do you think judges should look at when decidingwhether the shared custody rule applies?

Judges should look only at the amount of time eachparent spends with the children.

Judges should look at several factors, including time.Other factors could include whether the child has twomain homes, and how parents share the children’sexpenses and child-care responsibilities such as directcare and supervision, arrangements for health care,school, daycare, out-of-school care and extracurricularactivities, supervision of homework, and purchase andmaintenance of clothing.

Judges should not look at the amount of time eachparent spends with the children. They should look onlyat factors related to how the parents shareresponsibility for the children’s expenses and sharechild-care responsibilities, such as those describedabove.

Other (please explain)

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CONSULTATION

The children must spend at least 40 percent of theirtime with each parent.

The children must spend “substantially equal” time witheach parent.

Other (please explain).

Determining the ChildSupport Amount

Under the child support guidelines, judges must look atthree things when determining the amount of childsupport in shared custody situations:

• the amount set out in the provincial and territorialchild support tables, by income, for each parent;

• the increased costs of the shared custodyarrangement; and

• the means and needs of the parents and thechildren.

Judges have wide discretion when deciding the childsupport amount in shared custody situations. This isbecause shared custody situations include manyparenting arrangements. The costs to each of the

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Why?

If time continues to be a factor that judges look at whendeciding whether the shared custody rule applies, what is thebest way to define it?

Why ?




parents can vary greatly depending on the exact natureof their parenting arrangement.Figuring out how to calculate the child support amountin shared custody situations can be very difficult andmany people have suggested ways to make it simpler.

Questions

Which of the methods below for determining the childsupport amount do you think would work the best forparents in shared custody situations? You may choosemore than one of these methods.

A. Some people believe that, when parents sharephysical custody of their children equally, neitherparent should pay child support.

B. Others argue that the child support amount shouldbe set to make the standard of living of bothhouseholds the same.

C. Many people think that a formula would be the bestway to recognize the increased costs of a sharedcustody arrangement.

D. Others believe that judges should have discretion,as they do now, when setting the amount ofsupport, because a formula may not apply fairlyacross the range of the many parentingarrangements families with shared custody have.

E. Another option is for judges to look at lists theparents prepare of their expenses related to thechildren. This is what judges did before the childsupport guidelines were introduced.

Why?

Please describe in your feedback booklet any other method youthink would be effective and explain why it would work.



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IMPACT OF ACCESSCOSTS ON CHILDSUPPORT AMOUNTS

There are two types of costs parents have,related to access:

• costs related to the time a parent haswith the children; and

• expenses the parent has, to exerciseaccess.

Costs for access time tend to reflect theamount of time a parent spends with thechildren. When the parent who pays childsupport spends a lot of time with the children,he or she might have significant costs for thisaccess. On the other hand, when the payingparent spends little or no time with thechildren, the receiving parent may havefinancial and hidden costs on top of his or her regular costs. Examples of hidden costsinclude loss of career-advancementopportunities and reduced ability to earnovertime pay.

Access expenses are usually large lump-sum amounts the paying parent has to payto exercise access. An example of theseexpenses is airfare for the parent or thechildren when the two parents do not livenear one another.

When parents have unusually high accesscosts (either related to time or largeexpenses), the guidelines provide a way thatparents can try to accommodate them. Whensuch costs, combined with the amount ofsupport the parent pays according to thechild support tables, could create hardship foreither parent or for the children, a parent canuse a section of the child support guidelinesto get the child support amount changed.

The parent claiming undue hardship has toprove to a judge that the hardship he or shewould suffer is significant (undue) and thathis or her household’s standard of living isnot higher than that of the other parent’shousehold. If the parent’s claim issuccessful, the judge might then lower thechild support amount to take into accountthe paying parent’s unusually high accesscosts.

Parents, judges and others have said thatthere are problems with the undue-hardshipprocess. In particular, the calculations theparents have to do to evaluate theirstandard of living are complicated. It is alsohard to assign a dollar amount to elementsof a person’s standard of living.

Given these challenges, some people havesaid that there needs to be another, simplerway to take access costs into account whendeciding on child support.

Other people, who feel that the undue-hardship process is not the best way to dealwith access costs, see problems for thereceiving parent when the paying parentexercises very little or no access. Thesepeople say that the undue-hardship processdoes nothing to help receiving parents whomay have extra expenses related to thechildren because the other parent does nothave the children very often. The undue-hardship process is not effective for theseparents because, although case lawrecognizes that receiving parents may makean undue-hardship claim, most have beenunsuccessful, again because it is difficult todetermine the exact dollar amount of theexpenses in question.



