Child Access in Canada: Legal Approaches and Program Supports

Acknowledgements

Much of the information in this report was gathered through telephone interviews with program directors, researchers and members of the Federal-Provincial-Territorial Family Law Committee.  This report owes a great deal to their willingness and promptness in sharing their knowledge and expertise, and to their review of the draft report.

The support and direction provided by officers of the Family, Children and Youth Section of the Department of Justice Canada have also been much appreciated.  Responsibility for the contents of the report, including errors and omissions, remains with the author however.

Introduction

Nearly 70,000 Canadian couples divorce each year, and half of these couples have dependent children (Department of Justice Canada, 1997).  Moreover, thousands of common-law couples separate each year, and significant numbers of these couples have dependent children.  Post-separation or post-divorce parenting is, therefore, an everyday reality for large numbers of Canadian parents.  With it often comes stress, conflict and, for a small number of couples, one or more journeys through the courts to resolve access and other disputes.

About 9 in 10 children live with their mothers after divorce or separation.  Only about seven percent live with their fathers, and a very small number live with both parents equally. Although 13 percent of court orders are for shared custody, the children actually live with their mothers in most of these cases (Department of Justice Canada, 1999).  The overwhelming majority of access (or contact) parents are, therefore, fathers.  The average parenting agreement awarded by the court gives a parent "reasonable access", although some agreements specify the kind and nature of access.[1]

The typical Canadian post-separation parenting arrangement involves a custodial mother and a father awarded reasonable access.  Only one percent of Canadian fathers are denied access after separation or divorce, in keeping with the widely held view, spelled out in subsection 16(10) of the Divorce Act,that a child should have as much contact with each parent as is consistent with the best interests of the child.

The problem of access enforcement has gained prominence in recent years with access parents' complaints about access denial, and growing concern about finding legal solutions to disputes over access that will genuinely serve the child's best interests.  Traditional legal sanctions, such as civil contempt, seem to be rarely used, mainly because they are not seen to serve the child's best interests but also because evidence suggests that access denial is only one of a cluster of problems that beset some couples and that may best be dealt with together.

At the same time, concern is growing about the apparent failure of access parents to exercise the access they are awarded.  If it is in the child's best interests to maintain contact with both parents, then clearly it is important that both parents maintain that contact for the child's sake.

This report addresses the following questions:

  • What is the extent of the problem of unwarranted access denial on the part of custodial parents in Western, common-law jurisdictions?
  • What is the extent of the problem of non-exercise of child access on the part of non-custodial parents in Western, common-law jurisdictions?
  • What are the strengths and weaknesses of the available data on access denial and non-exercise of access?
  • What program and service models exist in Western, common-law jurisdictions to address the problem of enforcing access orders?  What model or models are in use in Canada?
  • Have evaluations been undertaken on the effectiveness of existing programs and services, and what were the results?  Are there effective programs and services that should be given consideration in the Canadian context?
  • What specific program approaches to access enforcement exist in Canada at the federal, provincial and territorial levels?  What do the evaluations of these programs tell us in terms of impact and effectiveness in addressing access issues, and in terms of benefits to the legal system, the social services system, parents and children?

This report examines the problems of unwarranted access denial and failure to exercise access from three different perspectives.  Chapter 1 explores the state of research on the incidence of access denial and failure to exercise access, and what the research says about the importance of ongoing contact for children.  Chapter 2 sketches legislative approaches to access enforcement that have been adopted by Canadian provinces and territories, as well as the two very different jurisdictions of Australia and Michigan in the United States.  Chapter 3 examines research on and evaluation of the efficacy of some programs and services being used by various jurisdictions to resolve access disputes in ways that conform to children's best interests.

Given the very short span of the project, the research consisted primarily of a scan of law and social scientific journals and of the Web sites of family law research organizations and institutions.  The document review used to develop the sketches of the various provincial and territorial approaches to access enforcement was augmented by telephone calls to members of the Federal-Provincial-Territorial Family Law Committee, and limited telephone contact with program directors in some provinces.  Given the time frame, not all committee members could be reached.  The document review of the State of Michigan's model of access enforcement was also augmented by telephone interview with state officials in the office responsible for overseeing the county-based programs.

The content of the report is meant to be neither a comprehensive nor an exhaustive examination of the issues.  However, the author hopes that it does shed light on some of these complex matters.

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