Child Access in Canada: Legal Approaches and Program Supports
This chapter provides brief descriptions of the different legislative approaches to access disputes, including access enforcement, in the jurisdictions of Australia (which has a federal family law system), the U.S. state of Michigan, and each of the Canadian provinces and territories. Included in each account is a description of the program supports and services used to facilitate access or access enforcement. The differences in the models demonstrate some of the possible variations in approaches to access enforcement and facilitation.
In 1996, Australia proclaimed new family law reforms. While the reforms made only slight changes to existing access enforcement provisions, they introduced fundamental new legal principles to govern post-separation parenting. A recent study of the reforms' impact found significant changes in the awarding of access and, on paper at least, greater sharing of parental responsibility between parents (Rhoades et al., 1999). The reforms appear to have significantly changed the post-separation parenting context in which access enforcement disputes may arise. The report's main findings are outlined below.
The Legislative Framework Governing Access
The 1996 family law reforms replaced the traditional categories of "custody" and "access" with a single concept of "parental responsibility". Custody typically entails that the child both lives with and is the responsibility of the custody parent, usually the mother. The concept of custody, therefore, fosters a view of the child as a prize awarded to one parent after divorce, with the other parent left on the periphery as periodic visitor. The new law's notion of parental responsibility severs "residence" from "responsibility" in principle. How much "residence" a parent has becomes independent of how much "responsibility" that parent has for the day-to-day caring for the child and the decisions affecting the child's life.
The intent of these category shifts is to have post-divorce parenting arrangements governed by the best interests of the child (see Appendix 2), rather than the parents' interests or rights regarding their children as property. In keeping with this, the children's wishes are an important consideration for judges determining the child's best interests in parenting and access disputes, and children can participate in disputes either before the court in person or through a court-appointed lawyer.
The new law also conceives of parental responsibility as ongoing and shared. It presupposes that residence and responsibility will be shared more freely between both parents than either would be in the custody/access model. There is no presumption of residence or access in the new law, and no onus on a parent to establish that access would be detrimental to the child.
Under the new law, the responsibility of access parents for a child may or may not amount to more than maintaining contact, depending on the parenting agreement. But contact is now seen as a parental responsibility rather than an individual "right" to be exercised or not at will. Hence, the new law treats denial of access and failure to exercise access the same, as equally failures to exercise parental responsibility.
As a matter of practice, most Australian mothers continue to be the residence parent, and fathers the contact parent. Two thirds of post-separation parenting agreements ordered by the courts are for "residence/contact", although this is significantly lower than the four fifths of agreements that used to provide for "custody/access" (Rhoades et al., 1999). Some 12 percent of parenting agreements now awarded are for shared residence, even though residence is shared equally (that is, the child actually lives with both parents) in only a fraction of those cases. Parenting agreements still typically give the contact parent every second weekend with the child, who thus "lives" with the contact parent two days out of every fourteen.
Since most children continue to reside with their mothers, mothers still bear most of the day-to-day caring responsibilities for their children. However, about half the lawyers recently surveyed say they include provisions regarding day-to-day and long-term parental responsibility in parenting orders.
About 45 percent of court orders include no "responsibility" provisions, while 35 percent give sole daily responsibility to the resident parent and 20 percent allocate each parent some responsibility. Sole responsibility tends to be awarded in cases involving violence or risk of sexual abuse, when there are high levels of conflict among the parents, and if the contact parent has a psychiatric disability of an "unsettled lifestyle".
Trends in Access Awards
The new laws assert access or contact to be a child's right, except when it would be contrary to the child's best interests. A separate clause (s. 65E) provides that the court must regard the best interests of the child as the paramount consideration in deciding whether to make a particular parenting order (Rhoades et al., 1999).
The Family Court and High Court have fleshed out these provisions with case law provisions. They explicitly state that there is no legal presumption for contact and no onus to demonstrate that a parent should not receive contact. Nonetheless, the court will
"give very great weight to the importance of maintaining parental ties," since it is considered prima facie in the child's best interests to maintain the filial relationship with both parents (Rhoades et al., 1999).