Still other people have said that unduehardship should not be changed toautomatically decrease the child supportamount when the paying parent exercisesaccess often, since the receiving parent’sexpenses may not decrease. An increase ina paying parent’s access time may have littleor no impact on the receiving parent’s majorexpenses, such as housing.

Judges have dealt with access costs in waysother than those in the guidelines. In somecases, judges have shared these costsbetween the parents as part of the accessorder. That way, judges do not change thechild support amount, and the parents candecide between themselves whether thereceiving parent’s share of the access costswill be paid by deducting it from the childsupport amount, or some other way.

Costs Related toAccess Time

The child support guidelines recognize thatthe paying parent’s costs related to accesstime are offset by the receiving parent’sdirect and hidden costs. As a result, judgesdo not tend to adjust the child supportamount to accommodate most parents’access costs.

However, some parents who care forchildren close to 40 percent of the time overa year believe they should not have to paythe full child support amount. Others believethat reducing child support amountsaccording to access time could lead to morelitigation.

If the guidelines did include anotherapproach, there is the question of what thatapproach would be. Any approach thatincludes a formula would necessarily requiretrade-offs between simplicity and fairness. Itmay also be difficult to determine how muchtime a parent must care for the childrenbefore the amount of child support can bechanged, given the fact that the guidelinesalready recognize that a paying parent willspend time with the children. It is difficult toimplement perfect mathematical solutions ina simple, user-friendly manner. A complexformula may appear to be so complicatedthat judges will not use it at all, or it mayresult in incorrect calculations. On the otherhand, simpler mathematics may lead to lessaccurate results.

Below are questions about whether the childsupport guidelines should provide a differentway to take unusually high or unusually lowaccess costs into account when determiningthe child support amount.


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Questions

Should the child support guidelines be changed to introduce anew way to take into account the costs related to unusuallyhigh access time when determining child support?

Yes

No

Why?

If yes, how should the child support amount becalculated?

It should be left to the judge’s discretion.

There should be a formula. The judge should have nodiscretion.

There should be a formula to help the judge, but he or sheshould still have discretion whether or not to change thechild support amount.


Why?

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Should the child support guidelines be changed tointroduce a new way to take into account the costsrelated to unusually low access time when determiningchild support?

Yes

No

Why?

If yes, how should the child support amount becalculated?

It should be left to the judge’s discretion.

There should be a formula. The judge should have nodiscretion.

There should be a formula to help the judge, but he orshe should still have discretion whether or not tochange the child support amount.


Why?

Access Expenses

There are varying opinions on whether child supportamounts should take into account the fact that thepaying parent may have high access expenses, suchas airfare and hotel bills.

For example, some people say that, especially in low-income situations, children’s basic needs are of firstimportance. Parents must be able to meet their children’sbasic expenses for food and housing. Only then should ajudge be able to consider changing the child supportamount to take into account high access expenses.

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Another issue related to high access expenses is thatpaying parents must deal with them in the unduehardship section of the child support guidelines, whichmakes it difficult for them to obtain relief. Because thehardship must be undue and because the standard ofliving of the paying parent’s household must be lowerthan that of the receiving parent’s household, it is verydifficult to get a judge to agree to reduce the childsupport amount to reflect high access expenses. Facedwith these major expenses, paying parents might beable to exercise access only rarely, or not at all.

Questions

Should the child support guidelines provide a way, other thanthe undue-hardship process, to calculate the child supportamount when there are high access expenses, or shouldjudges be allowed to decide on an amount they feel isappropriate?

The guidelines should provide a way to calculate childsupport in these situations.

Please describe in your feedback booklet a method you thinkwould be effective and why it would work.

Judges should be allowed to decide on an amount.

Why?

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CHILD SUPPORTFOR CHILDREN ATOR OVER THE AGEOF MAJORITY

Since the introduction of the Divorce Act in1968, the divorce laws in Canada haveallowed parents and judges to determinechild support for older children who areunable to provide for themselves because ofillness, disability, or other reasons. In casesover the years, the courts have ruled thatthese other reasons include secondary andpost-secondary studies.

