Family Mediation Canada Consultation on Custody, Access and Child Support

Summary and Policy Implications

This chapter presents the overall findings from the survey on custody, access and child support issues. In addition, suggestions about what legislative reforms or other reforms, services or mechanisms were needed to address a variety of custody, access and child support issues that were supported by at least one half of respondents are presented according to whether they are legislative reforms, or other types of reforms or mechanisms. Based on the results of this survey, it is clear that some of the issues regarding custody, access and child support could be addressed with legislative changes, while others need different approaches. Recommended legislative and other reforms as suggested by the respondents to this survey are presented below.

Custody and Access Issues

Overall Findings

The overall findings from the survey on custody and access issues are presented below.

  • Almost all respondents agreed (94 percent) that the Divorce Act should continue to include the "best interests of the child" test.

  • The majority of respondents (85 percent) thought that the Divorce Act should include more specific criteria respecting the best interests of the child.

  • Most respondents (79 percent) agreed that legislative reforms or service improvements were necessary to better enable children to voice their views when parenting decisions affecting them were being made. Respondents stated that more weight should be given to the preferences of older children regarding custody decisions than those of younger children.

  • More than one half of respondents (59 percent) thought that legislation should define high conflict spousal relationships.

  • Most respondents (80 percent) thought that there should be specialized legislative provisions or other procedures to deal with high conflict disputes.

  • Three quarters of respondents (74 percent) thought that subsection 9(1)(b) of the Divorce Act (imposing a duty on lawyers to inform and discuss with their clients the availability of mediation facilities) should be strengthened.

  • Respondents were very supportive of the following mechanisms or services to help parents resolve disputes about their children: mediation (96 percent), parenting education programs (94 percent), marriage/family counselling (85 percent) and parenting plans (84 percent).

  • The majority of respondents thought that counselling and mediation services should be voluntary. The majority of respondents thought that parenting education programs and parenting plans should be mandatory.

  • More than three quarters of respondents (77 percent) agreed that legislative measures stronger than section 16(10) (the "friendly parent clause") or other measures were required to promote children’s extensive and regular interaction with both their parents.

  • Most respondents (85 percent) thought that parents should be encouraged to formalize in a written agreement or court order their custody and access arrangements.

  • More than two thirds of respondents (68 percent) thought that costs should be specifically included as part of an access order when extensive and regular access arrangements involved financial costs.

  • Two thirds of the respondents (62 percent) thought that the Federal Child Support Guidelines should reflect an adjustment for access costs.

  • More than one half of respondents (58 percent) thought that stronger legislative or other measures were required to promote children’s extensive and regular interaction with their grandparents.

  • Respondents were asked which of four legislative options they would like to see implemented to clarify terminology and parental responsibilities. The majority of respondents favoured Option 4: Shared Parenting, followed closely by Option 3: Allocating Parental Responsibility.

Suggested Legislative Reforms

Suggested legislative reforms that were supported by a majority of the respondents are outlined below.

  • Specific "best interests of the child" criteria that respondents thought were particularly important and should be included in the Divorce Act were the following: need to protect the child from physical or psychological harm caused by violence or exposure to violence (96 percent), opportunity for the child to maintain a strong and stable relationship with both parents (91 percent), arrangements that encourage the child’s emotional growth, health, stability, and physical care at every stage of the child’s development (80 percent), ability of parent(s) to provide guidance, education, basic needs, and other special needs of the child (74 percent), protecting the child from continued exposure to conflict between parents (73 percent), willingness of each parent to encourage a close relationship between the child and the other parent (71 percent), quality of the relationship that the child has with the parent(s) (58 percent), ability of the parents to cooperate and communicate with each other on important issues concerning the child (56 percent), personality, character, and emotional needs of the child (54 percent), opportunity for the child to maintain a strong and stable relationship with other members of his or her family (53 percent), and ensuring there is no preference in favour of either parent on the basis of that parent’s gender (51 percent).

  • Respondents supported the following legislative changes that would recognize family violence as a factor in decision making about children after separation and divorce: history of family violence should be a factor considered in evaluating the "best interests of the child" test (89 percent), legislation should provide that domestic violence is a factor that negatively affects children and should be considered when determining parenting arrangements (83 percent), legislation should clarify that shared parenting should not be ordered when this could cause abuse, serious harm or injury (69 percent), legislation should provide that supervised access be ordered when necessary to protect the child (68 percent), legislation should create an offence for false allegations of abuse or violence (66 percent), and legislation should provide a statutory definition of family violence (54 percent).

  • More than one half of respondents (57 percent) thought that a legislative definition of high conflict spousal relationships should include long-term disputes involving high degrees of anger and distrust.

  • One half of respondents (52 percent) thought that lawyers and judges should be required to explain to each party the obligations created by a parenting order and the consequence of non-compliance with orders.

  • When extensive and regular access arrangements involve financial costs, respondents thought that costs should be specifically included in an access order (68 percent), that the Federal Child Support Guidelines should reflect an adjustment for access costs (62 percent), and that costs should be shared in proportion to income (50 percent).

  • When asked how to handle a situation in which a custodial parent wishes to move to a location that would affect the current access arrangements, most respondents (80 percent) thought that decisions should be based on the "best interests of the child." Three quarters of respondents (73 percent) said that there should be a statutory notice period (e.g. 90 days) to allow time for altering access schedules, negotiation or litigation when necessary. Almost three quarters of the respondents (72 percent) thought that financial arrangements should be adjusted to allow regular visits by the non-custodial parent, and two thirds (66 percent) thought that the custodial parent should have to show that the reason for the move is something other than to frustrate access by the non-custodial parent.