The evaluation study found that many lawyers and court counsellors think that fathers in general are pursuing more contact and more extensive contact, and that nowadays they often obtain orders for contact in circumstances in which they would not have been successful before the reforms (Rhoades et al., 1999). In fact, the number of applications for contact has jumped sharply-from around 14,000 in 1994-95 and 1995-96 to almost 24,000 in 1997-98 (Family Law Council, 1998c). However, the Family Law Council cautions that this increase might reflect a surge of parents seeking a new arrangement merely because they thought they would fare better under the new laws.
Almost all interim court orders now award access pending final hearing, which typically involves waiting several months. Only four percent of non-residence parents are denied access at the interim proceedings, compared to 24 percent before the reforms, when the courts tended to deny access in difficult cases until the evidence could be properly assessed at the final hearing. However, 23 percent of non-residence parents are denied access in final court orders now, slightly more than under the previous laws. Significant numbers of non-residence parents are therefore having contact with their children on an interim basis before being denied access at the final hearings (Rhoades et al., 1999).
While the evaluation study did not explore whether the new laws have affected exercise of access, there is some evidence that access parents' opportunities for contact have increased. About one third of the lawyers surveyed think that fathers are generally receiving more generous contact awards, such as extended weekend contact (to Monday morning, rather than to the traditional Sunday night) and more days than the standard two days out of fourteen. Judges reported that interim access applications for more than the standard alternate weekend had become more frequent, and some said they were generally granting more access when possible.
The 1996 reforms made only minor changes to the access enforcement provisions, although they did replace "the welfare of the child" with "the child's best interests" as the governing principle in deciding access disputes, including access enforcement applications. Although the new laws permit court applications for denial of access, failure to exercise access and breaches of access equally, the overwhelming majority of court applications are made by access parents charging access denial. As indicated earlier, many residence parents do not appear to be fully aware of their legal entitlements (Family Law Council, 1998b).
The Family Law Council of Australia recently conducted a study of access enforcement and penalties in Australian family courts. It found that of the 2,000 a year or so breach of access or injunction applications that entered the Australian courts in 1996 and 1997, 600 or 15 percent of them went all the way to a final judgement over those two years (Family Law Council, 1998b). Of these, two thirds were related to access (contact) issues and a quarter involved contempt charges (a more serious claim that involves demonstrating the action was wilful and deliberate). Men made about 75 percent of them, and women (no information in the other cases) about 19 percent. Since the Australian Family Court estimates that only five percent of all cases commenced in Family Court reach final judgement (ALRC 1996, Harrison 1997), the Court appears to resolve relatively fewer access enforcement cases than other kinds of family disputes.
Trends in Litigation Rates
The 2,000 or so breach of applications made in 1996 and 1997 were a small fraction of the 22,000 to 23,000 contact related cases that came before Australia's Family Court annually, of the total 100,000 or so cases commenced in the court annually, and of the 51,000 divorces each year. The majority of these applications were self-litigated, although most cases that reached final hearing had legal representation (Family Law Council, 1998b).
However, litigation rates have risen sharply under the new laws, if less dramatically than the increase in applications for contact. Applications for denial of access rose from 786 in 1995-96 to 1,434 in 1996-97 and 1,659 in 1997-98. These figures exclude the 400 or so applications for contempt involving access (Rhoades et al., 1999).
In a recent study on the impact of the new laws, several lawyers said they thought disputes between parents had increased, mostly instigated by access fathers who had expected greater parenting rights under the new laws, and/or felt that residence mothers were not sharing decision-making responsibilities properly (Rhoades et al., 1999). Increasing numbers of breach of access applications seem to be about failure to share parenting responsibilities rather than about breaches of visitation arrangements. To show how detailed complaints can be, the study described one Duty List case in which the father brought an application because the residence mother, finding a pornographic magazine in a boy's bedroom, had not taken him to a counsellor (Rhoades et al., 1999).
