Child Access in Canada: Legal Approaches and Program Supports

Appendix 2 : Legislatice Approaches and Supports to Access Among Jurisdictions

 AUSTRALIA

Detail Description

Principles governing access awards

Children's best interests

  1. Child's expressed wishes and any factors relevant to determining how these wishes should be weighted.
  2. Nature of the child's relationship to each parent and other persons.
  3. Likely effect of changes in the child's circumstances, including likely effect of separation from either or both parents, other children or a person with whom the child has been living.
  4. Practical difficulty and expense of contact with a parent, and whether the difficulty or expense will substantially affect the child's right to maintain personal relations and direct regular contact with both parents.
  5. The capacity of each parent or other person to provide for the child's needs, including emotional and intellectual needs.
  6. The child's maturity, sex and background and other relevant characteristics.
  7. The need to protect the child from physical or psychological harm caused, or perhaps caused by being subjected or exposed to abuse, ill treatment, violence or other behaviour; or being directly or indirectly exposed to abuse, ill treatment, violence or other behaviour directed towards, or which may affect, another person.
  8. Attitude of the child, and attitude of each parent to the responsibilities of parenthood.
  9. Any family violence involving the child or a member of the child's family.
  10. Whether it would be preferable to make the order that would be least likely to lead to further proceedings in relation to the child.
  11. Any other relevant consideration.

Provisions for dealing with cases involving child abuse and violence and spousal abuse and violence

  1. Federal Family Court accepts witnessing domestic violence as a form of abuse for children, but state services do not (Brown, 1998).
  2. Spousal violence is a consideration in determining child's best interests.
  3. 3. Judges are required to ensure their residence and contact orders do not expose any person to an unacceptable risk of family violence.
  4. 4. The court must refrain from making any contact order inconsistent with a family violence order unless it is in the child's best interests to do so.  When inconsistent orders are made, the judge or magistrate must explain the reasons for the order, among other things (Rhoades et al., 1999).

Penalties for unwarranted access denial

  1. Recognizance-that is, was placed on a bond to comply by the provisions of the order.
  2. Compensatory contact.
  3. Fines.
  4. Imprisonment.
  5. Awarding of costs to the applicant.
  6. Community service orders.
  7. Reimbursement of costs.
  8. Reprimands.

Role of the child's wishes in access disputes

  1. Child's wishes are a consideration in determining child's best interests.
  2. Children's interests can be represented by a "separate representative" in certain specified kinds of access and residence disputes including disputes about child abuse, intractable conflict, the child being alienated from one or both parents, and an older child wanting no contact or to change custodial parent.  The number of requests for these representatives rose from 677 in 1992-93 to 2,577 in 1994-95 (the court clarified its role in a 1994 judgement).  The program is considered to be underfunded and questions remain about the permissible extent of the children's participation in these cases (ALRC, 1996).
  3. The 1995 reforms removed 14 as the threshold age at which the court was to consider the child's wishes in residence and access disputes (Family Law Council, 1992b).

Penalties for unwarranted breach of access or failure to exercise access

As above.

Mandatory supports for separating or divorcing parents

1. Counselling (conciliation) meeting is a prerequisite for a parenting order (custody and access award), except when the order is interim, the need for an order is urgent, or the order is consensual.  47 percent of Family Court counselling clients are mandatory.

Voluntary supports for separating or divorcing parents

  1. Counselling.  Court provided counselling (conciliation) is available at any point.  49 percent of Family Court counselling clients are voluntary.  Clients screened for violence during a preliminary meeting.  Parents seen separately or not at all when violence is an issue.
  2. Mediation.  Courts provide mediation to parties before and/or after filing in residence and contact cases.  Law now recognizes non-court mediation as well.

Mandatory supports for parties in access disputes, including children

1. Counselling.  Court-ordered counselling (conciliation).

Legal Aid and other legal supports for parties in access disputes, including children

Unknown.  However there is concern that recent cutbacks to Legal Aid are making it more difficult for access and residence parents to bring enforcement applications, and for parents to defend themselves against enforcement applications.