Prior to the 1997 changes to the Divorce Act,judges were allowed to decide whetherparents had to make child support paymentsfor children 16 years of age or older.The amended legislation raised that thresholdto the age of majority of the province orterritory in which the children live (age 18 or19; see box). Most provinces and territorieshave laws in place so parents and courts candetermine child support for children at or overthe age of majority when the parents areseparating but not divorcing, or were nevermarried.

The federal government and several provincialand territorial governments continue tosupport the position that judges and parentsmay set child support amounts for childrenwho are at or over the age of majority on acase-by-case basis. Therefore, this documentdoes not deal with the issue of older children’seligibility for child support. Other issuesconcerning to whom the payments should bemade, and how the amount is determined, areaddressed below.



Did You Know?

The laws that allow parents and judges todetermine child support for children at orover the age of majority apply in mostprovinces and territories to intact families.Parents who are not separated or divorcedmay have a legal obligation to support theirolder children.

Federal, provincial and territorial laws allowjudges to consider all of a family’scircumstances when deciding on childsupport for older children. This goes someway to overcoming the disadvantage thatresearch shows children of separated ordivorced parents have when it comes topaying for post-secondary education.

The age of majority is 18 in six provinces:Alberta, Manitoba, Ontario, Prince EdwardIsland, Quebec, and Saskatchewan.

The age of majority is 19 in four provincesand the three territories: British Columbia,New Brunswick, Newfoundland, NorthwestTerritories, Nova Scotia, Nunavut, andYukon.



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Child Support PaidDirectly to Children

The guidelines recognize that older childrenwho are still dependent on their parents mayhave child support needs that are differentfrom those of younger children. Olderchildren may have part-time jobs or liveaway from home while going to school.

Some parents and other people havequestioned whether the paying parentshould have to continue to pay the childsupport for older children to the receivingparent (who provides a home for thechildren), or be able to pay it directly to thechildren.

Some paying parents say that they would besatisfied that the child support is being spenton the children if it were paid directly tothose children. They say that this might alsohelp ease tension between the parents.

Receiving parents point out that theycontinue to have costs, such as maintainingthe home, to support their older childreneven when those children are away atschool for part of the year. Receivingparents are concerned that they may not becompensated for their costs when the childsupport is paid directly to the children.

Here are a few additional points to considerwhen answering the questions below:

• Who will enforce a child support orderwhen the support is paid directly to thechildren?

• Do the children have the experience orability to manage large amounts ofmoney?

• What impact does receiving child supporthave on the children’s eligibility forstudent loans?




Questions

Should the child support guidelines allow paying parents to paychild support directly to children at or over the age of majority?

Yes

No

Why?

What factors should judges consider when deciding whether thepaying parent should pay support directly to children?

Should the children be able to choose whether to receivesupport directly from the paying parent or not?

Yes

No

Why?

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Is it important for the receiving parent to agree that the payingparent will pay support directly to the children?

Yes

No

Why?

Disclosure of Information

As children grow up and begin to make their way in theworld, they become less dependent on their parents.During those transition years, it can be difficult to tell,however, where parental support leaves off andindependence begins, and certainly each child’ssituation is unique.

Given this, many people suggest that receiving parentsand older children should have to show that there is anongoing need for child support to continue. This couldbe done by allowing the paying parent to ask once ayear for information such as school records, leaseagreements or other financial documents related to thechildren. This requirement would apply in all caseswhen support is to be paid for children at or over theage of majority, not just in those cases that includespecial expenses. Special expenses are thoseexpenses, such as tuition for post-secondaryeducation, that are beyond what is covered by the childsupport table amount. Under the guidelines, there is asection that requires parents to produce records tojustify all special expenses. However, this provisiondoes not extend to producing information about otherexpenses that the parents may have, related to thetable amount or another amount paid for older children.

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Many parents want proof that their older children are inschool and, therefore, still entitled to the child supportthey are paying.

Other parents believe that the current rules andmethods for disclosure are sufficient, and thatadditional requirements would be intrusive. Someparents think that involving children in their parents’dispute may have negative effects on the children.

An additional point to consider when answering thequestions below is that, when support is paid directly tochildren, it is the children who may have to disclosefinancial and other information, not their parents.Children have not traditionally been a part of legalproceedings and, historically, courts have beenreluctant to directly involve children of any age in theirparents’ proceedings.

Questions

Do you think the child support guidelines should be changed sothat either the receiving parent or the children at or over theage of majority must provide the paying parent with informationabout the status of the children (for example, about theirschooling, living arrangements or employment situation) once ayear? This would apply in all cases when support is to be paidfor children at or over the age of majority, not just in thosecases that include special expenses.

Yes

No

Why?

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Please describe in your feedback booklet any other option foraddressing this issue that you think would be effective andexplain why it would work.

Do you think the child support guidelines should be changedso that either the receiving parent or the children at or over theage of majority must provide the paying parent with informationabout the children’s finances once a year? (This would apply inall cases when support is to be paid for children at or over theage of majority, not just in those that include special expenses.)

Yes

No

Why?

Please describe in your feedback booklet any other option foraddressing this issue that you think would be effective andexplain why it would work.

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CHILD SUPPORTOBLIGATIONS OF ASPOUSE WHOSTANDS IN PLACEOF A PARENTSpousal and family relationships of varyingpermanence, and blended families, havebecome more common in Canadian societyin recent years. A person who acts as aparent to the children of his or her spousemay have a legal obligation to support thosestep-children after the relationship with thespouse ends.1

Currently, the federal Divorce Act defines a child of the marriage (a child eligible toreceive child support) as a child of twospouses or former spouses, and includes“any child of whom one is the parent and for whom the other stands in the place of a parent.”

Most provinces and territories have adopted asimilar definition in their own legislation orhave defined child as “a child in relation towhom a person has demonstrated a settledintention to treat as a child of his or herfamily.” Recently, the Supreme Court ofCanada decided that it is not in step-children’sbest interests for a person to leave arelationship, in which he or she has assumedthe role of a parent, in order to avoid payingchild support.

Once a step-parent relationship has beenestablished, the obligations of that step-parent towards the children are similar tothose of the natural parents.

The process for determining the childsupport amount when there are step-parentsis not set out clearly in federal, provincial or territorial legislation. The Federal ChildSupport Guidelines, for example, currentlyallow judges to set a child support amountthey consider appropriate. When making thisdecision, judges must take into account theamount set out in the child support tablesand the legal duty of any parent other thanthe step-parent to support the children.

In provincial legislation such as Manitoba’s, astep-parent’s obligation to pay child support issecond behind the natural parents’ obligation.In addition, the step-parent generally has topay support only when the natural parents fail to provide reasonably for the children’ssupport, maintenance or education. When thechildren’s natural parents pay the full amountof child support, the step-parent may nothave to pay anything. The law does not sayhow to determine how much the step-parentshould pay when the children’s naturalparents are not paying the full amount.

Judges have used various approaches tocalculate the amount of child support a step-parent would pay under both the FederalChild Support Guidelines and provincial andterritorial legislation. For example, judgeshave done the following:

• split the total amount of the expensesrelated to the children among all thepaying parents, according to the ability ofeach parent to pay;

• added the incomes of all the payingparents to get the total income, found thechild support table amount for that figure,and then split that amount among thepaying parents, based on the percentageof the total income each earns;

1 Not all step-parents would have a child support obligation.In this consultation paper, the terms step-children and step-parent are used for ease of reference only. Step-children arechildren for whom a spouse stands in the place of a parent.A step-parent is a spouse who stands in the place of aparent to children.


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• figured out the percentage figure that reflects therole each parent plays in the children’s lives, eachparent then paying that percentage of the tableamount for his or her income level; and

• had each parent pay the table amount for his or herincome level, an option that may result in the amountof child support being larger than it might otherwisebe.

Yes

No

Why?

There are different ways judges could figure out howmuch support a step-parent should pay. Two ways are:

• The step-parent could pay the table amount minusthe amount the natural parent is paying.

• Each paying parent, including the step-parent, couldpay the table amount for his or her income level.

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Questions

Should the child support guidelines be changed to providemore direction to parents and judges about whether a step-parent should pay child support, and how much he or sheshould pay?




Do you think either of these approaches would be effective?

Yes

No

Why?

Please describe in your feedback booklet any other approachyou think would be effective and explain why it would work.

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APPENDIX A: AN INVENTORY OFGOVERNMENT-BASED SERVICESTHAT SUPPORT THEMAKING ANDENFORCEMENT OFCUSTODY ANDACCESS DECISIONS

This document provides an inventory ofprovincial and territorial governmentprograms that support making and enforcingchild custody and access decisions. Thefocus is on the services that deal withdivorce or separation when children areinvolved. These may include parenteducation, mediation, family-law information,legal aid, case management, child custodyand access assessments, and supervised-access facilities.

The study does not intend to be scientific orstatistical, nor is it a detailed accounting.Rather, members of the Federal-Provincial-Territorial Family Law Committee wanted toknow about the range of programs availableacross Canada. This knowledge will beuseful in discussing the ideal mix of servicesto support post-separation parentingarrangements. The document also aims toencourage communication amongjurisdictions by briefly providing thelocations, names and phone numbers of theprograms.

The following six headings reflect the natureof the material contained in this inventory:

• Mediation, information and parenteducation

• Court-based services

• Where the child is the client

• Supervised access

• Relevant legislation

• Enforcement

Only programs or services that are in force,or that had a 1999 implementation targetdate, are included. Programs or servicesthat are planned but have no implementationtarget date are briefly mentioned, andreference material provides more completeinformation.

You can find this Inventory on theDepartment of Justice Canada website at:

http://canada.justice.gc.ca/en/ps/cca/invent/main.htm

Copies can also be requested by calling 1-888-373-2222.



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APPENDIX B: PROVINCIAL ANDTERRITORIALPAPERS

Use of Dispute Resolution in AccessEnforcement Effectiveness, Descriptionof Models, and Policy Issues (prepared forthe British Columbia Ministry of the AttorneyGeneral)

Dispute resolution is a useful and successfultool for resolving most conflicts experiencedby couples who are separating or divorcing.Many social science studies conclude thatbetween 80 and 90 percent of casesinvolving disputes between separatingcouples can be dealt with effectively bysome type of non-judicial intervention.This intervention includes mediation,counselling or parental education.Anecdotal evidence indicates that mediationis less likely to resolve difficult accesscases. Three recent reports have lookedspecifically at this issue. One study dealswith the Australian experience and twoothers evaluate programs relating to accessenforcement in various U.S. jurisdictions.

This discussion paper is divided into threeparts. The first part describes the threeabove-mentioned social science studies.The second part describes some approachesother jurisdictions are using to ensurecompliance with access orders. The third partdiscusses various policy issues that requirefurther study and thought.

This paper is posted on the website of theBritish Columbia Ministry of the AttorneyGeneral at:http://www.ag.gov.bc.ca/public/dispute_res_access_enf.htm

Custody and Access Terminology:Options for Legislative Change in BC(prepared for the British Columbia Ministryof the Attorney General)

In its Strategy for Reform, the federalgovernment responds to the report of theSpecial Joint Committee on Child Custodyand Access. It indicates that the federalgovernment will be working closely with theprovinces and territories to determine whatchanges, if any, should be made to theterms “custody” and “access” in the DivorceAct and corresponding provincial legislation.Given the concurrent jurisdiction of thefederal and provincial governments for childcustody and access, any amendments tothe federal Divorce Act would have animpact on provincial laws dealing with childcustody and access, such as the BritishColumbia Family Relations Act.

This report analyzes the benefits anddrawbacks of several options for changingthe law of child custody and access inBritish Columbia, with a particular emphasison terminology. The research focuses on theprovincial Family Relations Act, but alsodiscusses the federal Divorce Act. Theemphasis is on what terms should be usedto describe parenting after separation, andon how parenting rights and responsibilitiesshould be divided between parents after



separation or divorce. The Ministry of theAttorney General intends to use this paperas a starting point for considering whetherthe provisions of the Family Relations Actconcerning child custody and access shouldbe amended and, if so, how they should beamended.

The first part of the report carefully studiesthe provisions of the Family Relations Actand the Divorce Act and analyzes thecurrent law of child custody and access inBritish Columbia. Relevant case law andsecondary texts are also reviewed. Thelegislative provisions containing these termsare then reviewed to assess the impact ofchanging the terms “custody” and “access”in the Family Relations Act.

The second part of the report analyzes theexperiences of four foreign jurisdictions thathave reformed their child custody and accesslaws in recent years: Washington State,Oregon State, the United Kingdom andAustralia. These jurisdictions are chosenbecause each has significantly reformed itschild custody and access legislation over thepast decade, including changes toterminology. For each of the four jurisdictions,the legislative provisions and the availableevaluation research are studied to determinethe nature of the legislative reforms andwhether the reform objectives have been met.

The third part of the report identifies optionsfor legislative reform and discusses thebenefits and drawbacks of each option.These options are identified from theexperiences in other jurisdictions, policy andposition papers concerning child custodyand access, and discussions with staff of theMinistry of the Attorney General.

This paper is posted on the website of theBritish Columbia Ministry of the AttorneyGeneral at:

http://www.ag.gov.bc.ca/public/custody_access_term.htm

Assessing, Serving and MaintainingParenting Arrangements for HighConflict Families (by Policy Planning andEvaluation, Saskatchewan Justice)

This paper focuses on describing aspectrum of services available to families tohelp reduce the levels of conflict. The “onesize fits all” approach is inappropriate for allchildren or all families. Families are uniqueand experience different levels of conflictduring separation and divorce. The paperrecognizes that levels of conflict may changeduring different periods of their relationships.Therefore, families need quick and accurateassessments and a variety of programs andservices to help reduce conflict or, where itcannot be reduced, to minimize the parentalcontact to avoid the conflict.

Whether assessing the situation, providingservices or supporting ongoing parenting,the responsibility is not limited togovernment. Individuals, the community andorganizations have roles in reducing theconflict and raising healthy, resilient children.

Copies of this paper can be obtained from:Policy, Planning and EvaluationSaskatchewan Department of Justice4th Floor, 1874 Scarth StreetRegina, Saskatchewan(306) 787-3481



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APPENDIX C:DEPARTMENT OFJUSTICE CANADAPAPERS

Completed Projects

The following projects have been completedand the reports have been or will soon bepublished. Some of these reports may beavailable on-line, and all of them can beaccessed by calling 1-888-373-2222.

Selected Statistics on Canadian Familiesand Family Law (by Department of Justice,Child Support Team) (CSR-2000-1E/1F)

This document brings together and presentsfamily law and family-law related statisticsrelevant to child support and custody andaccess. The report was prepared by theResearch Unit of the Child Support Teamand draws upon a range of data sources.

You can find this document on theDepartment of Justice Canada website at:

http://canada.justice.gc.ca/en/ps/sup/pub/rap/SelStats.doc

Custody, Access and Child Support:Findings from the National LongitudinalSurvey on Children and Youth (by NicoleMarcil-Gratton & Céline Le Bourdais) (CSR-1999-3E/3F)

This research project provides empiricalinformation on what happens to childrenafter their parents separate in terms ofcustody, access of the non-custodial parent,and child support payments. This informationaims to help develop policy on child custody

and access based on solid statistical data onwhat is now happening in Canadian families.The authors analyze the data from theFamily History and Custody section ofNational Longitudinal Survey on Childrenand Youth. Over 22,000 children, up to 11years of age, were first surveyed during thewinter of 1994-1995. The sample isorganized in a way that gives a good cross-section of data at each cycle, as well asample to be followed over time at the rateof one survey every two years. The contentincludes a wide range of issues touching onthe children’s levels of development andtheir socio-demographic background.

You can find this document on theDepartment of Justice Canada website at:

http://canada.justice.gc.ca/en/ps/sup/pub/anlsc.pdf

Focus Groups on Family Law IssuesRelated to Custody and Access (byS.A.G.E. Research Group) (2000-FCY-5E/5F)

This project consisted of a limited number offocus groups undertaken to assist in thedevelopment of policy options relating tochild custody and access. A total of threeten-hour focus groups were conductedbetween March 8 and March 16, 2000, withparents of children under 18 years in variouslocations across the country. Parents werebrought together to review materials,discuss options, and let their views beknown concerning (i) which “best interests ofthe child” criteria should be used in thereform of the family law system, and (ii)child custody and access terminology andpossible alternatives to these terms.



The final report discusses the results of thefocus group testing by summarizing theviews expressed and by outlining theunderlying values and rationales that leadthe public to those choices and preferences.By its very nature, qualitative research isexploratory and directional only. It does notseek to quantify the results of the researchnor do the research results projectstatistically to the attitudes and opinions ofthe population as a whole. Focus testingdoes, however, produce a richness anddepth of response not readily availablethrough other methods of research.

Divorce Reform and the Joint Exercise ofParental Authority: The Quebec CivilLaw Perspective (by Dominique Goubau,Professor, Faculty of Law, Laval University)(2000-FCY-3E/3F)

This paper reviews the Quebec civil-lawconcept of the “joint exercise of parentalauthority.” It describes the concept andprovides a critical analysis of how it isapplied and understood in Quebec. Thepurpose of the paper is to examine whether,in the context of divorce reform, the Quebeccivil law offers an alternative in terms ofparental roles.

The Voice of the Child in Divorce,Custody and Access Proceedings (byRonda Bessner, Legal and PolicyConsultant) (2001-FCY-1E/1F)

This paper examines ways that the voices ofchildren can be heard during divorce,custody and access disputes. A centralthesis is that children be given real and notmerely symbolic roles in legal hearings thataffect their lives. The paper begins with a

discussion of the dichotomy betweenprotecting children and promoting theirinterests. Article 12 of the United NationsConvention on the Rights of the Child isthen examined. The paper also exploreswhether children should have the right toindependent legal representation andanalyzes three different models of legalrepresentation. As well, the paper discussescommunicating the views, interests, andwishes of the child by third parties to legaldecision-makers. Suggestions are made topolicy-makers and legislators about supportmechanisms and advocacy services thatshould be available to children.

Keeping in Contact with the Children:The Father/Child Relationship AfterSeparation from the Non-custodialFather’s Perspective (by Céline LeBourdais, Heather Juby and Nicole Marcil-Gratton, Centre interuniversitaire d’étudesdémographiques, Institut national de larecherche scientifique, Université deMontréal)

The purpose of this project is to use thedata from the 1995 General Social Survey(GSS) to further our understanding of thefactors that affect the relationship betweennon-custodial fathers and their children afterseparation.

The GSS provides information directly fromboth male and female respondents on thefrequency of contact they and the otherparent maintained with their children. Thissurvey thus has a unique advantage overmost studies of father/child contact, whichrely almost exclusively on informationprovided by mothers. Although male andfemale respondents to the GSS were not



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reporting on the same children (i.e., theywere not the two parents of the children inthe sample), the researchers were able tobuild a picture of the way in which theseparated fathers view the contact they door do not have with their children. Theproject exploits the richness of the GSS dataon the relationship between separatedparents and their children, with particularemphasis on the point of view of men. It willfirst describe the characteristics and thevalues and attitudes of separated fathers,and then identify the factors and conditionsthat influence the likelihood that fathers willmaintain contact with their children.

Allegations of Child Abuse in the Contextof Parental Separation: A DiscussionPaper (by Canadian Research Institute forLaw and the Family) (2001-FCY-4E/4F)

The purpose of this project was to conductresearch on false allegations of abuse indivorce proceedings; identify the relevantissues and trends that are documented byCanadian case law; and examine andassess the current response by the civil andcriminal systems to allegations of childabuse.

The report sets out to address the followingfour questions:

• What are the current responses by childprotection agencies and the civil andcriminal legal systems to allegations ofchild abuse?

• What is the nature and extent ofallegations of child abuse in the contextof child custody and access disputes?

• What are the key issues associated withfalse allegations of abuse?

• What strategies need to be developed toappropriately deal with this problem?

Forthcoming Reports

The following projects have not yet beencompleted. It is expected that these projectswill all result in published researchdocuments in the coming year.

The Early Identification and Streaming ofCases of High-Conflict Separation andDivorce: A Review (by Ron Stewart, Family Therapy Associates)

The purpose of this research is to develop aknowledge base that will assist in identifyingand managing high-conflict separation anddivorce in Canada. The research will employtwo basic methodologies: a review of theinternational literature, and interviews withselect experts in the field of high-conflictseparation and divorce.

In particular, the research will look at:

• existing definitions of high-conflictseparation and divorce and levels ofconflict in separation and divorce;

• currently available and used methodsand mechanisms for identifying high-conflict separation and divorce; and

• currently available and used means andmechanisms for streaming high-conflictcases through the process of separationand divorce and child custody and access.

The final report will analyze the availableinformation on the nature and scope of high-conflict separation and divorce in Canada,and treatments and interventions currentlybeing used in cases of high-conflictseparation and divorce.



Overview and Assessment ofApproaches to Access Enforcement(by Martha Bailey, Faculty of Law, Queen’sUniversity)

This project will provide a comparativereview of legal approaches to the problem of enforcement of access orders, and ananalytical investigation of Canadian case lawand legislation.

The comparative analytical review of legalliterature will look at western common lawjurisdictions including, but not necessarilylimited to, Canada, the United States andAustralia. The review will address suchmatters as learned opinion on the nature,extent and scope of access denial and non-exercise of access, best options for dealingwith access issues, and possible models forapplication in Canada.

The review of legislation will include federal,provincial and territorial law on accessenforcement. The review of Canadian caselaw on enforcing access orders will identifyreported Canadian cases. As well, the reviewwill analyze unwarranted access denial inCanada, the use of the law to litigate accessenforcement and punish access denial, theproblems for the courts and legal system,and how Canadian judges deal with cases ofunwarranted access denial.

The Problem of Access: LegalApproaches and Program Supports(by Pauline O’Connor, Policy ResearchConsultant)

This project will analyze and reviewsociological research on enforcing access

for non-custodial parents, custodial parentsunreasonably denying access, and non-custodial parents not exercising access.

It will include an analytical review ofwestern, common-law literature to uncoverand assess existing evidence concerningthe extent of unwarranted access denial onthe part of custodial parents, and the non-exercise of access on the part of non-custodial parents. These jurisdictions willinclude, but not necessarily be limited to,Canada, the United States and Australia.

It will also involve an analytical review ofexisting programs and services. Theobjective is to identify and assess distinctprogram and service models in westerncommon law jurisdictions for addressingaccess enforcement, and to review andassess any evaluation research on theseprograms and services. In particular, theprogram in place in the State of Michiganwill be examined.

The third aspect of the project is to reviewresearch data needs respecting this issue.Existing research tools will be examined toassess whether they are suitable forcollecting quantitative and qualitative dataon unwarranted access denial and non-exercise of access, as well as the legalcaseload of access enforcement. The reviewwill compare existing Canadian data withdata from other jurisdictions and thestrengths, weaknesses and limitations of thedata. It will include suggestions about whatcould be done in Canada in the short-termto improve data concerning unwarrantedaccess denial and non-exercise of access.



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Survey on Arrangements Dealing withCustody and Access (by Canadian Facts)

This project involves interviewing a smallsample of parents from across the countryon the subject of child custody and accessto address the lack of baseline data onmatters relating to child custody and access.The objective is to collect data that willaddress the following:

• Whether separated or divorced parentshave child custody and accessarrangements; and, if so, whether thearrangement is court ordered, written ororal.

• Details on the arrangement, such as whohas custody, whether the non-custodialparent has access, and who makes themajor decisions concerning the child.

• Whether the original arrangement haschanged.

• What service or help, if any, parentsused to reach their arrangement.

• Levels of satisfaction with thearrangement and with services used.

An Analysis of Options for Changes in theLegal Regulation of Child Custody andAccess (by Brenda Cossman, Professor,Faculty of Law, University of Toronto)

The objective of this paper is to sketch outand evaluate possible reform models to thechild custody and access provisions of thefederal Divorce Act. Three different options

are identified. The first option works withinthe current language of child custody andaccess; the second option is based on aneutral model of parenting responsibility andparenting orders; and the third option adoptsa model of shared parenting.

The first section of the paper reviews generalgoals and objectives for reform in this areaand the general challenges associated withany reform of the legal regulation of childcustody and access. It examines the potentialrole of terminological change in reducingconflict and promoting parental co-operation,as well as the role of law more generally inencouraging and promoting attitudinal andbehavioural change among divorcing parents.

The second section of the paper examinesthe ways that other jurisdictions have tried tomeet these challenges in the reform of childcustody and access laws. Particular attentionis given to the reforms adopted in the UnitedKingdom, Australia, the State of Washingtonand the State of Maine, although examplesare also drawn from several otherjurisdictions.

The third section analyzes the three optionsfor reform. The discussion of each optionincludes the various policy choices andapproaches that need to be considered.The relative advantages and disadvantagesof each option are explored, taking intoaccount the general reform objectives andthe extent to which the options reflect theguiding principles for reform.



Further ProjectsFurther research projects are in developmentincluding: a second phase project on optionsfor addressing high-conflict divorce; a criticalreview of parenting plans, including acompendium of model plans in use inCanada and elsewhere; a project exploringprograms and services that addresschildren’s needs to have a say in their child custody and access arrangements;an overview analysis of empirical data on therisks to children of divorce; a literature reviewsummarizing the comparative benefits andproblems associated with different types ofchild custody and access arrangements; andan exploratory examination of the utility ofnon-traditional, or focused, interventions asopposed to more traditional child custodyand access assessments.



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