Lawyers report that they now routinely draft very specific orders for the allocation of day-to-day responsibilities (e.g., how decisions will be made for taking the child to the doctor) and access arrangements (e.g., exact pick-up times) to minimize disputes. Several judges echoed the lawyers' remarks, noting that applications were frequently frivolous and without merit. One judge said: "50 percent of those applications don't have merit" (Rhoades et al., 1999).
The study findings indicate that the new provisions for sharing day-to-day parental responsibilities between residence and access parents have opened up new litigation territory for some couples.
No studies on re-litigation rates were found.
Convictions and Penalties
Australian law enforces access with a range of penalties (see Appendix 2). The Family Law Council study found that the courts convicted in 37 percent of the 600 finalized cases, while the rest were dismissed or withdrawn, some apparently by consent. Some 38 percent of the defendants pleaded not guilty, and 15 percent pleaded guilty, with the remainder making no plea or no plea being recorded.
The Family Law Council found the conviction rate in access enforcement cases was roughly the same as in other Australian tribunals and courts, such as the Commonwealth Ombudsman and the Administrative Appeals Tribunal. At least one party had legal representation in almost 85 percent of cases, and both parties had representation in 44 percent of cases. Male defendants were more likely to be convicted than female defendants were.
Judicial officers' reasons for dismissing applications included difficulties ascertaining the facts (given the high levels of hostility between the parties), the best interests of the children, the respondent's provision of a reasonable excuse, delays between the time of the breach and the court hearing, and a belief that criminal penalties are inappropriate when orders relate to parenting.
Among those parents convicted, about 18 percent received no penalty and 49 percent received recognizance, that is, were placed on a bond to comply by the provisions of the order. About 14 percent were required to give compensatory contact, 10 percent were fined an average $1,200 (two percent suspended fines), five percent were imprisoned (one percent suspended imprisonment), and five percent received other penalties, including two awardings of costs to the applicant, one community service order, one order to repay, one reprimand, and one order to attend a parenting education course. A few cases received multiple penalties. Clearly, the Australian courts rarely punish breach of access in the traditional legal sense. In its report on the study, the Family Law Council resisted requests from many submissions to punish access breaches more vigorously. Instead, it proposed a three-tiered enforcement approach aimed at preventing and remedying access disputes before imposing punishment such as fines and imprisonment as a last resort (Family Law Council, 1998b).
Only a quarter of the cases were finalized within a month of application, and most were finalized within six months. Given the long delays, compensatory access is increasingly seen as the main form of redress (Family Law Council, 1998b).
The Australian government recently introduced new enforcement legislation that proposes a three-tiered system for the enforcement of parenting orders. Penalties for unwarranted access denial escalate with the severity and frequency of access violation. The legislation provides a scale of penalties ranging from compensatory contact or an order to attend a parenting program for initial non-willful offences, to fines and imprisonment for offences demonstrating willful disregard for parenting obligations (Parliament of Australia, 2000).
Supports for the Resolution of Disputes
As indicated earlier, only five percent of all cases commenced in Australia's Family Court reach a final judgement. Three quarters of all cases are resolved through an extensive system of court counselling.
Counselling and Conciliation
Counselling is the primary support used by the Australian court system to reduce court litigation in family disputes. It is freely available to anyone bringing a case to family court, and at any stage throughout the process up to the final judgement. In addition, judges may order counselling before proceeding with cases. In 1995-96 nearly half the courts' counselling clients were voluntary, and 47 percent were ordered to attend. The remainder were seen before trial for a family assessment (an in-depth appraisal of especially difficult cases, typically involving the child's welfare) done by a counsellor at a judge's request (Harrison, 1997). All the voluntary counselling cases and almost all the court-ordered counselling cases are confidential. The in-depth appraisals are not.