Voluntary supports for parties in access disputes, including children

  1. Counselling.  Court-provided counselling (conciliation) available at any point.
  2. Voluntary mediation.

Mandatory supports for enforcement for access orders

1. Supervised access can be ordered by the courts (more likely to be ordered as a condition of interim access).  Centres exist around the country, although demand exceeds supply.  Program expansion is under way.


MICHIGAN

Detail Description

Principles governing access awards

  1. A child shall have a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that the parenting time would endanger the child's physical, mental and emotional health.
  2. Parenting time granted in frequency, duration and type to promote a strong relationship between the child and the parent granted parenting time.
  3. 3. Parents have a responsibility to arrange a schedule of parenting time that is reasonable based on the best interests of the child and the family situation.

Provisions governing frequency, duration and type of access awarded

  1. Existence of any special needs of the child.
  2. Whether the child is nursing and younger than six months of age, or younger than one year of age when still nursing significantly.
  3. The reasonable likelihood of abuse or neglect of the child during parenting time.
  4. The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time.
  5. The inconvenience to, and burdensome impact or effect on, the child of travelling to and from the parenting time.
  6. Whether the visiting parent can reasonably be expected to exercise parenting time in accordance with the court order.
  7. Whether the visiting parent has frequently failed to exercise reasonable parenting time.
  8. The threatened or actual detention of the child with the intent to retain or conceal the child from the custodial parent.
  9. 9. Any other relevant factors.

Provisions for dealing with cases involving child abuse and violence and spousal abuse and violence

  1. Access can be denied when there is "clear and convincing" evidence that contact would endanger the child.
  2. It is the parent's responsibility to disclose claims of abuse or neglect to the Friend of the Court (FOC-the custody, access and child support enforcement and mediation arm of the court system) during any FOC investigation into applications for parenting time or access ordered by the court.
  3. Spousal violence is not a consideration in awarding or denying access, or in deciding whether a parenting order has been violated.  However, it can be a consideration in determining the frequency, duration and type of parenting time, and in applications to vary original access orders.

Role of the child's wishes in access disputes

  1. Child's wishes do not count in decisions to award or deny access, or to vary access orders.
  2. Child's refusal to see the access parent does not count in determining breaches of the parenting order.
  3. It is the custodial parent's responsibility to promote a positive relationship between the child and the access parent-that is, to overcome the child's resistance to seeing the access parent.

Penalties for unwarranted access denial

  1. Compensatory access.
  2. Contempt:  fines or imprisonment.

Penalties for unwarranted breach of access or failure to exercise access

As above in counties where the custodial parent may file applications for breach of access (i.e., failure to return the child on time).

Mandatory supports for separating or divorcing parents

1. Conciliation.  Provided by Friend of the Court offices in some counties in cases in which disputes have not responded to mediation.  When conciliation is unsuccessful, the FOC prepares a recommendation and the court may make an order based on the recommendation.

Voluntary supports for separating or divorcing parents

  1. Mediation.  Provided by Friend of the Court.  Parents may request mediation in resolving disputes over parenting time or access at any time, or the court may order mediation with the parties consent.
  2. Arbitration, or binding mediation.  Provided by Friend of the Court.  Available in some counties.

Mandatory supports for parties in access disputes, including children

1. Meeting with the FOC once the FOC has determined that the parenting order has been violated.

Legal Aid and other legal supports for parties in access disputes, including children

Unknown.

Voluntary supports for parties in access disputes, including children

1. Mediation.  Provided by the Friend of the Court.  The FOC may refer the parties to mediation, with their consent, after it has found that the parenting order has been violated.

Mandatory supports for enforcement for access

Some supervised access available.  Where not available, judge may order access under the supervision of a relative, or child exchange at public places such as the police station.


CANADA

Detail Description

Principles governing access awards

Divorce Act (R.S.C. 1985)

Children's best interests

  • As determined by reference to the conditions, means, needs and other circumstances of the child.
  • A spouse granted access has the right to make inquiries and to be given information as to the health, education and welfare of the child.
  • Child should have as much contact with each spouse as is consistent with the best interests of the child.
  • Court shall take into account the willingness of the person for whom custody sought to facilitate such contact.

