Overview of Canadian Family Justice
SECTION 3 — A LEGISLATIVE OVERVIEW
1. Constitutional Issues
Division of Powers
Family law is an area of shared constitutional jurisdiction because of the federal responsibility for marriage and divorce and the provinces' responsibility for property and civil rights. The Divorce Act applies to custody, access and child and spousal support when these issues are determined under that legislation. These issues are determined by provincial and territorial legislation for separating married parents when they choose to proceed under provincial legislation during divorce proceedings. They are also determined under provincial legislation for unmarried parents.
Provincial and territorial law governs all other aspects of family law in relation to parents and children, for example, establishment of parentage, adoption, change of name, child protection, division of property, guardianship of the estate of the child and consent to medical treatment. The provinces and territories are also responsible for establishing the rules of civil procedure and administering court services within their jurisdiction.
2. Parenting Terminology
Since child custody, access, parenting and contact are areas of shared constitutional jurisdiction, in addition to the Divorce Act there is legislation in each of the thirteen provinces and territories governing these issues. Some jurisdictions have more than one statute that affects custody and access. None of the provisions are exactly the same, although there are important common elements. All provide that the decisions made about a child should be based on the best interests of the child. All, except Alberta and British Columbia, use the term custody, although it is not always the primary term used to define parental rights and responsibilities. The specific definition or use of the term custody varies from statute to statute, but apart from Quebec's legislation, the term usually refers to all the rights and obligations related to the care and control of a child, the responsibility to make all important decisions about a child's care and upbringing, and physical custody, the responsibility for the everyday physical care and control of the child. This bundle of rights and responsibilities is sometimes called guardianship of the person of the child. It generally does not include responsibilities related to the children's property or estate, which is often referred to as guardianship of the estate of the child.
In Saskatchewan, The Children's Law Act, 1997, defines custody to mean "personal guardianship of a child and includes care, upbringing and any other incident of custody having regard to the child's age and maturity." Under Quebec law, in contrast, custody has a narrower meaning. It refers only to physical custody. The Quebec concept of parental authority is closer to the concept of custody as it is used in other Canadian jurisdictions. The common denominator across Canada, except for Alberta and British Columbia, is that the term custody implies the actual physical care and control of the child. In most jurisdictions it also means responsibility for making major decisions respecting the child.
The term "custody" is not used in the Family Law Act of either Alberta or British Columbia. Rather, in these jurisdictions the term, guardianship is used to describe the fundamental legal relationship between an adult and a child. In most situations, the parents of the child will be the child's guardians. In British Columbia and Alberta, the time each guardian spends with the child is called parenting time. During a guardian's parenting time, the guardian has the responsibility to make day-to-day decisions about the child and to supervise the child's activities. A non-guardian's time with a child is called contact. Contact may take the form of visits, telephone calls, letters or even Internet chats.
Access, as it is used in the legislation of many provinces and territories, refers to a non-custodial parent's contact with the child through visits or otherwise. Some family law statutes contemplate a somewhat broader definition of access than do others. For example, some legislation specifies that access includes the right to be provided with important information about the child. Others specify that this is a right to information only, and not a right to be consulted or participate in decision making. The term "access" is not used in the Family Law Act of either Alberta or British Columbia.
Joint custody, while not defined per se in any statute, is a term usually used (except in Alberta and British Columbia) to refer to a situation where both parents have legal custody of the child, although one parent may have physical custody, or primary physical care and control. Its usage is akin to the Quebec concept of joint parental authority. Where parents continue to have joint legal custody of their children, the child may live primarily with one parent while the other has periods of time when he/she will be responsible for the children's care.
Shared custody is a term that is used in the context of determining child support under child support guidelines. It is not a term that is currently used in Canadian custody legislation. It generally refers to a situation where parents share physical custody, with a child spending at least 40% of the time with each parent.