Counselling services include exploring alternatives to litigation, helping couples make their own decisions, educating clients about the law and their legal options, and giving clients the skills to resolve future disputes (ALRC, 1997). The Chief Justice characterizes the court's counselling as involving a mixture of techniques to effect both change and agreement, in contrast to task-oriented mediation, the goal of which is agreement (Nicholson, 1994). Specifically, the Australian Family Court provides conciliation counselling and a hybrid of conciliation counselling and conciliation (Brown, 1997b). The former is therapeutically oriented, and deals with underlying emotions blocking resolution, is educational to parents about the likely impact of their dispute on their child and the over-riding principle of the best interests of the child, and aims to settle the dispute and resolve the conflict. The latter is conducted by a lawyer and counsellor together. It is oriented towards problem solving, involves solution-based bargaining, is educational in the ways described above, and evaluates the likely outcomes. Family court counsellors do not provide relationship-based counselling.
Court figures show that nearly three quarters of clients who attend counselling before filing an application settle at least one issue at that stage (Nicholson, 1994). Nearly 60 percent of clients who attend counselling after their first court appearance (many of whom would have been ordered to do so by the judge) resolve at least one issue (Harrison, 1997). Parents who attend counselling as one of the first steps in the case management guidelines that govern how family court cases proceed through the courts also had higher rates of agreement than those who attended counselling farther along in the litigation (Nicholson, 1994). About 60 percent of all counselling cases are fully resolved without having to return to court (Nicholson, 1994). However, agreement rates are lower in cases involving charges of child abuse (50 percent full or partial agreement), and also when domestic violence allegations are involved (57 percent) (Brown, 1997a).
Who attends counselling? All counselling clients, whether voluntary or court-ordered, tend to have higher levels of conflict and poorer communication than those who use voluntary mediation. Serious issues are often involved, such as family violence, child abuse or neglect, drug and alcohol problems, and children refusing contact, although the issue of residence is less often an issue among court-ordered families (Brown, 1997a). Counselling clients also have lower incomes and are less educated on average than mediation clients (Brown, 1997a).
Counselling caseloads have risen sharply since the introduction of the new family law reforms, and counselling resources are apparently stretched to the limit. The number of parents seeking voluntarily counselling (before and after filing claims) rose 41 percent between 1995-96 and 1996-97, before falling slightly in 1997-98 (Family Law Council, 1998c). The courts have introduced telephone counselling to meet the increased demand. They are also ordering many more parents to counselling: 14,000 or so in 1997-98 compared to 10,400 or so in 1995-96 (Family Law Council, 1998c). The number of in-depth family assessments ordered by the courts has also risen, from about 1,500 in 1994-95 to nearly 1,800 in 1997-98 (Family Law Council, 1998c). The rising number of in-depth assessments suggests that more difficult cases, usually those involving direct risks to children's welfare, are entering the courts.
Given that counselling is the Australian court system's first and main "line of defence" in dealing with family law disputes, the sharp increase in counselling cases suggests a system under siege from a rising tide of hostile parents. However, as mentioned earlier, some of the increase may be parents who, unhappy with their arrangements made under the old laws, felt they would fare better under the new.
The number of contact enforcement cases seen by counsellors has also risen recently, from 894 in 1996-97 to 1,088 in 1997-98 (Family Law Council, 1998c). However, the Family Law Council's enforcement and penalty study reveals that for access enforcement cases that go beyond a certain point, counselling is ineffectual. Almost 20 percent of the 600 cases that reached final judgement were ordered into counselling at some point. The proportions varied widely by states, with fewer than 10 percent of Tasmanian cases but nearly 70 percent of Western Australian cases being ordered to counselling. Yet the conviction rates in these two states varied little (42 percent in Tasmania and 44 percent in Western Australia) (Family Law Council, 1998b). The Council attributed the wide variation to differing interpretations about when the court should order counselling.
Counselling services provided by the Family Court do not screen cases for domestic violence and abuse, as mediators must (Nicholson, 1994; Brown, 1997b).
Voluntary mediation is available to parents involved in access and custody disputes at any point in the process in Australian courts. Judges may also order it, but with the parties' consent. The court is currently expanding its mediation services (Nicholson, 1999a), with one-time mediation in single-issue matters as the model of choice, and focussing more attention on it as a resolution strategy. The court also links with outside mediation providers, including the federal government's Legal Aid and Family Services (LAFS), which funds 13 mediation services.
An evaluation of the LAFS mediation centres found that clients in the Sydney and Melbourne centres reached agreement in about 75 percent of cases (ALRC, 1997). It also found mediation to be less expensive than litigation, although the analysis was based on the assumption that cases receiving counselling did not reach final hearing.
The laws provide no special provision for reporting back to the court after mediation, and there is some discussion about whether the integrity of mediation would be compromised if mediation results were reported back to the courts (ALRC, 1997).
Australian mediation guidelines require mediators to screen clients for abuse or domestic violence issues at introductory intake sessions. Mediators may decide to proceed with mediation or refuse it, regardless of the parties' wishes, depending on each case. However, if mediation continues, mediators would see each parent separately to minimize unequal bargaining (Nicholson, 1994).
There are no provisions for arbitration to be used in custody and access disputes in Australia, although there are some unused provisions for the arbitration of child support and property disputes.
Information services are provided in all Australian family courts, and the Family Court says it is in the process of improving them. They are run by social services professionals rather than lawyers.
Cases Involving Violence and Abuse
Australian courts are increasingly turning to supervised access to preserve contact in extremely difficult cases, especially those in which violence and abuse to a child or spouse are involved. Contact centres typically provide a safe supervised drop-off and pick-up point for high conflict parents, as well as a safe supervised space where access parents can spend one or more hours with their children. The recent evaluation of the pilot project is described in Chapter 3, section 3.3.
The 1996 reforms also allow access to be denied when a child is at risk of violence or abuse. One of the recent study's main aims was to assess how often, and how much, access was being awarded in such cases. It found that significant numbers of parents are awarded interim access but denied it at final access hearings months later, which suggests that interim access is being awarded in cases when the child is at risk of violence or abuse. In some cases, interim access is restricted to supervised or indirect access (for example, by way of cards or letters).
Nevertheless, while the apparent intent of the law was for the family violence clause to trump the "child's right to contact" clause, this does not seem to be happening in the awarding of interim access (Rhoades et al., 1999). The study found that judges now rarely deny fathers interim contact orders, even when they have a family violence order (which prohibits them from approaching the victim). In some states, the family violence orders include the clause
"except for the purpose of exercising contact ordered by the Family Court" (Rhoades et al., 1999).
There is no consensus in the legal community about the extent to which this practice is due to ignorance of the law, or common interpretation of the law giving contact precedence over all other considerations, or, in the case of interim orders, to judicial fears of prejudicing final hearings by denying all access before the facts have been assessed.
Michigan enforces access through the arms-length Friend of the Court Bureau, set up in 1919 to enforce child support in divorce cases on behalf of minor children at risk. In 1983, its mandate was expanded to include the enforcement of custody and visitation (access) orders.
The Legislative Framework Governing Access
The Michigan Child Custody Act lists extensive considerations for determining custody awards, including the child's preferences, the capacity of the parents to give the child love and affection, the extent to which the custodial parent will encourage contact with the other parent, and the existence of domestic violence towards either child or spouse (Model Friend of the Court Handbook, 1998).
However, Michigan law awards access to all non-custodial parents, except when there is clear and convincing evidence that access would endanger the child's physical, mental and emotional health. Thus, the best interests of the child primarily do not govern access awards, access disputes, or judgements on applications for access enforcement. Rather, there is a legal presumption of access, that is, access is conceived as a fundamental parental right that the access parent is free to exercise at will. The regulations are explicit that failure to exercise access is not a violation. In fact, the custodial parent is held responsible for promoting a positive relationship between the child and access parent, one that fosters the child's desire to see the access parent and vice versa. The child's wishes do not count in either the decision to award access or the decision about the kind of access awarded. Children of any age are expected to obey the access order.
Nonetheless, court decisions about the frequency, duration and type of access to be awarded are governed by a long list of considerations, including the child's age, the access parent's exercise of access track record, and the risk of violence and/or abuse to the child or spouse (see Appendix 2). The access parent can only forfeit his or her right to access by endangering the child, but the courts can restrict the exercise of that right when the access parent seems unable or unwilling to exercise it properly.
There are no readily available data on how many Michigan parents are denied access, or on how many parents have their access restricted, or in what ways. The standard access award consists of two days access out of fourteen, or every second weekend. No studies were found documenting the incidence of failure to exercise access.
Michigan enforces access through the Friend of the Court (FOC) office attached to each county court. Parents who believe there has been a violation of their parenting order can apply to the FOC office to have their order enforced, and can seek FOC help in writing their application. In some counties, custodial parents can also apply to the FOC to enforce a breach of access when the access parent has failed to return the child on time. It is not known how many applications custodial parents bring.
The Friend of the Court decides whether the parenting order has been violated by considering the access parent's claim and any reply the custodial parent may wish to make; custodial parents must be notified of the claims made against them, and are given a few days to reply. If there has been a violation, the FOC may decide to meet with the parties to try to resolve the dispute, or may refer the parties to voluntary mediation or, in some counties, to binding arbitration, with their consent. Since the FOC is deciding only whether access has been denied or breached, and not whether the denial or breach was warranted, its task is simply to establish facts. If the FOC meeting with the parties or the voluntary mediation fail to resolve the dispute to everyone's satisfaction, the FOC can impose a penalty of compensatory access, or hand the case over to the court for a contempt of court hearing.
FOC data indicate that the FOC found 5,570 violations of parenting orders in 1998 (it is not known how many applications the FOC rejected as not involving a violation of parenting orders). The FOC disposed of or resolved slightly less than half of these violations, while 2,993 went on to civil contempt hearings before a judge or referee. The proportion of access denial cases going on to full court hearing in Michigan appears to be considerably higher than the 15 percent that reach final hearing in Australia. This may be due to the efficacy of conciliation counselling or to the different considerations that enter into resolving disputes. As already stated, under Australian law, the child's best interests govern the resolution of access denial applications, whereas in the Michigan law, the governing consideration is whether the access parent's right to access is being violated, in the absence of any clear demonstration that the access endangers the child. Under Michigan rules, the custodial parent has fewer grounds to deny access and hence fewer defences against a finding of contempt.
There was widespread complaint during the public debates on the 1996 amendments to the law that FOCs often issued recommendations without bothering to meet with the parties. Apparently, many FOCs only meet with the parties if they request it (Ferrier, 1996a).
During the debates, many access and custodial parents complained about a lack of accountability by FOC officers as well. There appears to be no right of appeal against their decisions, and although unhappy parents can file grievances against FOC officers when they feel they have been treated unfairly, the grievances cannot overturn an FOC decision (Ferrier, 1996b).
Parents also complained about gender bias. Custodial parents claimed the FOC hounded them to provide access, but did not vigorously pursue access parents for child support. Access parents complained of being hounded for child support payments, but of not getting their children for visitation (Ferrier, 1996b).
Once the access denial case reaches the court as a civil contempt charge, the custodial parent must show good cause why he or she denied access, or face penalties ranging from compensatory access to fines and imprisonment. The judge may also order one party to pay court costs, or compensate the other party for costs incurred over the course of the case, especially if the case is judged frivolous. There are no data on the conviction rates for these cases, or on the distribution of penalties for those convicted.
When a custodial parent believes the access parent is drunk, on drugs, or otherwise likely to neglect, abuse or maltreat the child during an access visit, he or she must deny access or risk being charged with neglect. However, he or she must then be willing to go to court to "show cause" as to why access was denied if the access parent files an application. Drugs and alcohol figure prominently in many cases when the custodial spouse defends the denial of access. Since the FOC, as an enforcement agency, does not investigate charges of abuse or neglect, the custodial parent must notify Protective Services of the Family Independence Agency, which will investigate the charges. However, Protective Services (the Michigan equivalent of Canada's Children's Aid Societies) does not investigate domestic violence allegations, except where they coincide with violence against the child.
Custodial parents who fear violence from the access parent must apply to court for an order to vary the access order, and must make the case there for restricting access because of the violence. An application to vary the order will at best lead to restrictions on the access parent's access, in the absence of violence or abuse against the child. Custodial parents' applications to vary access orders can be heard at the same time as the contempt hearing into the violation of the access order, although in some parts of the state, where the courts are not unified, the two orders will be heard in two different courts.
Supports for Resolving Disputes
Michigan legislation mandates that certain program supports and services be provided to help resolve access disputes that come to the court. These are described below. Individual counties provide varying levels of these supports, and many provide additional services.
As indicated earlier, Friend of the Court offices provide voluntary mediation for couples when parenting orders are violated. The Friend of the Court also provides mediation for couples involved in access (and custody) disputes that do not involve access enforcement, as part of its mandate to resolve disputes not involving violations. Separating and divorcing parents who cannot agree on the terms of parenting orders, or parents who cannot agree on revisions to their existing orders, can ask for mediation at any stage of the process, from making application to final hearing. The FOC mediated 2,531 custody and access disputes in 1998.
Court-sponsored mediation is conducted by an attorney with at least five years' experience in law, especially family law, and the parents may bring their own lawyers. Mediation is confidential. If the parents fail to reach agreement, the case goes to court. There do not appear to be any safeguards against unequal bargaining in mediation (this may depend on the specific program) or any restrictions on mediation in cases when there are allegations of violence to or abuse of spouse or child. In fact, FOC regulations specify that it is the responsibility of parents to raise allegations of abuse or violence in disputes over parenting orders or custody. The court mediation is full fee for service.
Some counties offer voluntary binding arbitration in addition to, or in lieu of, voluntary mediation. An individual arbitrator or a panel may hear the case. Once the arbitrator decides, the decision becomes binding unless the court vacates it.
Some FOC offices offer conciliation for disputes not amenable to mediation. Conciliation may not be voluntary but required by the FOC or ordered by the court, and when the parties do not reach agreement, the conciliator may prepare a recommendation and the court may order a decision based on the recommendation.
Legislative responsibility for access and access enforcement is shared among the federal, provincial and territorial governments. The federal Divorce Act applies in divorce proceedings when custody and access are at issue, although custody and access issues may also be resolved under provincial legislation (see Appendix 2). Provincial and territorial statutes govern non-divorce matters that fall within provincial constitutional responsibility, including separation proceedings involving custody and access, and access enforcement. The provinces and territories also deliver programs and services that support separating and divorcing parents as well as parents engaged in access disputes, although the federal government co-funds some of these programs.
Approaches in the provinces and territories to access disputes and access enforcement vary significantly. Several provinces, including the populous provinces of Ontario and Quebec, continue to rely on some form of civil contempt as the primary legal remedy for access denial. Others supplement the fines and imprisonment for civil contempt with remedial penalties, the most common being compensatory access and reimbursement of the costs of incurred as a result of access denial or breach of access. Several provinces make explicit legal provision for courts to appoint mediators or order supervised access in access denial cases.
Most provincial and territorial legislation treats access denial and breach of access in the same way, and few jurisdictions also include cases of failure to exercise access under the same laws. However, when Alberta introduced access enforcement legislation in 1999, failure to exercise access was not included as a violation of an access agreement. The custodial parent could, nonetheless, make an application for reimbursement of expenses.
The main strategies in provinces and territories for dealing with access disputes and enforcement generally focus on prevention and resolution of disputes before they reach final court hearing. For example, Manitoba has offered free custody and access mediation services for many years, and has now developed a comprehensive co-mediation program to allow parents to deal with a wide range of family issues including access. British Columbia, on the other hand, relies more on voluntary counselling for separating and disputing parents as a way to reduce the incidence of access denial.
Most provinces and territories now augment mediation, counselling and other remedial programs with preventive parent education seminars. Several provinces have made such programs mandatory for separating or divorcing parents. However, there are relatively few programs to support access enforcement and thereby reduce the incidence of access denial. There is considerable interest in supervised access and supervised exchange for the most difficult access cases, but these services are still largely confined to major cities.
Appendix 2 provides a more detailed account of the legislative framework and program supports available in each province and territory.
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