Penalties for denial or breach of access or failure to exercise access

Provincial responsibility.

Mandatory and voluntary supports for separating and divorcing parents

Divorce Act (R.S.C. 1985)

  1. Duty of every barrister, solicitor and lawyer or advocate who undertakes to act on behalf of spouse in a divorce proceeding to advise the negotiating of custody and access matters and to inform the spouse of the mediation facilities known to him or her that could assist in the negotiation.
  2. The federal government implemented the five-year, $50 million Federal Child Support Implementation and Enforcement Fund in 1996 to fund, in part, provincially delivered programs to support post-separation parenting arrangements, including access enforcement.

BRITISH COLUMBIA

British Columbia enforces access by providing penalties against parents who "interfere with" the execution of court custody and access awards.  Its Offences Act provides for fines and up to six months' imprisonment for denial of access, but does not extend to breach of access or failure to exercise access.

Access parents who wish to file interference applications must present themselves to province-run counselling and referral registries, where these exist, before proceeding with the application.  As part of their rulings, judges can order mediation, parenting education, counselling or supervised access, where these services exist, although the legislation makes no specific provision for this.  In very serious cases, the judge can ask the Attorney General to appoint a family advocate to represent the child's interests in court, and children's wishes are specified as a consideration in determining initial access awards.  Parents involved in access enforcement disputes may use the services of family justice centres for counselling or filling out interference applications.

The province's efforts in access enforcement focus on mandatory and voluntary preventative services that may resolve disputes before they reach the court.  The province operates mandatory parent education and counselling programs for separating parents making application to Provincial Court.  However, these programs are not available province-wide and are voluntary where no province-run centres exist.

Parents may be denied access when the child is known to be at serious risk of abuse, and violence against a parent may be construed as part of the considerations that determine the best interests of the child.  Abused spouses may apply to vary orders, and judges can order supervised access where services are available, though there is no explicit legislative authorization for this.

Detail Description

Principles governing access awards

Family Relations Act (R.S.B.C. 1979)

Children's best interests

  • Health and emotional well-being of the child including any special need for care and treatment.
  • When appropriate, the views of the child.
  • Education and training for the child.
  • Capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise these rights and duties adequately.

Provisions for dealing with cases involving child abuse and violence and spousal abuse and violence

  1. Parents may be denied access when child is at serious risk of violence or abuse.
  2. Spousal violence may be interpreted to figure into specified considerations in determining child's best interests.
  3. Courts may orders access supervision with ongoing contact in access enforcement cases.

Role of the child's wishes in access disputes

  1. Child's wishes a consideration in deciding access awards.
  2. Family advocates are appointed by the Attorney General to represent children's interests in the most serious and difficult custody, access and access enforcement cases.  Limited resources mean that advocates are appointed in 40 to 50 cases per year.  A 1992 review of the Family Advocate was very positive.  It was broadly felt that the Advocate facilitated settlement in difficult conflicts that otherwise would have gone to trial.  Judges thought Advocates could be helpful in many more cases, if resources would permit.  (British Columbia, 1992)

Penalties for unwarranted access denial

Family Relations Act (R.S.B.C. 1979)

  1. Fines.
  2. Imprisonment for up to six months.

Penalties for unwarranted breach of access or failure to exercise access

None.


Detail Description

Mandatory supports for separating or divorcing parents

  1. Parenting education.  Parenting after separation seminar.  A three-hour program for separating parents wishing to make application to Provincial Court for custody, access, support or guardianship.  Mandatory in high-population density locations where provincial centres exist.  Parents may be exempted from the course for specific reasons, including immediate need for a restraining order.  An evaluation was completed on the pilot project.
  2. Counselling and application assistance.  A pilot project involving province-run Family Justice Registries in five locations.  Parents making application to Provincial Court meet with family justice counsellors, and may be referred to other information, education or mediation programs.  Counsellor may help couples resolve difficulties without proceeding to court.  Cases involving violence proceed directly to court.  The program has yet to be evaluated.
  3. Courts may refer parties to the education and counselling services at any time in the process.
  4. Courts may also refer parties to a family case conference at any time.

