Family Mediation Canada Consultation on Custody, Access and Child Support

Executive Summary

The Department of Justice Canada hired the Canadian Research Institute for Law and the Family (CRILF) to analyze questionnaires completed by members of Family Mediation Canada on issues surrounding custody and access and the Federal Child Support Guidelines. The purpose of the survey was to obtain feedback from mediators about their experiences with custody and access issues and the Guidelines, as well as their perceptions of the need for changes, both legislative and otherwise, in these areas. Participants were asked to comment on issues and policy options based on their professional knowledge and experience.

To facilitate delivery of the survey, the questionnaire was handed out with the registration materials to all delegates to the fall 2000 Family Mediation Canada Conference in Hull, Quebec. The questionnaire was translated into French by the Department of Justice Canada for the benefit of francophone delegates. In cooperation with Family Mediation Canada, questionnaires were also distributed to all members who had not attended the conference (either by mail, e-mail or fax).

A total of 157 surveys were completed and returned to CRILF. Of these, 42 percent were completed by mediators, 39 percent by lawyers, 17 percent by social workers, and 15 percent by psychologists/therapists. The overwhelming majority of respondents said they practise mediation (91 percent). Highlights of the survey findings are presented below.

Custody and Access Issues

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

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

  • Most respondents 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.

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

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

  • Three quarters of respondents 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, parenting education programs, marriage/family counselling and parenting plans.

  • 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 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 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 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 respondents thought that the Federal Child Support Guidelines should reflect an adjustment for access costs.

  • More than one half of respondents 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.

Respondents were also asked their opinions about what legislative reforms or other reforms, services or mechanisms were needed to address a variety of custody, access and child support issues. Based on the results of this survey, it is clear that some of the issues could be addressed with legislative changes, while others need different approaches. A summary of the recommended legislative and other reforms as suggested by the respondents to this survey is presented below.

Suggested Legislative Reforms

  • Respondents thought that several specific "best interests of the child" criteria were particularly important and should be included in the Divorce Act.

  • Respondents supported several legislative changes that would recognize family violence as a factor in decision making about children after separation and divorce.

  • More than one half of respondents 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 thought that lawyers and judges should be required to explain to each party the obligations a parenting order creates 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, that the Federal Child Support Guidelines should reflect an adjustment for access costs, and that costs should be shared in proportion to income.

  • 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 thought that decisions should be based on the "best interests of the child." Three quarters of respondents 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 respondents thought that financial arrangements should be adjusted to allow regular visits by the non-custodial parent, and two thirds 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. Almost two thirds suggested that provincial legislation or court rules were needed to facilitate quick reaction by courts. One half of respondents thought that legislation should provide a statutory definition of wrongful access denial and provide remedies for access denial to be used only when denial is wrongful. One half 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

Respondents were supportive of the following reforms to address a variety of custody and access issues:

  • parenting education programs;
  • better access to counselling services;
  • better access to mediation services;
  • assessment services;
  • better access to legal aid;
  • parenting plans;
  • improved access supervision services;
  • education for professionals;
  • improved availability of information.

Child Support Issues

Respondents were asked a series of questions about potential changes to the Federal Child Support Guidelines. Legislative changes that respondents favoured are summarized below.

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 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 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, almost one-half 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 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, the living accommodations for the children in each parent’s home, the existence and content of a parenting plan, how parents share the children’s expenses, and the proximity of the parents’ residences and the feasibility of the arrangement.

  • When asked their opinion on how the time element of shared custody should be defined, two thirds of respondents indicated that the parents should share their children on a "substantially equal" basis.

  • 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 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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