Canadian legislation generally allows the court wide discretion to fashion the kind of order it considers appropriate in the circumstances. The courts can and do order a wide variety of parenting arrangements, both under the Divorce Act and under provincial and territorial legislation. Some examples are:
- orders that do not use the terms custody or access at all, but specify when each parent will care for the children and how major decisions about the children will be made (for example, jointly by the parents);
- sole custody to one parent with access to the other;
- joint custody with primary residence or primary physical care and control to one parent, and physical care and control to the other parent at specified times or at times to be agreed;
- joint custody, but with one parent to have ultimate decision-making authority;
- shared custody;
- joint parental exercise of authority; and
- joint guardianship.
Family law legislation does not prevent parents from entering into, by agreement, whatever parenting arrangement they believe will work best for their children. British Columbia's Family Law Act specifically provides that when parents make an agreement about the parenting of a child, they must only consider the best interests of the child.
Parents are not bound to use the terminology of family law legislation in their own agreements (e.g. custody, access). Where parents do not use statutory terminology in their agreements, it is important that the language used is clear and can be understood by third parties who may need to interpret the agreement.
b) Best Interests of the Child
Child custody, access, parenting and contact law and services in Canada are guided by the basic principle that all decisions must be made in the best interests of the child. This is also the standard adopted in the United Nations Convention on the Rights of the Child. All Canadian statutes governing custody, access, parenting and contact incorporate this principle by providing that the overriding consideration in making decisions is the child's best interests.
The primary criterion in deciding custody is the "best interests of the child" in British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Saskatchewan, Northwest Territories, Nunavut and Yukon and in federal legislation. Similarly, a parenting order in Alberta must be based on the "best interests of the child".
In the Northwest Territories, the Children's Law Act, S.N.W.T., 1997, c.14, s. 17 provides that: "[t]he merits of an application ... in respect of custody of or access to a child shall be determined in accordance with the best interest of the child, with a recognition that differing cultural values and practices must be respected in that determination." Similarly, in the Yukon, the Child and Family Services Act, 2008, c. 1, s. 4(2) provides that: "If a child is a member of a First Nation, the importance of preserving the child's cultural identity shall also be considered in determining the best interests of the child."
In Quebec, the governing principle in determining custody is "the child's interests and the respect of his rights." In addition to taking into consideration the moral, intellectual, emotional and material needs of the child, the child's age, health, personality and family environment, and other aspects of his situation are also taken into account.
In most provinces and territories where "best interests" is the applicable test, the legislation sets out factors for the court to consider in the application of the best interests of the child test. The Divorce Act does not contain such a list. The list of factors is not exhaustive and the case law in each jurisdiction may prescribe a range of additional factors for the court to consider. The courts must weigh and balance those factors that are relevant in the particular circumstances of an individual case. Some of the factors that are included in provincial and territorial legislation are listed below.1
- The health and emotional well-being of the child (British Columbia, Manitoba, New Brunswick, Northwest Territories, Nova Scotia, Nunavut, Saskatchewan). Saskatchewan's legislation specifies the "character and emotional needs", as well as the "physical, psychological, social and economic needs of the child." Nova Scotia's legislation specifies the "child's physical, emotional, social and educational needs including the need for stability and safety, taking into account the child's age and stage of development." Similarly, Alberta's legislation refers to the child's "physical, psychological and emotional needs including the child's need for stability, taking into consideration the child's age and stage of development".
- The views of the child (Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Saskatchewan, Yukon). Saskatchewan's legislation includes the wording "to the extent the court considers appropriate, having regard to the age and maturity of the child." In Manitoba, the Court may consider the views of the child if "satisfied that a child is able to understand the nature of the proceedings and the court considers that it would not be harmful to the child." In Ontario and Newfoundland and Labrador's legislation the views and preferences of the child are a factor "where such views and preferences can reasonably be ascertained." In Alberta, the child's views and preferences are to be considered, "to the extent that it is appropriate to ascertain them".
- The love, affection, quality of relationship and similar ties that exist between the child and other persons (Alberta, British Columbia, New Brunswick, Newfoundland and Labrador, Manitoba, Northwest Territories, Nova Scotia, Nunavut, Ontario, Saskatchewan, Yukon). Saskatchewan's legislation specifies "the quality of the relationship that the child has with the person who is seeking custody." In Alberta and British Columbia, the nature, strength and stability of the relationship between the child and significant persons in the child's life are to be considered, as well as in Alberta the relationship to each person in the child's household, and with the applicant are to be considered.