Voluntary supports for separating or divorcing parents

  1. Parenting education.  Parenting after separation seminar.  Voluntary program available in centres where numbers do not warrant provincially run centres.  Provided through purchase of service.  Self-help kits are available to parents in rural areas.
  2. Family Justice Centres.  Province-run centres in 31 sites offer conciliation and mediation, help parties get consent orders and written agreements, and help prepare applications to the court.  Cases involving violence are screened in all cases.  In 1996-97 the Centres took on 2,248 cases and provided 1,336 brief services and referrals.

Mandatory supports for parties in access disputes, including children

Family Justice Registries.

Legal Aid and other legal supports for parties in access disputes, including children

Family Legal Services provides legal services for initial custody and access orders, and variations to those orders when the client or client's children are at risk.

Voluntary supports for parties in access disputes, including children

Family Justice Centres.

Mandatory supports for enforcement for access

Courts may order supervised access (not provided as penalty) where available.  Services are restricted to a handful of sites, part of an original pilot project, and privately provided under purchase of service.  An evaluation was completed in 1995.


ALBERTA

Alberta's Family Law Statutes Amendment Act 1999 introduces provisions for access enforcement to that province.  Prior to 1999, civil contempt was the only remedy available at the Superior Court level for access parents who had been wrongly denied access, and penalties for contempt included fines and up to two years' imprisonment when fines were not paid (plus other minor penalties).  When the access order was granted by the lower court (Provincial Court), any person who contravened the order was liable to be held guilty of an offence, and subject to a fine or imprisonment, or both.  These remedies continue to exist in addition to the new legislation.  Under the new law, penalties range from compensatory access to 90 days' imprisonment.  The penalties apply to custodial parents who deny access without excuse and access parents who breach access by failing to return the child without excuse.  When the access denial is found to be excusable by the courts, judges may still order penalties other than fines or imprisonment.

The new law continues Superior Court jurisdiction and gives a new jurisdiction to the lower court over access enforcement.  Either court has jurisdiction to enforce an access order from either level of court.  When a variation of a Superior Court order is involved, however, the application must go to the Superior Court.  Except for variations, the new law allows most parties to self-litigate enforcement claims through the lower court.

There are no mandatory services for parents involved in access disputes prior to the court hearing.  However, access parents who have failed to attend the mandatory parenting education course at divorce will not have their enforcement applications heard.

Judges may order counselling, education or mediation as penalties for a wrongful or an excusable access denial.  However, there are no provisions for judges to order supervised access and no provincially sponsored system exists.  There are no provisions in the legislation for children's counsel or advocates to represent children's interests in the court disputes, and children's interests are not articulated as a consideration in determining the child's best interests.

Following a recent pilot project, parenting education courses for divorcing parents are now mandatory province-wide when an action for access is brought in the superior court.  The course is not mandatory in the lower court; however, the court may order attendance as a term of relief.  Attend a course is a prerequisite to all divorce applications.  There is no requirement to take the course when the children are all 16 years of age and older, or when both parties certify in writing that they have entered into a written agreement settling all the issues.  Parents can also be exempted from these full-day courses (two half-days) for one month when the child has been abducted, there is a unilateral change in custody, or an interim custody order has been ordered and a restraining order made against one parent.

Voluntary information services are provided by courts for divorcing and separating couples.  The government Family Mediation Services program also provides mediation services, whether court-ordered or voluntary, free of charge to divorcing and separating couples when one parent's income is below $40,000, and at least one child is younger than 18 years of age.  About 765 mediation files are opened yearly.  Another service includes open assessments that contain recommendations regarding access, and may be subsidized when mediation is deemed inappropriate or unworkable.  This service is only available for actions initiated in the Superior Court.  In the lower court, when an access dispute has been adjourned to trial, a court may order an assessment, which will be prepared by Family Court counsellor's at no cost to the parties through the Custody and Access Investigations program.  As well, the skill-based Communication in Conflict three-part group workshop is available to assist parents going through separation or divorce.  The workshop is voluntary and accessible to anyone who contacts the Mediation Program.

