Child Access in Canada: Legal Approaches and Program Supports
Most jurisdictions increasingly combine legislative provisions with programs and services to address the cluster of access disputes that includes access enforcement. These programs are often legally mandated and delivered by the courts themselves, as in Australia. These are three types, seen from the perspective of access enforcement: prevention, resolution and enforcement. The following programs are some of the most prominent, although the list included here is neither comprehensive nor exhaustive.
Given the high level of conflict among many divorcing couples, and the risk that this conflict will become entrenched and fuel ongoing access disputes, jurisdictions are increasingly adopting programs aimed at reducing the conflict and focussing parents on their children's best interests.
Several jurisdictions use parenting plans as a way to promote access agreements and prevent subsequent disputes. The objective is to have parents sit down together to work out comprehensive plans for allocating residence and other parental responsibilities. The assumption is that by working through these issues together outside a courtroom, parents are more likely to reach workable and durable agreements that focus on the child's interests, and do it with less conflict.
In the U.S., the state of Washington's Parenting Plan Act of 1987 requires almost all separating and divorcing parents to replace the old custodial agreements (Tompkins, 1995). The agreements must set out a detailed residence schedule, list the form of decision making regarding the child's health, education and religion, and agree to a dispute resolution mechanism (Canadian Research Institute for Law and the Family, 1992).
One study conducted shortly afterwards (Ellis, 1990; Tompkins, 1995) found that most of the parenting plans were quite detailed and specific, with half including specified decision making about child care, and some even including provisions on teenage driving decisions.
The survey of post-reform parenting plans showed that more parents were sharing residence-20 percent compared to only three percent before the reforms-and that a little more than half the parenting plans specified shared decision making. The proportion of sole residence declined for both fathers and mothers. Mothers retained sole decision making in one-third of cases, and fathers had sole decision making in 10 percent of cases. All the fathers who had sole residence had sole responsibility, while half the mothers who had sole residence (70 percent of all cases) had sole responsibility (Tompkins, 1995). How many of the shared residence arrangements are symbolic, rather than actual, is not known.
The study found almost 70 percent of couples chose mediation as the way to resolve future disputes, compared to 16 percent who chose court litigation and seven percent who chose counselling. About 40 percent of the lawyers interviewed thought parental conflict had not been reduced by the introduction of parenting plans, or that parents were not more focussed on their children's needs and best interests.
Another recent study of the legislation found only a handful of plans provided for more alternate residential time than every other weekend, and about one fifth had no specified residential schedule (Lye, 1999). Three quarters of the primary residential parents were mothers. Three quarters of parenting plans specified joint decision making, but the parents and providers surveyed said few parents actually make decisions jointly. Parents and providers also expressed frustration at the limited choice of arrangements provided by the state's parenting plans. Many said it was hard for the ex-spouses to reach agreement. They also felt the process lacked safeguards to protect domestic violence survivors while the plan was being worked out, and to ensure their safety under the plans that were reached.
In Australia, the 1995 family law reforms introduced voluntary parenting plans, and provided for couples to legally register these plans if they wished. A 1998 study of the impact of the 1995 reforms (Rhoades et al., 1999) found that neither counsellors nor lawyers used them regularly. Some 40 percent of court counsellors had never used a plan, and even fewer private counsellors had used them. However, mediators reported using them regularly (43 percent said
"very often"), largely to assist settlement, the intention of the law.
As indicated in Chapter 2.1, the proportion of cases of shared residence rose after the reforms, to 12 percent, including a small proportion of equally shared residence. Some 55 percent of post-divorce parenting agreements included responsibility provisions. Most of these (35 percent of all agreements) gave sole responsibility to the resident parent and 20 percent shared responsibility (Rhoades et al., 1999). It is not known how much these changes are attributable to parenting plans, rather than the larger shift from "custody/access" to "shared parental responsibility" as the guiding categories of post-divorce parenting. No detailed analysis was done comparing the arrangements chosen under parenting plans with agreements chosen without such plans.
No comparisons have been done to see whether parents who made parenting plans had more access or responsibility disputes after the reforms than before, or whether they resorted more or less to mediation, counselling or litigation to resolve disputes, or how often. No information was found on whether fathers are exercising access more than before. However, the general increase in litigation over access (its awarding and its denial) indicates that the introduction of parenting plans has not reduced post-parenting litigation over these issues. On the contrary, the severing of residence and responsibility (which were welded together in the old category of "custody") appears to have created new opportunities for legal conflict among some ex-spouses, resulting in increasing litigation brought by access parents. The Australian experience, therefore, appears to confirm the anecdotal information about the State of Washington's experience.
The registration of parenting plans also seems to have proven cumbersome and costly, and there have been recent recommendations for eliminating registration (ALRC, 1997).
In summary there is little evidence yet that parenting plans alone lead to greater sharing of residence or responsibility among parents in post-separation parenting, or that plans reduce the incidence of disputes, including legal conflict over access. It appears that, for low conflict couples, parenting plans can be useful in helping them reach a child-focussed agreement, but will not help, and may even cause harm, in cases when parents are in high conflict.
Mandatory and voluntary parenting programs have mushroomed in North America. Models vary widely, but most programs aim to improve the ability of parents to understand their children's needs and to focus on their children's interests in their post-divorce parenting. Programs will often teach parents about court rules and processes concerning divorce and separation. Some are designed to be prerequisites for other programs, such as mediation.
Studies show that divorcing and separating parents are often unaware of how poorly their children are coping, and often underestimate or ignore the effects on children of their fighting, their questioning of a child about the other spouse's activities and their demands for first loyalty (Arbuthnot & Gordon, 1997; Arbuthnot et al., 1996).
Parenting education programs that rely on divorce guides, videos, etc., appear fairly successful in making parents more responsive to their children and more positive towards increasing the other parent's involvement with the children (Arbuthnot & Gordon, 1997). However, these tend to reach only a minority of parents and those most disposed to optimizing their post-parenting behaviour.
Most parents graduating from parental education programs say they are glad they attended and that they feel more aware of their children's point of view and are better able to help them (Arbuthnot et al., 1996). However, the few follow-up studies that exist suggest that this does not change their actual behaviour (Arbuthnot et al., 1996). Lectures and other programs that evoke sympathy for the children but do not teach new parenting behaviours have the least effect on parents' learning or their later practices (Arbuthnot et al., 1996; Arbuthnot & Gordon, 1997). A program's length does not seem crucial.