- Plans proposed for the care and upbringing of the child (Alberta, Manitoba, Newfoundland and Labrador, New Brunswick, Northwest Territories, Nunavut, Nova Scotia, Ontario, Yukon). Saskatchewan's legislation includes "the home environment proposed to be provided for the child" and "the plans that the person who is seeking custody has for the future of the child."
- The ability of each person applying for custody of the child to exercise his/her responsibilities by providing guidance and education, the necessaries of life and any special needs of the child (Alberta, Newfoundland and Labrador, Northwest Territories, Nunavut, Ontario, Yukon). Alberta's Family Law Act requires the court to consider the ability and willingness of the applicant to care for and meet the needs of the child. Nova Scotia's legislation includes the ability of each parent, guardian, or other person in respect of whom the order would apply to communicate and cooperate on issues affecting the child.
- The ability of each person seeking custody or access to act as a parent (Alberta, British Columbia, Newfoundland and Labrador, Northwest Territories, Nunavut, Ontario). Saskatchewan's legislation requires the court to consider "the capacity of the person who is seeking custody to act as legal custodian of the child" and "the capacity of the person who is seeking access to act as a legal custodian of the child".
- The permanence and stability of the family unit with which it is proposed that the child will live (New Brunswick, Newfoundland and Labrador, Northwest Territories, Nunavut, Ontario, Yukon).
- The willingness to facilitate contact of the child with the other parent (Manitoba, Northwest Territories, Nova Scotia, Nunavut, Saskatchewan, Yukon). Alberta's legislation considers "the ability and willingness of each applicant to communicate and co-operate on issues affecting the child", and "the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian".
- The relationship by blood or through an adoption order between the child and each party to the application (Newfoundland and Labrador, Northwest Territories, Nunavut, Ontario).
- The time the child has lived in a stable environment (Newfoundland and Labrador, Northwest Territories, Nunavut, Ontario, Yukon). Alberta and British Columbia's legislation considers the "history of care for the child".
- The child's cultural and religious heritage (New Brunswick); or the child's cultural, linguistic and spiritual or religious upbringing and ties (Alberta, Manitoba, Northwest Territories, Nova Scotia, Nunavut).
- Family violence, including any impact on the safety of the child or other family members; the child's general well-being; or the ability of the person engaged in family violence to care for and meet the needs of the child (Alberta, British Columbia, Manitoba, Northwest Territories, Nova Scotia, Nunavut, Yukon) and the appropriateness of making an order that would require the parents to co-operate on issues affecting the child (Alberta, Manitoba).
Some additional factors are found in a few jurisdictions. These include:
- The effect a change of residence will have on the child (Nunavut, Northwest Territories).
- Who has been primarily responsible for the care of the child, including care of the child's daily physical and social needs, arrangements for alternative care for the child where it is required, arrangements for the child's health care and interaction with the child through, among other things, teaching, playing, conversation, reading and discipline (Northwest Territories, Nunavut).
- The history of care for the child, having regard to the child's physical, emotional, social and educational needs (Nova Scotia).
- The need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of the child's full potential according to his individual capacity (New Brunswick).
- In assessing a person's ability to act as a parent, the court shall consider whether the person has ever acted in a violent manner towards his or her spouse or child; his or her child's parent; or another member of the household (Newfoundland and Labrador, Ontario).
- Any civil or criminal proceedings relevant to the safety or well-being of the child (Alberta, British Columbia).
- In Alberta and British Columbia, in addition to the factors the court must consider, the court must "ensure the greatest possible protection of the child's physical, psychological and emotional safety."
- The conduct of the parents unless it bears directly on their ability to care properly for the child (Manitoba, Saskatchewan).
- The past conduct of the parents unless the conduct is relevant to the ability of the person to act as a parent of a child (Newfoundland and Labrador, Ontario).
- No presumption and no inference as between parents that one parent should be preferred over the other one on the basis of the person's status as a father or mother (Saskatchewan).
- The economic circumstances of a person seeking custody or access are not relevant to the person's ability to act as a parent (Northwest Territories, Nunavut).
(ii) Access/Parenting Time
Access/parenting time is also determined on the basis of the best interests of the child in those jurisdictions where "best interests" is the test that is applied for custody/parenting arrangements. The factors that are considered are essentially the same. However, in Saskatchewan, in determining whether to grant access, the courts also consider the capacity of the person seeking access to care for the child when the child is in his or her care. Saskatchewan also eliminates several factors considered in custody applications, such as: the physical, psychological, social and economic needs of the child; the home environment proposed for the child; the plans the person seeking custody has for the future of the child. In addition, in some jurisdictions the factors to consider may be different where there is an access application by a non-parent (a relative or an unrelated third party).
The term "access" is not used in the Family Law Act of either Alberta or British Columbia. In most situations, the parents of the child will be considered the child's "guardians" In British Columbia and Alberta, the time each guardian spends with the child is called parenting time. During a guardian's parenting time, the guardian has the ability to make day-to-day decisions about the child and is responsible for supervising the child's activities.
In British Columbia and Alberta, a non-guardian's time with a child is called contact. For matters involving contact with a child by a non-guardian, the best interests of the child are considered and the safety of the child is also considered.
3. Child Support
Federal Child Support Guidelines
The Federal Child Support Guidelines (Federal Guidelines) are Divorce Act regulations that include a set of rules and tables (based on a numerical formula) for determining child support. The Federal Guidelines apply to child support obligations of divorced or divorcing spouses.
More information on the Federal Guidelines can be found at: http://canada.justice.gc.ca/eng/rp-pr/fl-lf/child-enfant/index.html. The site includes various tools to help determine child support obligations pursuant to the Federal Guidelines, such as:
Provincial and Territorial Child Support Laws
All provinces and territories, except for Quebec where different guidelines apply, have adopted provincial and territorial child support laws that are the same as, or similar to, the Federal Guidelines.
Provincial and territorial child support laws apply to child support obligations of parents who were never married to each other and of married parents who separate but do not divorce.
Three provinces - New Brunswick, Quebec and Manitoba - have received a designation for their guidelines pursuant to the Divorce Act. This means that, in those provinces, provincial child support guidelines also apply in divorce cases, provided that both spouses are ordinarily resident in the province.
4. Spousal Support and Common-Law/Adult Interdependent Partner Support
Spousal support, when sought in the context of a divorce, is governed by the federal Divorce Act. There are also provincial and territorial laws that govern spousal/partner support outside an application for divorce. Federal, provincial and territorial spousal/partner support legislation in Canada tends to take the form of relatively open-ended provisions incorporating a variety of factors and objectives. Much room is left for judicial discretion in the interpretation and application of the legislation.
The Divorce Act lists certain factors to be taken into account in making support orders for a spouse in subsection 15.2(4):
- 15.2 (4) In making an order... the court shall take into consideration the condition, means, needs and other circumstances of each spouse including
- the length of time the spouses cohabited;
- the functions performed by the spouse during cohabitation; and
- any order, agreement or arrangement relating to support of either spouse.
The Divorce Act then provides additional guidance for spousal support determinations by setting out four objectives for spousal support in subsection 15.2(6):
- 15.2 (6) An order (...) that provides for the support of a spouse should
- recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
- apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
- relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
- in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Finally, subsection 15.2 (5) is more specific, indicating one factor that may not be taken into account-spousal misconduct:
- 15.2 (5) In making an order [for spousal support or an interim order] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
The term, "spousal misconduct" includes such behaviour as adultery and who initiated the breakup of the relationship.
There are also provincial and territorial laws that govern spousal/partner support. These laws apply to unmarried or common-law couples and to married couples who have separated but are not applying for a divorce or seeking spousal support under the Divorce Act. Most provinces and territories define "common-law partners" as persons who have cohabited in a spousal-like relationship for at least a minimum period of time, such as two or three years, or one year and who together have a biological or adopted child. Common- law partners in Quebec are not eligible to apply for spousal support. (In Quebec, common-law partners are usually referred to as "de facto spouses.")
Some provinces, like Nova Scotia, Quebec and Manitoba, have registries for couples in relationships other than marriage who wish to formalize their relationship and assume spousal-like rights and responsibilities to each other. Case law has helped to define what constitutes a "spousal-like relationship".
Other jurisdictions do not use the term "common-law partners". For instance, in British Columbia the term spouse is used to refer to unmarried couples who meet the criteria set out in the Family Law Act. Alberta refers to "adult interdependent partners". According to Alberta's Adult Interdependent Relationships Act, an adult interdependent relationship exists, when
- the individuals have lived together in a relationship of interdependence
- for at least three years, or
- of some permanence when there is a child of the relationship, or
- the individuals have entered into a written adult interdependent partner agreement.
Provincial and territorial support law is governed by distinctive statutory regimes. However, in practice there is much overlap between federal, provincial and territorial support laws. Most provincial and territorial legislation directs the court to consider the needs and means of both spouses/partners. They also set out objectives, similar to the Divorce Act, for spousal/partner support, such as:
- recognizing the economic advantages and disadvantages either spouse/partner suffered arising from the relationship or its breakdown; and
- promoting the self-sufficiency of each spouse/partner.
However, there are also some distinctive features of provincial/territorial support laws such as which, if any common-law partners, are eligible to apply for spousal support. Also, the list of specific factors to be considered in determining spousal support varies from statute to statue. Some provinces refer to factors such as property and conduct, while others do not. Some jurisdictions allow the court to make an unequal division of property as a way of addressing spousal support.
In two important decisions, Moge v. Moge2 in 1992 and Bracklow v. Bracklow3 in 1999, the Supreme Court of Canada has attempted to clarify the general principles that structure the law of spousal support. The combined effect of these two decisions is a very broad basis for spousal/partner support. These decisions, together with the legislation, constitute the current legal framework for spousal support and have been relied upon in decisions regarding spousal/partner support under both provincial and territorial legislation, as well as federal legislation.
Spousal Support Advisory Guidelines
The Department of Justice funded a project to develop Spousal Support Advisory Guidelines (SSAG) that would operate within the existing legislative framework. Their goal was to bring greater predictability and certainty to spousal support. Advisory guidelines balance the need for greater guidance with the flexibility required to find fair resolutions in complex family law cases.
The formulas for calculating the amount and length of spousal support are based on a methodology of "income sharing" whereby spousal support is determined as a percentage of income difference between the spouses. An array of factors are considered in determining an appropriate percentage. However, the two key factors are the number of years that the couple has cohabited and the presence or absence of children. The formulas produce ranges for the amount and duration of support, not just a single dollar figure and period of time. The precise amount and duration within the ranges is a matter for negotiation or determination by a judge and depends upon the facts of a particular case. There are also a number of exceptions listed as to when the use of the guidelines would not be appropriate.
Unlike child support guidelines, the Spousal Support Advisory Guidelines have not been legislated. Some provinces and territories use them more than others, depending upon their reception by the judiciary and the legal profession. In most provinces, they are seen to be a useful starting point for determining the amount and duration of spousal support after entitlement has been established in accordance with federal/provincial/territorial legislation.
5. Taxation of Support
a) Taxation Rules for Child Support
Under the Income Tax Act child support payments are not deductible by the paying parent and cannot be included in income by the receiving parent.
This is different from the way child support payments are treated under the Income Tax Act for court orders or written agreements that were made before May 1, 1997 and that have not been varied since then. For these orders or written agreements, the paying parent can claim the amount of child support paid as a deduction and the receiving parent has to include the child support payments in his/her income for tax purposes.
Parents with child support orders or written agreements made before May 1, 1997, have three options:
- Not vary the existing child support order or agreement.
- Vary the court order or written agreement based on current child support guidelines and tax rules.
- Change the way child support payments are treated for tax purposes by filing Form T1157, Election for Child Support Payments, with the Canada Revenue Agency.
b) Taxation Rules for Spousal/Adult Interdependent Partner Support
Under the Income Tax Act spousal/partner support payments are deductible by the support payor and are included in the income of the recipient.
For more information on the tax implications of child support and spousal/partner support, you may wish to refer to the Canada Revenue Agency website at http://www.cra-arc.gc.ca/E/pub/tg/p102/p102-12e.pdf
a) Support Enforcement
Enforcement of support orders is primarily within the authority of the provinces and territories. Support orders made under provincial and territorial law can be made enforceable in other provinces, territories, and countries in accordance with inter-jurisdictional support laws. Support orders made under the federal Divorce Act are enforceable throughout Canada and can be made enforceable in other countries in accordance with the inter-jurisdictional support laws of the provinces and territories and the laws of that reciprocating country.
Each province and territory has a government funded maintenance enforcement program that will enforce and collect money owing to a family support recipient. The money collected will be paid to the support recipient whether he or she resides inside or outside of the enforcing province or territory. Maintenance enforcement programs may use such tools as garnishment/attachment of wages and bank accounts, driver's licence suspensions, seizure and sale of property and enforcement court proceedings to collect support payments and arrears. The maintenance enforcement programs listed for each province and territory can provide further information on the enforcement measures available in their jurisdiction.
Although the federal government does not directly enforce support orders, the collection of family support is a priority of the government. A federal office has been established to assist and support provincial and territorial maintenance enforcement program activities by searching for debtor addresses, garnishing designated federal payments (such as Employment Insurance Benefits, Canada Pension Plan, GST rebates, etc.) and denying passports and specified federal licences to certain support payors who are persistently in arrears. This federal office also processes garnishment applications against federal employees and contractors to satisfy civil debts including family support obligations. Further assistance is provided through Public Service Pension Centres which process applications relating to family support involving federal pensions.
(i) Inter-jurisdictional Support Legislation
Each Canadian province and territory has enacted its own inter-jurisdictional reciprocal enforcement of support legislation. All provinces and territories have reciprocal arrangements with each other under this legislation, which enables family support orders made pursuant to provincial and territorial law to be registered and enforced in another province or territory. The same is true for support orders from other countries with which the province or territory has a reciprocal arrangement. Foreign jurisdictions are designated as reciprocating jurisdictions in accordance with these laws.
Since 2003, most provinces and territories have implemented new inter-jurisdictional support legislation. This legislation is substantially similar in each province and territory although there are some differences to meet the unique needs of each province and territory. This legislation replaces the earlier two-stage provisional/confirmation procedure with a more streamlined application process to establish or vary a support order. However, the legislation does provide for the continued use of the provisional/confirmation order process for those reciprocating jurisdictions that require such orders. The applicable support or support variation application forms are completed and sent to the jurisdiction where the respondent resides. The court in the respondent's jurisdiction conducts a hearing and makes the order.
Each province or territory has a designated authority for the purposes of transmitting and receiving applications.
(ii) International Reciprocity Arrangements
Canada is not a party to any existing multilateral treaty dealing with support. The provinces and territories have reached bilateral arrangements with specified countries which enable support payments to be established, varied and enforced when one person lives in that country. These reciprocal arrangements are negotiated between individual provinces or territories and the country in question. A list of countries with which each of the provinces and territories has reciprocal support enforcement arrangements is posted on the Department of Justice Canada Web site under "Support Enforcement."
Under inter-jurisdictional support legislation, Canadian provinces and territories are able to recognize and enforce a support order from a foreign reciprocating country. In cases where the court will not recognize the foreign order, it can be treated as an application to establish an enforceable support obligation in the Canadian jurisdiction for the benefit of the foreign applicant. If no order exists, the foreign applicant can send an application to establish a support order in the province or territory in which the respondent resides.
On January 1st, 2013, the Convention on the International Recovery of Child Support and other Forms of Family Maintenance came into force. This new international family maintenance convention may lead to additional avenues for inter-jurisdictional family support services in the future. Canada is not a party to this Convention.
b) Enforcement of Parenting Arrangements/Enforcement of Custody and Access Orders/Enforcement of Time with a Child4
Parents may have custody, access, parenting time or contact by operation of law, or pursuant to a written agreement or a court order. Third parties, such as grandparents and others, may also have custody, access, parenting time or contact pursuant to an order or agreement. There is a wide range of legal remedies and options available to enforce the denial of custody, access, parenting time or contact. Some options are only available if a court order exists; others only apply to children of certain ages or in inter-jurisdictional cases. There are a range of options including informal negotiations between the parties and/or their legal counsel, mediation, invoking the civil justice system, and in some cases, the laying of criminal charges. Depending on the mechanism used to enforce custody, access, parenting time or contact, the test applied by the court may be very different or involve the best interests of children in the general, rather than the specific, sense (e.g. as is the case in proceedings pursuant to the Hague Convention on the Civil Aspects of International Child Abduction).
Although a considerable amount of attention is paid to situations where one parent alleges that the other parent is wrongfully denying access, parenting time or contact as ordered by a court, there are also situations where parents fail to exercise access, parenting time or contact as provided in orders. Difficulties may also arise respecting enforcement of custody or parenting time, whether or not the situation amounts to a parental child abduction.
(i) Non-Judicial Remedies
In less complex or entrenched cases, parents may benefit from trying to mediate or negotiate resolutions to access, parenting time or contact difficulties. For example, a dispute over the timing of, or rescheduling of visits may be appropriately dealt with through mediation or negotiation through the parties' counsel. Parent information programs offered early in the process-ideally prior to any court orders or mediated agreements being reached-may be of assistance to many families in preventing future custody, parenting and access, or contact enforcement issues. These programs can greatly assist parents in understanding the emotional needs of their children at various stages of development and how those needs change over time and may require increased flexibility with regard to parenting arrangements.
(ii) Civil Custody and Access/Time with a Child Enforcement Legislation
The provinces and territories have child custody and access/time with a child enforcement legislation providing a variety of means of seeking compliance with custody, access, parenting or contact orders. This legislation can be invoked where an order is breached in a province or territory (e.g. if a child is being abducted to, or is in the process of being abducted from a jurisdiction; or the child is being wrongfully retained, or access, parenting or contact is denied.) Enforcement legislation governing child custody and access/time with a child applies to court orders of custody, access, parenting or contact granted by courts of a province or territory, as well as by the courts or tribunals outside the province or territory with jurisdiction to grant such orders. Generally speaking, these acts do not enable persons with custody, access, parenting or contact rights pursuant to written agreements, or by operation of law, to invoke their provisions. These acts limit the court's ability to substitute its own custody, access, parenting or contact order to those situations where: a child does not have a significant connection to the jurisdiction in which the original order was granted; the child does have such a connection to the province or territory; all of the parties are now habitually resident in the jurisdiction; or the child would suffer serious harm if returned to the parent named in the order (or if the other parent were allowed contact).
Enforcement orders under these acts are binding in the province or territory in which they are granted, which means that in a situation where a child is abducted from one province to another jurisdiction, and then to a third, proceedings may need to be taken in more than one jurisdiction.
These acts contain a wide range of remedies that can be used to enforce an access, custody, parenting or contact order being breached. Remedies may include non-molestation orders, compensatory access, court ordered mediation, change of custody, the posting of a bond or the signing of a recognizance, authorization for a person to apprehend and deliver a child to another person, transfer of property or maintenance payments to a trustee and denial of passports or other documents. Some remedies may only apply if the order contains a non-removal clause.
In some jurisdictions, legislation enforcing child custody/time with a child has been used to implement the Hague Convention on the Civil Aspects of International Child Abduction.
(iii) Civil Contempt
Where a right of custody, access, parenting or contact is contained in an order of the court, the option of civil contempt may be available. Inferior courts do not have inherent jurisdiction to find an individual in contempt of an order unless contempt occurs in court. The rules of court or Provincial/Territorial legislation may provide penalties for individuals found in contempt.
In contempt applications, a number of principles are of critical importance:
- The responding party must be aware of the provisions of the order. Proof of personal service may be necessary.
- Particulars of the alleged contempt must be set forth in the motion.
- The motion must be personally served.
- There must be wilful failure to comply with the court order.
Courts have held that a contempt proceeding should be a last resort where there are other means to ensure compliance. Once an individual has been found in contempt of a custody, access, parenting time or contact order, orders that have been pronounced in response are periods of incarceration, suspended sentences, fines, stays of ongoing litigation, compensatory access, supervised access and suspension of support or other payments pending resumption of access.