Parents may be denied access when the child is known to be at serious risk of abuse.  However, violence against a spouse is not specified as a consideration for judges in determining access awards based on the child's best interests.  Custodial parents at risk of spousal violence may apply to vary the original access awards, and these applications may be heard at the same time as the access enforcement application.

Detail Description

Principles governing access awards

Domestic Relations Act (R.S.A. 1980)

Provincial Court Act(R.S.A. 1980)

Children's best interests

  • Welfare of the minor.
  • Conduct of the parent.
  • Wishes of the mother and of the father.

Court must consider best interests of child.

Provisions for dealing with cases involving child abuse and violence and spousal abuse and violence

  1. Parents may be denied access when the child is known to be at serious risk of abuse.
  2. Spousal violence is not required to be a consideration in determining access awards.
  3. Spousal violence may figure in adjudicating "excusable" access denial, depending on the judge.
  4. Custodial parents at risk of spousal violence must apply to vary the original access awards.

Role of the child's wishes in access disputes

No provisions.

Penalties for unwarranted access denial

Family Law Statutes Act Amendments 1999

  1. Compensatory access.
  2. Providing security (analogous to posting a bond).
  3. Order to attend educational seminar, counselling or similar type of session.
  4. Appointment of a mediator.
  5. Reimbursement of necessary expenses incurred.
  6. Fines not exceeding $100 per day to a maximum of $5,000, and in default, to imprisonment not exceeding 90 days.
  7. Imprisonment, continuously or intermittently up to a maximum of 90 days.
  8. Officer's assistance.
  9. Anything else deemed appropriate to induce compliance with the access order.

Penalties for failure to exercise access

1. Reimbursement of expenses incurred.

Mandatory supports for separating or divorcing parents

1. Parent education.  Parenting after separation program.  Province-wide program for all divorcing parents, teaching how divorce affects children, how divorced couples can work together to protect their interests and their children's.

Voluntary supports for separating or divorcing parents

  1. Information services.  Courts provide legal information, help clients deal with legal system, make referrals and help resolve disputes.
  2. Parent education.  Parenting after separation seminar.  The skill-based Communication in Conflict three-part group workshop is also available to assist parents going through separation or divorce.
  3. Mediation, free when child is younger than age 18 and gross family income of one party is less than $40,000 per year.  About 765 couples use the service yearly.  The Open Assessment program provides recommendations to the Superior Court regarding access when mediation is deemed inappropriate or unworkable.  The service may be subsidized.  Family Court Counsellor with the Custody and Access Investigations program prepare assessments for the lower court, at no cost to the parties.
  4. Family law case management.  Case management can be requested by parties to speed up divorce proceedings.

Mandatory supports for parties in access disputes, including children

1. Judge may order parties to attend an education seminar, counselling or mediation as a penalty for access denial or breach of access

Legal Aid and other legal supports for parties in access disputes, including children

1. Available for parties who cannot afford to hire their own lawyers.  In 1997, 2,091 divorce cases involving child custody or access received aid.

Voluntary supports for parents in access disputes, including children

1. Parent education.  Parenting after separation seminar.

Mandatory supports for enforcement of access

No provincially sponsored service available.


SASKATCHEWAN

Saskatchewan enforces access through a variety of penalties, ranging from compensatory access to the fines and imprisonment of civil contempt.  Similar penalties apply to custodial parents who deny access and to access parents who breach access orders by failing to return the child or to exercise specified access.  There is no information on how often cases enter the court, the conviction rate or the distribution of penalties.  However anecdotal evidence is that the penalties are infrequently used, and the serious penalties rarely applied.  Compensatory access may be the most frequently used penalty.

There are no mandatory services or programs for parents making access enforcement applications.  Voluntary mediation had been available in Superior Court, but was terminated April 1, 2000 when Family Courts in the province unified.  Courts may order parents to mediation as a penalty for unwarranted access denial, where it is available.  Courts may also order access under supervision as a penalty.

Voluntary parenting education is available to separating and divorcing parents around the province.  There are no mandatory services or programs for separating and divorcing parents.