  • Respondents were asked what legal approaches could address the problem of enforcing access orders, and 61 percent suggested that provincial legislation or court rules were needed to facilitate quick reaction by courts. One half of the respondents (55 percent) thought that legislation should provide a statutory definition of wrongful access denial and provide remedies for access denial only when that denial is wrongful, and one half (54 percent) thought that legislation authorizing courts to order compensatory access and compensation for expenses incurred as a result of access denial was needed.

Other Suggested Reforms, Services and Mechanisms

Other suggestions for reforms to address custody and access issues are outlined below, grouped the issue that respondents thought the reforms could be addressed.

Parenting Education Programs

Respondents were highly favourable toward parenting education programs to address a variety of issues. The vast majority of respondents (94 percent) thought parenting education programs would be useful to help parents resolve disputes about their children. Three quarters of respondents (76 percent) thought education for parents on the effects of family violence on children would be useful, and 70 percent thought specialized education could help parents deal with high conflict disputes. Respondents thought that education for parents on the benefits for children of contact with both parents would promote children’s interaction with both parents (74 percent). More than two thirds of respondents (69 percent) thought parenting education programs would encourage parents to formalize their custody and access arrangements, and 64 percent thought that parental education could address the problem of enforcing access orders.

Better Access to Counselling Services

Respondents were also in favour of counselling services to address custody and access issues. Most respondents (85 percent) thought that marriage/family counselling would help parents resolve disputes about their children. Two thirds of respondents (68 percent) thought that better counselling services would be useful to address family violence issues, and 65 percent thought that special counselling services would help parents in high conflict disputes. More than one half of respondents (57 percent) thought that counselling services would promote children’s interaction with both parents, and more than one half (56 percent) also thought that the use of counselling could address the problem of enforcing access orders.

Better Access to Mediation Services

Almost all respondents (96 percent) thought mediation services would help parents resolve disputes about their children. Three quarters (76 percent) thought mediation services would encourage parents to formalize their custody and access arrangements, and 76 percent thought the use of mediation could address the problem of enforcing access orders. Two thirds of respondents (68 percent) thought that mediation services would promote children’s interaction with both parents, and 60 percent thought that special mediation services would be useful in dealing with high conflict disputes.

Assessment Services

An independent assessment service was mentioned by 64 percent of the respondents as a useful improvement for dealing with situations involving family violence. Almost two thirds of respondents (61 percent) thought that special assessment services would be useful when dealing with high conflict disputes. More than one half of respondents (54 percent) thought that an assessment report would enable children to voice their views when parenting decisions affecting them are being made.

Better Access to Legal Aid

One half of the respondents (51 percent) thought better access to legal aid was a necessary improvement when dealing with cases involving family violence.

Parenting Plans

Most respondents (84 percent) thought the use of parenting plans would help parents resolve disputes about their children, and 58 percent thought parenting plans would be a useful mechanism to encourage parents to formalize their custody and access arrangements.

Improved Access Supervision Services

More than three quarters of respondents (78 percent) thought that access supervision would be a useful service to help parents resolve disputes about their children, and two thirds of respondents (69 percent) thought that better access supervision services were necessary when dealing with cases involving family violence. One half of respondents (50 percent) thought that supervised access services would promote children’s interaction with both parents.

Education for Professionals

Almost two thirds of respondents (61 percent) thought that more education for professionals on the effects of family violence on children was a necessary service improvement.

Availability of Information

Respondents thought parents would be better informed about mechanisms or services to help them resolve disputes about their children if information was made available to them early in the process (90 percent), if multimedia advertising (e.g. television, newspapers and the Internet) were used (77 percent), and if printed materials (e.g. brochures and booklets) were available at law offices (71 percent) or through the courts (71 percent). More than one half of respondents (57 percent) thought that parents would be encouraged to formalize their custody and access arrangements if they had better access to information.

Child Support Issues

Respondents were asked a series of questions about potential changes to the Federal Child Support Guidelines. This section summarizes the legislative changes that respondents favoured.

Suggested Legislative Reforms

  • All but two respondents thought that direct child support payments to children at the age of majority or older should be allowed in certain circumstances.

  • Most respondents (87 percent) thought that information about the status of children at the age of majority or older should be provided to the parent paying child support.

  • Almost three quarters of respondents (73 percent) thought that the Federal Child Support Guidelines should be changed so that the parent paying child support receives information about the finances of children at the age of majority or older.

  • When asked what procedure the Guidelines should include for calculating the amount of child support a step-parent pays, 47 percent of respondents said that the child support amount should comprise the table amount minus the amount any other paying parent pays.

  • The vast majority of respondents (80 percent) thought that time should not be the only criterion for defining shared custody. Respondents thought that judges should also be allowed to consider other factors based on the level of parental responsibility.

  • Respondents thought that the following factors should be included in a definition of shared custody: the decision-making process (76 percent), the living accommodations for the children in each parent’s home (70 percent), the existence and content of a parenting plan (68 percent), how parents share the children’s expenses (65 percent), and the proximity of the parents’ residences and the feasibility of the arrangement (61 percent).

  • When asked their opinion on how the time element of shared custody should be defined, two thirds (62 percent) of respondents indicated that the parents should share their children on a "substantially equal" basis. Only 13 percent of respondents agreed that each parent should have the children at least 40 percent of the time.

  • There was no clear consensus on what term should be used to capture the concept of shared custody in the Guidelines for the strict purposes of determining child support.

  • Respondents were asked how child support should be determined in shared custody arrangements. One half (49 percent) thought that formulas should be used, although respondents differed in the amount of discretion they thought judges should have in deviating from formulas or tables.
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