Since most parenting education programs are voluntary, they reach relatively few parents, mainly those most receptive and keen to optimizing their parenting. What is the effect when programs are mandatory?
In 1998, British Columbia introduced three-hour mandatory parenting programs in the Vancouver suburbs of Burnaby and New Westminster. The programs, required for all parents bringing access, custody, support and guardianship applications to Provincial Court, taught parents about the impacts of divorce on children and how to help them, and about court options and processes. These pilot mandatory programs were instituted because the voluntary programs introduced in 1994 had been little used, possibly because parents did not know about them.
Evaluators found that two thirds of the people attending the workshops were required to be there. About half were initially resistant (
"I shouldn't have to go") and the most resistant were parents who had been divorced or separated in the distant past and did not see the need for such a program. By the end of the seminar, two thirds of those who responded to surveys felt no resentment about attending, and 83 percent agreed that divorcing parents and guardians should have to attend a mandatory Parenting After Separation workshop.
About 95 percent of survey respondents found the workshop interesting, and 85 percent said they would recommend it to others. Most people found the information was new to them. There were some complaints that the seminars were not racially or culturally sensitive enough (e.g., because men and women attended them together, or because they didn't provide sufficiently for language diversity) or sensitive enough to violence in relationships. One respondent applying for a restraining order was worried about having to go "through an extra hoop" before getting to court.
No follow-up has yet been done on how much parents retain of what they learn in the program, on how the information affects their behaviour towards their children and spouses, or whether the program actually reduces access disputes and litigation.
Long-term Effects of Parenting Education
One U.S. study pursued some of the above issues. Evaluation of Maryland's mandatory Making it Work program (Gray et al., 1997), a program delivered outside the court system, also found that most parents were initially hostile about being forced to attend the course, but that this dissipated quickly (the parents interviewed, and the parents in the control group, were drawn from a pool of parents who had litigated custody arrangements; it is not known how far their cases had proceeded before they entered the program). In a mail-out questionnaire six months later, these parents reported more positive behaviours than did parents who had not gone through the course. These parents reported they were able to keep their children out of conflicts, and had fewer struggles over custody, visitation and co-parenting in general. The number of meetings with mediators and attorneys also decreased.
One of the problems in assessing these results, however, is that studies show that parents substantially underreport instances of children caught in the middle of parental conflicts (Arbuthnot & Gordon, 1997). Furthermore, graduates of a parenting education course may be the most likely to underreport such behaviour since they have been told it is wrong.
Another U.S. study evaluating the mandatory Children in the Middle program in Ohio (Arbuthnot & Gordon, 1997) did not rely on self-reporting measures (the participants had filed for divorce or separation). This program focusses on teaching parents not to "catch" the children in the middle of their conflicts. Telephone contacts six months after the program found that the parents had not forgotten the skills they had been taught (e.g. knowing what to say or do in particular situations). They also rated their awareness of their children's views and needs lower than did a control group of similar parents (which evaluators took to be a sign of greater awareness), and were more willing for their child to spend more time with their ex-spouse. However, their conversations with their ex-spouses were just as likely to end in argument, and there were no differences in how often they encouraged their child to spend time with their ex-spouse. The results did not vary by gender or by their attitudes toward the mandatory nature of the court. In short, the parents' attitudes towards their children and relationships with ex-spouses changed, but not much of their behaviour did.
With regard to litigation, parenting education programs have been shown to reduce it in some cases. A two-year follow-up study of 94 Lexington, Kentucky parents ordered by the court to pursue parenting education found that these parents did not re-litigate significantly less often than similar parents who had not passed through the course (50 percent compared to 60 percent of the similar parents). On the other hand, only 13 percent of the parents who enrolled in the course straightaway came back to court, though arguably these were probably the most cooperative, child-oriented parents (Arbuthnot et al., 1996).
Another study in Ohio by the same researchers found that parents who went through mandatory parenting education averaged 1.6 filings, while similar parents who had divorced or separated the year before the program was introduced litigated an average 3.7 times. However, the longer the delay between filing for divorce and attending the program, the more likely parents were to re-litigate over access (Arbuthnot et al., 1996). Parents' education levels did not affect their tendency to re-litigate in either study.
In summary, parenting education programs do seem to have some long-term effect on parental attitudes and understanding and, perhaps because of that, on their willingness to litigate disputes. But there is little evidence as to whether they directly affect parents' behaviours. Only a narrow range of behaviours has been tested.
Most family courts across jurisdictions offer programs aimed at resolving the disputes that have come to the court before they reach a final court judgement. Alternative dispute resolution mechanisms, usually counselling, mediation and/or arbitration, are typically available to parents in all kinds of access disputes: disputes in setting up access agreements, disputes in revising the agreements (varying the orders), and disputes about enforcement of the agreements. These programs, therefore, function both to prevent access enforcement disputes (to the extent that they help parents achieve durable access agreements that both parents can live with) and as alternative methods of resolving access enforcement disputes.
Unfortunately, most research on these programs lumps all kinds of access and custody disputes together. It is difficult to ascertain whether alternative dispute resolution programs are more, less or equally effective in resolving access enforcement disputes as other kinds of access disputes. Most of the outcomes cited below are for all types of access disputes, including custody disputes.
Conciliation counselling is used as a primary strategy in many jurisdictions to resolve cases before they proceed too far along in the litigation process. Counselling models vary widely, and some may overlap with models of mediation, but generally speaking they tend to be "open-ended" services that provide information about legal options and alternatives to litigation, help couples make their own decisions, and give clients the opportunity to resolve differences (ALRC, 1997). Unlike mediation, they do not focus primarily on reaching agreement (Nicholson, 1994).
Australia's Family Court relies heavily on counselling to resolve access disputes before they reach a final court hearing. As indicated in Section 2.1, an estimated 75 percent of the family law disputes entering the Court are resolved through counselling, and this rate may be as high for breach of access disputes as well (15 percent of which reach final judgement).
As outlined in Section 2.1, surveys of conciliation counselling cases lead to high rates of agreement for most participants, with somewhat lower rates for couples ordered into counselling and for cases involving allegations of child abuse or domestic violence. Periodic court surveys have also shown high levels of satisfaction with the service (Gibson et al., 1996). Counselling is less successful when it begins after an application is filed (60 percent success rate), suggesting that conciliation that begins before litigation is more likely to be successful.