Parents may be denied access when the child is known to be at serious risk of abuse.  Child protection laws link spousal violence with child abuse in assessing risk to the child, so that spousal violence figures in determining the child's best interests when child abuse is present.  There are supervised access centres in Saskatoon and Regina.

Detail Description

Principles governing access awards

Children's Law Act (S.S. 1990)

Children's best interests

  • Quality of the relationship between the child and the person seeking access.
  • Personality character and emotional needs of the child.
  • Physical, psychological, social and economic needs of the child.
  • Capacity of the person seeking access to care for the child during the time child in his or her care.
  • Wishes of the child to extent appropriate.
  • Child should have as much contact with each parent as is consistent with the best interests of the child and for that purpose take into account the willingness of the person seeking custody to facilitate contact.

Provisions for dealing with cases involving child abuse and violence and spousal abuse and violence

  1. Parents may be denied access when the child is known to be at serious risk of abuse.
  2. Child protection laws link spousal violence to child abuse, assessing risk to the child, so spousal abuse figures in determining child's best interests when child abuse is present.

Role of the child's wishes in access disputes

1. Child's wishes considered in determination of child's best interests.

Penalties for denial of specified access

Children's Law Act (S.S. 1990)

  1. Contempt.  For wilful contempt of court orders or resistance to its process or orders.
    • Fines of up to $5,000, imprisonment for up to three months, or both, for first offence.
    • Fines of up to $10,000, imprisonment for up to two years, or both, for subsequent offences.
  2. Compensatory access.
  3. Supervised access.
  4. Appointment of a mediator.
  5. Varying custody or access order.
  6. Requiring respondent to give security for performance of the obligation to provide access (posting a bond).

Penalties for unwarranted breach of access or failure to exercise access

  1. Supervised access.
  2. Appointment of a mediator.
  3. Requiring respondent to give security for performance of the obligation to provide access (posting a bond).
  4. Varying a custody or access order.
  5. Requiring the respondent to provide his or her address and telephone number to the applicant.

Mandatory supports for separating or divorcing parents

Voluntary supports for separating or divorcing parents

  1. Free parent education sessions (six-hour workshops).
  2. Fee-for-service mediation services (sliding scale) to couples in divorce, maintenance, custody and access disputes.  210 people participated in mediation (1997-98).

Mandatory supports for parties in access disputes, including children

Legal Aid and other legal supports for parties in access disputes, including children

Legal Aid available to parties in disputes in which parties are on social assistance, or when costs of a lawyer would reduce their financial resources to social assistance levels.

Voluntary supports for parents in access disputes

  1. Court-provided supervised access and exchange.  Roughly 60 cases per year, in Saskatoon and Regina only.
  2. Looking at developing access sites elsewhere in the province where rural parents may come to for visits.

Mandatory supports for enforcement of access

  1. Supervised access where available.
  2. Restraining orders (restraining person from molesting, annoying, harassing or otherwise interfering with the applicant).
  3. Recognizance.
  4. Posting a bond.

MANITOBA

In Manitoba, access is enforced through several laws, including provisions for mediation in The Court of Queen's Bench Act, and penalties ranging from fines to imprisonment for civil contempt.  Access enforcement applies to custodial parents who deny access without excuse, as well as to access parents who breach access by failing to return the child on time.

There are no mandatory programs or services prior to the court hearing for parents bringing access enforcement applications.  However, once the case reaches court, judges may refer people to mediation.  The courts may order supervised access as one of the remedies for breach of access or access denial.  However, although some government-supported supervised access centres exist, there is no province-wide system.  The courts' ability to order supervised access depends on availability of service.

Voluntary mediation and parent education is available without cost to parties involved in access disputes, and for divorcing and separating parents.  The province also offers voluntary programs for children of divorcing or separating parents and parents in dispute.

Whether access is in the child's best interests determines whether access is granted.  Parents may be denied access when the child is known to be at serious risk of abuse, and violence against a parent may be a consideration in awarding and adjudicating access disputes.  The abused spouse can seek a wide range of protective relief (e.g. restraining order) and make a request to vary the access order.  The court may require access supervision.