For contempt to be a viable option, the order must be clear on its face. This generally means that the order must be one for specified periods of access, parenting time or contact with prescribed days and times. An order providing for "reasonable access" is not generally one that could be used to seek a finding of civil contempt. The party denied access, parenting time or contact would be more likely to ask that the court specify periods of access, parenting time or contact.
(iv) Non-exercise of Access/Parenting Time/Contact
Non-exercise of access/parenting time/contact can be as damaging to a child as denial of access/parenting time/contact. Several Canadian jurisdictions have legislation under which a parent may seek financial compensation or other remedies in the event that the other parent fails to exercise access/parenting time/contact as contemplated in the original order.
(v) The Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Abduction Convention) was concluded in October of 1980. It governs international child abduction situations, not those of an inter-provincial/territorial nature. The Hague Abduction Convention applies only between countries that are party to it. Canada was one of the original four signatory states to the Hague Abduction Convention; it has been implemented in all the Canadian provinces and territories.
The purposes of the Hague Abduction Convention are to secure the prompt return of wrongfully removed or retained children to the country where they habitually resided before their removal, and to thereby ensure that rights of custody and of access under the law of that country are respected. To achieve these purposes, the Convention provides a framework for cooperation between countries via designated Central Authorities. In Canada, each province and territory has a Central Authority charged with certain obligations pursuant to the terms of the Hague Abduction Convention. There is also a federal Central Authority.
The Hague Abduction Convention applies to children up to the age of 16 whose removal from their country of habitual residence or retention in another country (e.g. where the parent exercising access rights does not return the child at the end of the visitation period) breaches rights of custody as defined in the Convention. These rights may arise by operation of law or pursuant to a court order.
The Hague Abduction Convention requires that wrongfully removed or retained children be promptly returned to their home country, where any disputes regarding custody and access may be resolved in the best interests of the child. There are some limited exceptions to this requirement, such as if the left-behind parent consented to the removal of the child or if a child would be exposed to grave risk of harm if returned. In addition, a decision may be made not to return a child if he or she wishes to remain in the other country and is old enough to have his or her views considered. When requests for the return of a child are made more than a year after the child's removal, the court in the country where the child has been taken or retained can refuse to return the child if it determines that the child is now settled in the new country. It is therefore very important to request the return of the wrongfully removed or wrongfully retained child at the earliest opportunity.
Although Article 21 of the Hague Abduction Convention allows an application to be made to a Central Authority for assistance in establishing or enforcing a right of access, there is no explicit remedy in relation to access applications. Central Authorities ("CA's") are bound by the obligation of cooperation to promote the peaceful enjoyment of access rights and the fulfillment of any conditions to which the exercise of those rights may be subject. Most Canadian CA's do not become actively involved in access establishment and enforcement cases, although Legal Aid assistance may be available for these purposes in some jurisdictions.
There are currently 89 States party to this Convention. Additional information about the Hague Abduction Convention can be obtained from the designated Central Authorities in each jurisdiction. The list of Central Authorities may be found at: http://travel.gc.ca/travelling/publications/international-child-abductions#directory.
(vi) Criminal Sanctions
In January 1983, specific provisions in the Criminal Code of Canada came into effect making parental child abduction a criminal offence. Section 282 of the Criminal Code prohibits parental child abductions in situations where there is a custody order made by a Canadian court. Section 283 applies to situations where a parent has custody of their child by operation of law, where there is a written agreement, where there is a foreign custody order, or where the abducting parent did not believe or know there was a valid custody order.
In October 1998, Federal/Provincial/Territorial Ministers responsible for Justice adopted new Model Parental Child Abduction Charging Guidelines prepared by the then Federal/Provincial/Territorial Family Law Committee, in consultation with the Coordinating Committee of Senior Officials-Criminal Justice. The Model Charging Guidelines were intended to improve the handling of parental child abduction cases and replaced the earlier 1990 Guidelines. The Model Charging Guidelines are advisory and provide Crown Attorneys and law enforcement agencies with guidance as to circumstances where parental child abduction charges may or may not be appropriate. The Model Charging Guidelines may be found at Appendix C.
Not every case in which a custody, access, parenting or contact order is breached amounts to parental child abduction. Depending on the legislation or statute pursuant to which the order was granted, there may be other charges that can be considered.
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