One New Zealand study, for example, found a 69-percent success rate for disputes over custody, access and domestic violence when counselling had begun before applications were filed, but only a 39-percent success rate in cases when counselling began after filing (Brown, 1997c).
Periodic court surveys have also shown high levels of satisfaction with the service (Gibson et al., 1996). There is some evidence, however, that such agreements may not last. In the Court's 1996 satisfaction survey, for example, only 29 percent of the clients agreed that after counselling they could resolve any future disputes with their ex-spouse without outside help (ALRC, 1997).
There is also evidence that counselling does not work for difficult cases, as seen in Section 2.1. In the Family Law Council study, counselling seemed to make no difference for access enforcement cases that had reached final hearing (Family Law Council, 1998a). Moreover, the "complex cases" identified at the Paramatta court registry by the Australian Law Reform Commission's study indicated these cases used large amounts of the registry's counselling resources, to no effect (ALRC 1995). Nonetheless, the Family Law Council report concluded that counselling might be some help in cases that reach final hearing by clarifying issues.
The Principal Director of the Australian Court Counselling System suggests that complex cases need a range of different strategies, depending on the case (Brown, 1997c). These include clinical case management plans involving more than one counsellor or mediator and perhaps the involvement of extended family members (see section on impasse mediation, below). The early detection and diversion of potentially complex cases is also essential to prevent them from becoming entrenched in litigation. On the other hand, custody evaluations, if they are ordered early in the proceedings, can intensity conflict by focussing the parties on the dispute rather than on its resolution.
One of the problems for jurisdictions offering more than one resolution support program is deciding where different kinds of clients should be referred to, or, in jurisdictions like Australia where all services are voluntary, providing the right mechanism for clients to make the best choices.
The Australian Family Court piloted an Integrated Client Services (ICS) scheme in Paramatta during the mid-1990s, and the government has plans to implement it across the country. An evaluation was under way in 1999. The scheme provides a one-stop intake desk for clients and a multi-disciplinary team of service providers to assess clients' dispute resolution needs and direct them to appropriate internal and external alternative services (ALRC, 1997).
Conciliation counsellors in Australia screen for cases involving domestic violence or abuse, and, like mediators, receive special training in identifying and dealing with these cases (ALRC, 1995). Court guidelines provide for the possibility of separate counselling when there is fear of violence. However, prior to 1995 at least, counsellors were frequently forcing women into joint counselling despite their objections, according to submissions to a study by the Australian Law Reform Commission (ALRC, 1994).
Mediation programs differ from counselling programs mainly in their focus on reaching agreement (although some voluntary mediation programs resemble some counselling programs). Programs vary widely; for example, they may be voluntary or mandatory (court-ordered), the outcomes may be confidential or made public, the mediators may be lawyers or non-lawyers, and the programs may screen for violence and abuse cases or not and treat these separately or not. These and other factors are believed to significantly affect the likelihood that mediation will bring about reasonable cooperative agreements that work and last.
Canadian courts are turning increasingly to mediation to resolve access disputes, and mediation is widespread in the U.S., where an estimated 205 court mediation programs are operating. Just over one third of these are strictly mandatory, another third deal with both mandatory and voluntary cases, and the rest serve voluntary clients only (Thoennes et al., 1995).
Most research shows reasonably high agreement rates for both mandatory and voluntary mediation. An evaluation of a pilot voluntary mediation program in Melbourne, Australia, in 1992-93 found that about three quarters of the clients who completed the program reached a full settlement though mediation (Nicholson, 1994). About 18 percent of clients dropped out before finishing the program. Most of the cases had more than one issue to resolve; 13 percent had only child-related issues. Many of these cases were high conflict and involved serious issues, including unresolved separation, past violent or threatening behaviour, or past significant drug or alcohol problems. Still, the study found that, as with conciliation counselling, the agreements rates were lower when couples had already launched court applications (ALRC, 1997).
Another comprehensive "snapshot" study of California's state-wide mandatory mediation program found that 55 percent of the families reached agreement during the two weeks of the study period in 1991, and more than one quarter of the remainder were scheduled for further mediation (Depner et al., 1995). About 20 percent of these mediation cases involved one parent's inability to abide by the parenting agreement (Depner et al., 1992), although most cases also involved several issues. Four fifths of the mediation sessions involved fairly difficult issues, including, besides high conflict, high frequencies of child and spousal violence and substance abuse.
Since there is no control group of similar parents against which to test the results of the 20-year-old mandatory California program, it is difficult to say how many of these agreements would have been reached without mediation. The agreement rates in the Australian mediation programs compare well to those reached in conciliation counselling, but the voluntary mediation programs seem to self-select a different clientele. Consider, for example, that an estimated 85 to 90 percent of divorce disputes that go into Louisiana's voluntary mediation system end in agreement (Pappas, 1993). In any case, it is not clear how effective mediation is in securing durable agreements in cases that would otherwise have ended up in final court hearings.
Participants in mediation tend to rate it highly. Clients in the Melbourne project, for example, expressed high satisfaction rates of 80 to 97 percent regarding their mediators' skills, their empathy and the fairness of the agreement, among other things. A Legal Aid and Family Services study found similar levels of satisfaction among clients in the Sydney system (Brown, 1997b).
Just over three quarters of the 1,400 or so families participating in the California study (Depner et al., 1995) were satisfied with the results of their mediation (success or failure), and 90 percent agreed it was a good way to develop a parenting plan (Depner et al., 1992). More than 80 percent thought what they had agreed on would be good for their children, about the same proportion felt their agreement was fair, and almost 70 percent felt it would work (Depner et al., 1992).
A recent study by the U.S. National Center for State Courts compared mediation to more traditional custody evaluation services and found that parents thought the mediation was fairer, involved less pressure for them to make unwanted agreements, produced more satisfying agreements and gave parties more control over decisions, than the traditional adversarial court process (Thoennes et al., 1995).
These recent studies appear to confirm earlier studies which showed that mediation empowered parties, gave them the opportunity to air grievances seldom addressed in litigation, helped them focus on their children's needs, and developed agreements that were more satisfying to the parties and fair and acceptable over time (Newmark et al., 1995). These largely U.S. studies typically compared mediation to court litigation or in-depth family evaluations, so how much couples might prefer it to, say, conciliation counselling or a low-cost magistrates court, is not known. It is also not known whether these couples would likely have reached workable, durable agreements without mediation.
It is not known how many couples who reach agreement through mediation end up back in court. In the California-wide study, it is not even known how many parents abided by their agreements. A smaller study of mediation in one California county in 1988-89 found that while agreement rates regarding custody and parenting orders were high (three quarters of families reaching full or partial agreement), respondents were ambiguous about their agreements. Parents' satisfaction with the agreement (as distinct from the mediation process) and their feelings about whether the agreements "were in everyone's best interests" were uncertain. Respondents expressed distrust of their spouse's willingness to live up to the agreement (Duryee, 1992). The durability of many of the agreements seems questionable.
However, a follow-up with participants in the Melbourne program six months later found that 86 percent were still abiding by their agreements (Nicholson, 1994). There were significant differences in the kinds of families who participated in the Melbourne and California programs, and these differences may be relevant to the durability of the Melbourne agreements. The voluntary Melbourne participants tended to have better than average education and income, and turned to mediation at least partly to avoid high litigation costs (Nicholson, 1994). Parents in the California mediation program, on the other hand, tended to have below average education and income, and were more similar socio-economically to the families in the conciliation counselling provided in all Australian courts (Depner et al., 1992). The primary alternative to mandatory mediation in California is also an expensive court battle, with little legal aid available.
Co-Mediation and Mediation Internship in Manitoba
Launched in early 1999, this Manitoba pilot project offers comprehensive co-mediation services (for custody and access, support and property issues) to separating and divorced parents, and a training program for family lawyers and family mediation specialists (MacKenzie, 1999). The mediation services consist of five to eight 1.5-hour sessions, led jointly by lawyers and family specialists. Some 150 participants were voluntarily referred to the program between April and November, 1999, mostly from existing family conciliation services, the province's parenting program and lawyers. However, one third of these referrals did not follow up. A handful were referred from the court. Cases involving violence, abuse or an evident imbalance in negotiating power were screened out, but at intake three couples reported restraining orders. The evaluator found no evidence that the program had engaged unsuitable participants, or that any participants were reluctant.
Nearly all the parents were separated (one divorced), most for less than six months. Most had not yet resolved custody arrangements, most of the children lived with their mothers, and on average children spent five days a month with their access father/parent. The participants tended to be more educated than those in the province's mandatory parenting education program, and most had high incomes (although 90 percent had seen their incomes fall since separation). The parents were likely to have child and spousal support problems, though access was also a problem for nearly half of those who had engaged lawyers.
Most of the participants also reported high conflict with their spouse currently and during the marriage, although "high-conflict" was self-defined. Between 40 and 60 percent believed their communication with their spouse was poor, that their spouse was neither fair-minded nor flexible and was taking advantage of them, and that they could not focus on problems with the former spouse without dredging up the past. However, only 30 percent felt harassed by their former partner. Problems during pick-up and drop-off of the children were reported to happen "rarely" or "sometimes". Most respondents thought their children were "rarely" caught in the middle of their conflict, and most thought they had adjusted well or adequately to the separation. Participants generally believed they were more supportive and flexible in access arrangements than their partners believed.
By November 1999, 20 of the 30 completed cases had reached full agreement and another five had reached partial agreement. About 23 percent of the 100 or so cases in the program were pending, and 19 were on the waiting list. A few other participants reconciled or reached agreement before mediation.
Interim results support the prevalent view in the research literature that mediation works for families with significant but not entrenched or extreme conflicts, especially if they begin mediation before post-separation animosities harden. A key question is how many of these couples would have reached agreements anyway, without ending up in the court system. In the absence of an answer to that question, these study results are inconclusive.
Criticism of Mediation
Standard mediation programs are frequently criticized for failing to ensure that agreements are genuine and fairly reached. Critics argue that mediation programs lacking specific safeguards against unequal bargaining run the risk that such inequalities will taint mediation agreements. They say this is because mediation is governed by fewer rules and procedures, the parties typically deal with each other directly, and the training and skills of mediators vary.
Critics also argue that battered women are particularly vulnerable to unequal mediation bargaining, since they usually have to face and negotiate with their batterers. This is not a minor issue. Domestic violence was an issue in nearly two thirds of the families in the California study, and in 20 percent of these families it was the only problem raised (not all involved current violence, however). In the remaining two thirds, domestic violence was typically one of a cluster of issues that might include substance abuse (one third of all families), child neglect (one third of all families) or violence against the child (18 percent of all families) (Depner et al., 1995). At least 16 states in the U.S. have responded to these concerns by enacting legislation to exempt battered women from mediation (Thoennes et al., 1995). One Alaska pilot project, after screening out abused and formerly abused women from mediation, found it had eliminated 60 percent of its prospective users (Thoennes et al., 1995).
A study of U.S. mediation programs (voluntary and mandatory) found that 20 percent of the overwhelmingly court-provided programs do not screen for domestic violence. Moreover, only one half of the programs screen each parent directly and privately for domestic violence, while the other 30 percent or so either do background checks or question both parties together about domestic violence (Thoennes et al., 1995). Mandatory mediation programs did not differ significantly from voluntary programs.
There also appears to be wide variation in mediators' training. Mediators receive some sort of training related to domestic violence in 70 percent of programs. Mediators without training are more likely to carry on as usual if domestic violence is raised during mediation than those with training. In all, six percent of programs always mediate as usual in cases involving domestic violence, while 23 percent never mediate as usual. Only two percent always use separate private sessions in such cases.
The study also found that most programs eliminate less than five percent of their cases due to spousal abuse allegations, and about 85 percent eliminate less than 15 percent of cases. Strictly voluntary programs eliminate the fewest cases, suggesting that cases involving violence, for one reason or another, are opted out of mediation. Elimination rates are highest when legislation or a court ruling specifically allows exclusions and specifies the criteria to be used (Thoennes et al., 1995). Some programs do not permit domestic violence cases to opt out of mediation.
Overall, though, significant numbers of parties with domestic violence issues remain in mediation, even when they are permitted to opt out. Many of the women excluded from the Alaska project opposed the exclusion policy because they thought the prospective gains from the project outweighed the risks (Thoennes et al., 1995). Other women in domestic violence cases are upset at being required to mediate (Newmark et al., 1995).
The authors of the nationwide U.S. survey speculated that women may not opt out because they feel pressured into staying by their bullying spouse, because they freely decide the benefits outweigh the risks, or because they believe it is still better than the expensive, perhaps no less unequal, alternatives (Thoennes et al., 1995).
One recent Nova Scotia study focussed on 34 women who had participated in private or court-provided mediation or conciliation at the break-up of relationships involving domestic violence. Most of the women said they felt coerced into mediation by their ex-spouses or the judicial system, and once in mediation, felt that the mediators rode roughshod over them, ignored the issues of domestic violence, or allowed their ex-spouses to bully them during mediation. Only two of the 34 women recommended mediation-because it had helped teach their ex-partners about basic parenting responsibilities, or led to a satisfactory agreement (Transition House Association of Nova Scotia, 2000).
In contrast, an Australian study found that 84 percent of the Australian women who participated in voluntary counselling, and whose relationships involved domestic violence, were satisfied with the counselling they received (Davies et al., 1995). It is possible the two studies reflect differences in the kind of processes being offered, since Australian conciliation counselling is less focussed on achieving agreement than are standard mediation programs.
The Nova Scotia study's findings that mediators may undermine mediation by coercing or bullying clients are supported by an English study of preliminary hearings at which couples are diverted into mediation under the U.K. family law procedures. Observing the hearings, the researcher found that some hearing officers virtually coerced parents into mediation by maintaining that there was no alternative (there is) or strenuously attempted to get the parties into agreement on the spot. In one case, the father, who had tried to strangle the mother the previous spring, was permitted to harangue the mother and make repeated motions to her during the proceeding, drawing his index finger across his throat (Pappas, 1993). The researcher found that half of the "agreements" reported over the 12-week period of the study were arguably inappropriately labelled (Pappas, 1993).
When mediation is conducted in the shadow of a strict legal penalty that leaves one party little leverage, it seems plausible that at least some of the mediation will really be pressure for the recalcitrant party to conform (whether or not he or she has good reasons for resistance). In the latter contexts, mediation functions as enforcement of compliance rather than as disagreement resolution.
The impasse model of mediation was developed in the United States to be used for difficult and complex post-separation disputes, when couples seem unable to move on from their divorce. The mediation consists of an intensive 10-week series of sessions that combine therapy and counselling, and includes the whole family. In evaluating the model, its creators found that almost 83 percent of couples initially reached agreement and that after six months 70 percent had kept them. After two to three years, 44 percent of families had kept the agreements, and 16 percent had renegotiated their own agreements using the original plan as a template. Thirty-six percent had returned to court, half to a mediator and half to a judge after further mandatory mediation had failed. Of this group, 23 percent returned more than once (including those who could not be helped by impasse mediation). There was also a marked decline in hostility and conflict among the couples who were helped by the mediation. The children's adjustment measures, however, did not improve (ALRC, 1995).
Australia's Family Court piloted a small impasse mediation project in Brisbane involving 13 parents and six children. Four couples and five singles were involved. One couple produced a written agreement to resolve their conflict, three who attended alone fully resolved their issues and either withdrew from or decided not to initiate legal action, four others achieved partial resolution, and two couples continued litigation (ALRC, 1995).
Following the pilot, the principal director of the Family Court's counselling service submitted that the impasse model is the best approach for difficult contact (access) cases (ALRC, 1995). It is also less costly than hearings, although more expensive than regular mediation. However, critics of impasse mediation argue that it cannot help in cases when the problem is an individual with a personality dysfunction, or in cases when getting the whole family together is unfeasible (ALRC, 1995). They also say it sidelines issues of violence which ought to be addressed.
While the Australian Law Reform Commission does not reject impasse mediation, it questions how often it prevents cases from proceeding through court that would otherwise have reached final hearing, and asks whether having an arbitrator or Court registrar on hand to provide legal advice and help decision-making would be more effective (ALRC, 1995).
Ontario's Intensive Short-term Intervention
In Ontario, the provincial Office of the Children's Lawyer and the Clarke Institute of Psychiatry have developed a short intensive intervention specifically for parents involved in access denial or breach of access disputes (Birnbaum & Radovanovic, 1999). Cases involving violence or abuse are excluded from the program. The 10-hour intervention is a substitute for the typically 22-hour comprehensive assessments sometimes ordered for difficult cases. Whenever possible, the parents are seen together or with the child early in the intervention, followed by parent-child interviews.
A follow-up evaluation of 40 parents found that about 45 percent of them were continuing to have access disputes. Thirty percent of the parents reported poor to very poor parent cooperation continuing after the brief intervention, and 55 percent of all respondents said that the intervention had not helped improve communication among the parents. However, 35 percent of the parents said their existing visitation arrangements had been made with the assistance of the clinicians, and 63 percent said the evaluators' suggestions were incorporated during court motions covering their disputes shortly after the intervention. These settlement rates seem higher than what is usually achieved with traditional assessments (Birnbaum & Radovanovic, 1999).
Special Masters in Mediation and Arbitration
Special Masters exist in some California courts to resolve cases in which mediation has failed and to prevent them from reaching final court hearing. The Special Master must be a mental health professional, mediator or family law attorney. He or she may make binding decisions about access disputes as well as parental decision-making responsibility when this is disputed, but cannot vary the basic access or custody orders.
In considering the use of Special Masters to effectively arbitrate complex cases that are well along in the litigation process, the Australian Law Reform Commission suggests they could be appointed in connection with an impasse mediation program to decide
"minor, but nonetheless destabilizing, issues" (ALRC, 1995).
Some jurisdictions have established access enforcement assistance and compliance programs that are aimed at enforcing access awards when there have been breaches or when breaches are likely, or making access possible in circumstances in which it would otherwise have to be denied by the courts. Like the California Special Masters and impasse mediation programs, these programs typically deal with complex cases that counselling or mediation has failed to resolve, and which tend to be more litigious.
Mediation and Arbitration: Arizona's Expedited Visitation Services
The Expedited Visitation Service in Maricopa County in Arizona enforces access when access orders have been violated. Conference officers (Special Masters) meet with the parties within seven days after a parent (usually the access parent) files an application claiming a violation, or after the court refers the dispute to the program. The conference officer seeks to mediate the dispute and at the end of the conference makes public recommendations to the court, which may include any agreements reached by the parties. The existing court order may be upheld, it may be modified or made more specific, or the conference officer may recommend other services, such as supervised access or supervised exchanges (Pearson & Anhalt, 1994; Lee et al., 1995).
Since the only permissible reason for denying access in Arizona is the threat of harm to a child, the result of the conference is usually access of some kind. The ordered access is monitored for compliance for six months via monthly telephone calls or mail monitoring. Parents or the monitor can request further conference with the Special Master during the six months, and if no progress is made towards compliance, the Special Master can request a hearing before a judge (Lee et al., 1995).
An evaluation of the program found that about 55 percent of the participants in the program had their access visits monitored by telephone or mail, some 17 percent in combination with supervised exchanges and 13 percent in combination with supervised access (Pearson & Anhalt, 1994). Another quarter of the cases were referred to other services. The most common outcome of the conferencing was specification of the visitation orders, most of which had authorized "reasonable access" (Pearson & Anhalt, 1994). Punitive penalties were rare, as were court-ordered custody changes.
The study found that nearly two thirds of the cases in the program had prior litigation, averaging almost two litigations per case, and one third involved a child support litigation shortly before the denial of access application (Pearson & Anhalt, 1994). Close to 60 percent of access parents were in child support arrears. The access parents' main complaints were that access was denied and make-up access for legitimate misses was not allowed. The custodial parents' main complaint was that access parents failed to exercise access by not showing up or by cancelling without notice (Pearson & Anhalt, 1994). About 40 percent of the cases involved allegations of substance abuse, spousal violence or child abuse, although these do not appear to have prompted any special treatment. The overwhelming majority of custodial parents were mothers. Access fathers rarely had access for more than one third of the child's time.
According to the study, the frequency of visitation did not tend to increase as a result of the program. Some parents saw their children more often than they had previously, but half the parents who visited their children regularly saw them less after participating in the program. Most of the latter parents were in child support arrears (Pearson & Anhalt, 1994). Re-litigation rates with regard to access did appear to decline, although litigation about child support did not. However, about half the mothers and fathers continued to have visitation problems after the program ended, and one third reported no resolution of any kind. Access fathers who cited ongoing problems were mostly unhappy with the amount of access they had, and custodial mothers who cited ongoing problems were mostly unhappy with child support payments, the frequency of the father's exercise of access, and the initial amounts of access granted the father.
When the parents did manage to resolve their dispute-which appears to have been in about one quarter of the cases-access was more frequent and child support tended to be paid (Pearson & Anhalt, 1994).
At least half the mothers and fathers in the program seem to have been moderately satisfied with their program experience. Most, though, doubted it would have any long-term impact on child support payments, the ability to exercise visitation or the behaviour of the other parent. Most mothers reported little change in delinquent child support payments, while most delinquent fathers reported having caught up.
Given the program's modest success in resolving parents' disputes, it is not clear why re-litigation rates declined as they did. It is not known how long the parents were interviewed after the program's end.
A second follow-up study of 70 children whose parents participated in the program found that the children's self-esteem, their overall adjustment and their school behaviour were not affected by compliance with the access order. However, these measures did improve with more frequent visitation (although the child's perception of inter-parental conflict also rose with higher frequency of visitation) (Lee et al., 1995). As indicated above, visitation frequency generally increased when couples were able to resolve their dispute.
Manitoba's Access Assistance Program
An access assistance project, jointly funded for three years by the federal government and the provincial government, and solely funded by Manitoba for an additional year, was piloted in the province from 1989 to 1993. The program aimed to facilitate the exercise of access, when appropriate, in cases in which access was denied or not exercised and other measures to resolve the problem, such as mediation, had failed (Prairie Research Associates, 1993). The project combined long-term therapeutic and legal measures: assessments, recommendations and counselling, combined with legal information, ongoing legal advice from the parties' lawyer, and ultimately, contempt of court proceedings if the program felt access should be occurring as set out in the court order and the non-compliant parent was unwilling to participate. Unlike the U.S. programs described above, decisions were based on the child's best interests rather than on securing parental rights of access in all cases when the child was not in direct danger.
Referrals into the program could come from the parents, lawyers, the court or other social service agencies. Some 169 families were introduced to the program, but only 99 used its services. Half of the families reported a history of violence and more than a third reported alcohol abuse. Parents were generally extremely hostile to each other. A pre-service meeting was held to provide the parents and their counsel with an orientation to the program's procedures, goals and objective, so that they could decide whether they wished to participate. In addition, interviews were held directly with children only when appropriate. The assessment aimed to identify the child's best interests and needs in relation to the parents' dispute.
A therapeutic team developed recommendations on the basis of the assessment, which included a variety of services, such as in-house counselling, child counselling, supervised or monitored access provided by volunteers, and referrals to community agencies and social services. Only one in five cases used supervised access. If the access problem remained unresolved, the case could go back to a settlement meeting, be terminated, or proceed to the program lawyer and eventually to a contempt of court hearing.
A project evaluation found one third of the cases improved by the end of the program, an additional 10 percent were following the court order, and another third remained unresolved. About 10 percent were referred back to the client's lawyer for a variation. It is not known how many of the couples re-litigated after leaving the program, nor was the impact of the program on child outcomes measured satisfactorily (Prairie Research Associates, 1993). The average cost of the program was $3,484 per client, but it was estimated that 20 families consumed most of the program resources.
Supervised access is gaining widespread popularity as a strategy to enforce access in the most difficult cases, especially in cases involving risk of abuse or violence, psychiatric illness or substance abuse.  These are often cases in which denying access may be the only safe alternative. Short-term supervised access is also frequently used by access parents who are re-establishing contact with their child after a long lapse.
Supervised access aims to provide a safe, neutral drop-off and pick-up point for exchanging the child during access visits, and a place where access parents can spend time with their children under third-party supervision. In many Canadian provinces, it remains an informal service provided by volunteers or community agencies, and is not widely available. Access centres are replacing the relatively unsatisfactory "police station exchanges" and supervision by relatives that used to be the only means of access supervision. Most Canadian provinces seem enthusiastic about expanding existing supervised access centres, although proposed service models vary. The Australia and New Zealand Association of Children's Contact Services (ANZACCS) identifies three major centre models (Strategic Partners, 1998):
Low vigilance supervision, where the risk factors are minimal and the aim is to promote healthy relationships and improve the ability to manage independent access.
Vigilant supervision when conflict is high between parents, parenting is poor, and the risk of violence is low. The orientation is towards providing conflict-free drop-off and pick-up points where the parents need never see each other.
Highly vigilant supervision is a resource intensive service wherein access parent-child interactions are closely monitored and maintaining safety is the priority.
There is also wide variation in how often supervised access is embedded in a network of counselling, mediation or parenting services, and wide variety in staff training and supervision, among other things. These factors appear to make a difference to the quality of service, and the likelihood of parents graduating from supervised access to workable unsupervised arrangements.
Comprehensive evaluations of at least two major supervised access pilot projects were found. They are described below.
Ontario's Supervised Access Pilot Project
Ontario implemented supervised access in a 14-site pilot project between 1992 and 1994. The sites, scattered among major cities and rural areas, varied widely in the number of visits they supervised, but by the end of the pilot some centres were at capacity and had waiting lists (Park et al., 1997).
Some 60 percent of the parents surveyed had had ongoing access before, more than half of them relying on unsupervised access and slightly more than one quarter on friends or relatives. These arrangements had usually ended because the custodial parents denied access (reported most often by the non-custodial parents) or the parent feared for their safety and/or the children's (both reported mostly by the custodial parents). About 43 percent of custodial parents said they feared child abuse (17 percent of non-custodial parents), while high conflict and the reintroduction of parent and child were also common reasons (Jenkins et al., 1997). Judges and lawyers who were interviewed considered the program a "necessary and essential" service. They thought court orders for supervised access had risen simply because the service was available, and that without it these cases would have gone straight to trial or no access would have been ordered (Peterson-Badali et al., 1997). Most of the parents were referred to the service by the courts.
The evaluators found that supervised access was for a short term, mostly when a child was being reintroduced to a long absent parent. Parents most likely to use the service for a longer period had unmanageable psychiatric disabilities, suffered substance abuse, or feared their child's abduction (Park et al., 1997). The average time in supervised access was 7.7 months.
The parents were overwhelmingly satisfied with the supervised access (90 percent of custodial parents and 70 percent of non-custodial parents). Custodial parents were also overwhelmingly satisfied with the restriction of having the visit on site, but 44 percent of access parents were dissatisfied with this. Access parents were also much more unhappy with the legal system in general (almost two thirds) and with their lawyers (22 percent) (Jenkins et al., 1997). Virtually all of the judges and lawyers interviewed were positive about the pilot project.
Relatively few of the parents interviewed moved beyond the supervised access during the period; only 13 of 121 moved on to unsupervised access, and nine moved from supervised access to no access arrangement. There was no evidence, though, that supervised access reduced hostility between the ex-spouses or improved other aspects of their relationships, which in general remained very hostile. Seventy percent said their ex-spouse would lose his or her temper if forced to discuss an issue about their child. However, there were few critical incidents (1.6 for every 1,000 visits). The judges and lawyers interviewed perceived less hostility among the couples, perhaps because they no longer fought so much in the courtroom (Peterson-Badali et al.,1997).
The continued hostility between the parents raises questions about the role of supervised access as a stage to more flexible, cooperative access arrangements. One expert has asked whether long-term supervised access is really in the child's best interests (Bailey, 1998) in that it implies persistent parenting failure by one or both parents. However, the Ontario pilot project did not offer therapy, counselling or parenting training, services that experts say should be integrated with supervised access to foster attitudinal change and growth among the parents.
The evaluators found that most children were also happy in supervised access, although only a quarter understood why they were there and what it meant. Experts have raised concerns that unless abused children clearly understand what is going on, they may think that the supervised access with their abuser condones the abuse (Johnston & Strauss, 1999). However, a small minority did not feel insulated from their parents' hostility by the supervised access arrangements. The researchers suggest that supervised access might harm these children's interests by prolonging their exposure to high-risk events (Peterson-Badali et al., 1997).
Assessing the impact of supervised access on children is even more difficult because these children are 8 to 14 times more likely to have emotional and behavioural problems than other children (Abromovitch et al., 1994, Johnston & Strauss, 1999). Yet traumatized children do not necessarily appear overtly troubled, at least at this point in their lives (Johnston & Strauss, 1999). They often appear quite lively and full of laughter. However, their need to defend against a confused and frightening reality makes them seek predictability and control (Johnston & Strauss, 1999). Whether supervised access meets these deep needs is not clear. Unfortunately, no longitudinal studies of children using supervised access for long periods were found, presumably because formal services are relatively new.
Most of the judges and lawyers interviewed thought supervised access produced great court savings, by reducing court time and expense. The evaluators found that costs of providing the service varied greatly, but averaged $71,500 a year per small centre, or a $109 median per visit (1993 dollars). Based on the pilot projects' levels of service, the evaluators estimated that about 9,782 Ontario families could benefit from using supervised access (Park et al., 1997).
Ontario is currently finalizing plans to expand the existing network of centres. The average length of service in these networks, in operation for nearly a decade now, is still six to eight months, but some parents (especially those with mental health or addiction problems) have used the service for up to nine years.
Australia's Supervised Contact Pilot Project
The Australian federal government initiated a ten-site pilot project in 1996 as a possible prelude to introducing a widely available service. The pilots were considered timely since, as a result of family law reforms, virtually all fathers were being awarded contact or access in interim parenting orders (custody/access orders), including violent and abusive fathers who would eventually be denied access in the final orders. Many pilots provided counselling and other services as well as supervised access, and aimed to wean parents off supervised access, to workable unsupervised arrangements when possible, although these expectations were not explicitly set for clients.
The service was shown to be meeting a clear need. The two-year span of the project evaluation saw a marked increase in the number of parents wanting the service and in the complexity of the cases, which involved substance abuse, psychiatric illness disabilities and ethno-cultural diversity. The numbers of change-overs (dropping off and picking up children) jumped 230 percent, and the number of on-site access visits rose 60 percent. The number of children served doubled. Some of the pilot services had waiting lists by the end of the evaluation. The evaluators also surveyed eight unsponsored centres and found some of them overwhelmed by demand (Strategic Partners, 1998).
About 60 percent of the clients were residential (custodial) mothers, and about 60 percent of the clients received social security (social assistance). Some 27 percent of access parents were unemployed (or on assistance). Most parents had been separated for two years or more. Access had been inconsistent and infrequent among recently separated couples, and 30 percent of the access parents had not seen their child for at least a year. Most of the children were under age 10. Nearly a quarter of the clients had at least one family member born in a non-English-speaking country. About 60 percent of the residential /custodial mothers using the service reported high to extreme levels of conflict and violence, and several cases involved alleged and actual child sexual abuse. The staff also noted high levels of emotional abuse during visits, which challenged their commitment to providing a neutral as well as safe space. Some services explicitly targeted cases involving alleged violence and abuse, but to some parents this stigmatized the service and some men decided against using the service for this reason.
Referrals came mostly from lawyers (40 percent), judges (22 percent) and community legal centres (10 percent). Nearly 20 percent were referred from community and social services agencies. The court-referred cases were "higher vigilance" cases, and centres could refuse such a case if they felt they could not handle it. Most services conducted intake assessments, and lost one third to one half of their potential cases as a result. Half of the centres eventually began charging fees, ranging from $2.50 to $30 per hour, but they reported this did not affect service use. The actual cost of the service ranged from $46 to $91 per hour.
The responses of outsiders to the programs were very positive, especially the police, lawyers and judges. Judges felt the contact services reduced litigation and were contributing to the parents' ability to reach workable contact and child exchange arrangements. Interestingly, the projects also won over those men's groups and women's advocacy and service groups that had initially opposed the centres (the men because they thought fathers were unjustly accused, and the women because they feared that fathers could abduct the child or that violent incidents might occur at the centres).
The children at the Australian centres were as traumatized, on average, as the Ontario children. Two years of close monitoring of 49 of the Australian children also revealed that, as in Ontario, most did not really understand why they were there, at least initially (Strategic Partners, 1998). Half of the children said they were happy (more of these in change-overs than supervised visiting), and half said they liked seeing their visiting parent now. All children in change-over and 70 percent of children in supervised visits said the visits were better than they had been before. Three quarters of the children said they felt safe at the centre. Security for them seemed to be provided by the constant presence of workers in the room.
Few of a smaller sample of 22 children wanted to see their access parent outside the centre. Seven of the 49 children stayed fearful-all of these children had experienced direct threats of violence or abduction from their access parent, and the poor quality of their interactions with their access parent appeared independent of the residential parent's behaviour. As in the Ontario project, this raises doubts that supervised contact is good for all children.
Most children's behaviour, however, seemed to improve after about six months; the more visits the more quickly it improved, and the longer the time in the service, the greater the gains. The more the children felt secure with regular safe contact, the more they responded positively to their access parent. Children in change-over responded more quickly than those in supervised visits. Better interactions between access parent and child were associated with a shorter time since separation, some willingness among the parents to communicate, an access parent's positive and well-attuned attitude to the child, and the belief of residential parents that their own relationship with the child was improved by using the service. Supervised access does appear to help begin to mend torn relationships between most access parents and their children. None of the centres forced children to visit. It seems reasonable to speculate that when a child is not free to resist access, as in some U.S. states, more children in supervised access will suffer badly.
How did parents feel about supervised access? Residential parents entering the program mostly wanted safety (77 percent). Most felt that previous arrangements had been unsafe. Most of those interviewed (a sub-sample) described having to cope with persistent conflict over access (ranging from violence to harassment by ex-partners) by going to extreme lengths to avoid it, that is, by denying access. All of the residential mothers interviewed said they felt safer using the program, but many entering the program thought the child ought not to have contact with the access parent. However, this attitude often softened over time. Two thirds of residential parents reported that they coped better with access parent visits than they had before they were supervised.
Non-residential parents, on the other hand, primarily wanted access (60 percent), and one third of them strongly resented having to use the service. Many of them had thought there were practically no problems beforehand and that residential (custodial) parents had been obstructing access. They felt frustrated, confused and angry, and provoked into antagonistic behaviours by having to use supervised access, by their ex-partner's refusal to communicate directly, and by their grief and loss. Most felt locked into a personal and intense battle with their spouse that allowed little thought for the children. This had led many to stop seeing their children, before eventually seeking court orders to regain contact (access-related litigation nearly doubled after the 1995 family law reforms were passed in Australia. The increase may have been caused by renewed applications from fathers who felt they would fare better under the new laws [Family Law Council, 1998]). Access fathers' resentments also often softened over time.
Only half the parents (residential and access) thought their former visiting arrangements had also caused problems for their children, although the evidence from the children clearly showed them wrong.
The centres did not actively engage in helping parents improve the communication, cooperation and understanding needed to manage access independently (although some offered counselling and related service). Over the two years, the average length of stay in the service went from three to five months, reflected the increasing number of parents who did not move on. Centre workers felt most of the parents would need more than the regularizing of contact, including a hiatus in hostilities, to be able to manage access independently; they needed to learn parenting, communication and cooperation skills. Centre workers worried that without the additional supports, parents would become dependent on using the centres, thus hogging limited resources. One of the disturbing results of the study was that communication between parents did not improve during the time in the program, and 70 to 85 percent still had no contact, or worse contact, as time went on. The confidence of both residential and access parents to be able to manage contact without supervision actually diminished the longer they were in the program. The higher confidence of access parents at the outset diminished somewhat, while residential parents appear to have become even less confident about managing contact afterwards.
Sixty-three parents left the program during the evaluation, mostly because of changed court orders. Few felt ready to move on. On average, one third of the parents were trying to make their own arrangements. Two thirds of residential parents were less happy with the post-supervision arrangements, while only 10 percent of access parents were less satisfied. The high anxiety and dissatisfaction among residential mothers upon leaving the service raises questions about the capacity of supervised access, on its own, to diminish the incidence of access disputes among high conflict, non-communicating and non-cooperating parents over the long term. Unfortunately, no longitudinal studies were found that tracked graduates of access supervision to see whether any pre-supervision practices resurfaced.
Is effective access supervision an inexpensive strategy for dealing with hard cases, compared to the alternatives, primarily litigation? In a submission to the Australian Law Reform Commission's study of complex cases, the Australian and New Zealand Association of Children's Access Services (ANZACAS) estimated that a two-percent reduction in existing contact litigation (contact cases and cases begun but settled before hearing) would cover the cost of establishing and operating a national system of access centres. The estimate was based on the costs of the Ontario's pilot project (ALRC, 1995). The Law Reform Commission endorsed supervised access as a short-term solution for complex cases.
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