Manitoba's approach to access enforcement and to other family law issues focusses on dispute resolution alternatives to litigation, and it is increasingly looking to mediation.  The Manitoba Civil Justice Review Task Force (1996) endorsed an alternative dispute resolution approach, and recommended a system of mandatory screening for mediation for all separating parents, and expansion of the mandate of existing government-sponsored, court-connected mediation services to provide comprehensive mediation services for access, custody, support and property issues.  A comprehensive mediation pilot project is under way (see Chapter 3, section 3.2 for a preliminary evaluation).

Detail Description

Principles governing access awards

The Family Maintenance Act (R.S.M. 1987)

Children's best interests

  • Views and preferences of the child when appropriate.
  • May include investigation by qualified third party to determine best interests.

Provisions for dealing with cases involving child abuse and violence and spousal abuse and violence

  1. Parents may be denied access when the child is known to be at serious risk of abuse, and violence against a parent may be construed as a consideration in awarding access and adjudicating access disputes.
  2. The abused spouse can seek a restraining order and make a request to vary the access order.  The court may require access supervision.

Role of the child's wishes in access disputes

1. Wishes of the child are a consideration in determining the best interests of the child.

Penalties for unwarranted access denial

Child Custody Enforcement Act (R.S.M. 1987; contempt clauses)

Family Maintenance Act (R.S.M. 1987)

  1. Civil contempt:  fines of up to $500 and imprisonment for up to six months.
  2. Access supervision.
  3. Access to information.
  4. Compensatory access.
  5. Reimbursement to applicant of reasonable expenses incurred by wrongful denial.
  6. Appointment of a mediator to assist resolution.
  7. Restraining order.
  8. Court-ordered assessment report.
  9. Apprehension order.

Penalties for unwarranted breach of access or failure to exercise access

  1. Reimbursement of applicant for reasonable expenses incurred as a result of failure to exercise.
  2. Appointment of a mediator.
  3. Court-ordered assessment report.

Mandatory supports for separating or divorcing families

1. Parenting education.  For the Sake of the Children program (see below) is a pre-requisite for parents wanting to participate in the province-wide voluntary mediation program.  It is not mandatory otherwise.

Voluntary supports for separating or divorcing families

  1. Parent education.  For the Sake of the Children.  Two-session program for separating and divorcing parents intended to provide them with legal information and a greater understanding of how divorce and post-divorce arrangements may affect children.  High conflict parents are taught a low-to-no-contact approach to communications.  An evaluation has been completed.
  2. Voluntary mediation.  Offered to Manitoba families free by Family Conciliation, a branch of the government.
  3. Mediation pilot program.  Comprehensive Co-Mediation and Mediation Pilot Project.  Pilot project providing co-mediation (lawyer and social worker or family specialist team) to separating or divorcing couples.  An evaluation has been completed.
  4. Case management.  Ongoing project in which couples are selected on a random basis for case management by a judge.
  5. Children's program.  Help children ages 8 to 12 cope with separation or divorce; offered by Family Conciliation.

Mandatory supports for parties in access disputes, including children.

1. Parent Education.  For the Sake of the Children is a pre-requisite for parties wanting to mediate access disputes through Family Conciliation (see above).  It is not mandatory otherwise.

Legal Aid and other legal supports for parties in access disputes, including children

  1. Legal Aid Manitoba will fund applications for eligible parties, and will cover costs of private home-study assessments (usually) when parties agree to abide by its recommendations.
  2. Legal Aid Manitoba will provide counsel to pursue civil remedies to enforce custody and access orders.  In 1997-98 there were 22,000 application for Legal Aid, and 17,000 certificates issued.

Voluntary supports for parties in access disputes, including children

  1. Counselling for parents regarding custody and access.  Attendance at part 1 For the Sake of the Children program is a prerequisite.
  2. Mediation.  Offered to Manitoba families free by Family Conciliation, a branch of the government.

Mandatory supports for access enforcement

1. Courts may order supervised access.  However, government-funded supervised access services are available in Winnipeg and a few regional centres, on a fee-for-service or means-tested basis.

Date modified: