Child Access in Canada: Legal Approaches and Program Supports

Conclusion

SUMMARY AND OVERVIEW

There is significant evidence that access denial and failure to exercise access are significant problems, not only in Canada, but in other jurisdictions as well.  While the precise scope of these problems remains unclear, the research suggests that failure to exercise access is a more prevalent problem than access denial.  Where access is seen as a parental responsibility serving the child's best interests, rather than a parental right, both denial of access and failure to exercise access are equally important problems that need to be addressed.  Yet enforcing exercise of access seems counter-productive at best, and if, as the research shows, the custodial parent's well-being is the single most important predictor of children's well-being, the onerous punishment of unwarranted access denial will be as well.

Complicating these issues is the fact that most of the access disputes pursued through the courts are complex cases involving an ongoing dynamic of extreme hostilities having their origin in the parents' unresolved separation.  Disproportionately high numbers of these cases also involve violence and/or abuse.  Punitive enforcement measures by the courts do not resolve these kinds of disputes and may actually encourage them.

The brief survey of legislative approaches to enforcement in Chapter 2 reflects the awareness of these difficulties in most jurisdictions, and the diverse strategies being adopted to address them.  The most common approach is to prevent or resolve access disputes before they enter, or go too far into, litigation.  The brief survey of strategies in Chapter 3 indicates that parenting education, counselling and mediation are effective in reducing hostilities at the time of separation and divorce, and do help parents reach initial agreements.  However, these supports appear to be most effective for those disputing parents who need the least help, and ineffective for those parents who need the most help and who will end up using the most court time.  It is not clear, therefore, just how much difference these programs ultimately make, although they do seem to make some difference.

For those jurisdictions where access continues to be awarded in very difficult cases-which would appear to be virtually all jurisdictions-by far the most popular strategy for resolving disputes is supervised access.  Whether this is a solution that is always in the child's best interests, or whether it is a long-term solution as it is increasingly expected to be, is uncertain.

ADDRESSING DATA NEEDS

This report surveyed the state of the research on the incidence of unwarranted access denial and non-exercise of child access, as well as the legal caseload of access enforcement.  The only systematic Canadian study found on these issues was the data on non-exercise of child access collected by the National Longitudinal Study on Children and Youth (NLSCY).

More systematic and reliable data are needed, either from existing Statistics Canada surveys or from specific court-based projects.  Table I lists data that the author identified as important, the survey instruments from which these data could be drawn-or, in some cases, are already being drawn-and a brief indication of each item's potential use.  Clearly, the survey instruments would need in-depth analysis before any decisions could be made about adding the proposed items.

The items are listed in three categories:  unwarranted access denial, failure to exercise access and court caseload, or the cases in the court system involving access denial and failure to exercise access.

Unwarranted Access Denial

The items in this category provide information on the following:

  • the perceived incidence of access denial and unwarranted access denial;
  • the nature of the pre-separation living arrangement and post-separation access arrangements in which perceived (unwarranted) access denial is most likely to occur;
  • the nature of post-marital relationships in which perceived (unwarranted) access denial is most likely to occur; and
  • the attitudes and values towards post-separation parenting of the custodial and access parents reporting perceived incidence of (unwarranted) access denial.

Surveys of parental self-reports cannot be trusted to reveal the actual incidence of access denial because parents' perceptions of access denial often err for a variety of reasons.  Even when the survey documents the incidence of certain specified events,[24] it requires parents to judge whether things actually happened that way, and whether the custodial parent was actually denying access, with all the knowledge and intention that the word denial implies.  Parental reports provide an even less trustworthy picture of the incidence of unwarranted access, because parents' lack of legal knowledge and their vested interests make them poor judges of whether any access denial was warranted.

Still, data from parental self-reports is important to policy making that treats access denial as one component of-and often a symptomatic measure of-more general problems in post-separation parenting practices among Canadian families, and has as its goal the fostering of post-separation arrangements that serve the child's best interests.

Large-scale surveys such as the NLSCY provide large survey samples, and a great deal of other data on the families against which the access denial data can be compared.  These surveys are limited, however, in being able to measure only aggregates:  they cannot compare responses of custodial and access parents in individual couples.

Court-based projects could also periodically collect data on the incidence of access denial, by tracking separated or divorced couples with court orders (cf. Ellis, 1995).  A court-based project would sample vastly fewer families, however, and only those with court orders.  Slightly less than one half of separating and divorcing parents do not have court orders even five years after separation (Department of Justice Canada, 1999).  Existing research suggests only a minority of these will have access problems.  Respondents to a court-based survey are also more likely to be self-selecting.

The NLSCY seems a suitable survey vehicle for collecting this information because it is a large, longitudinal and national (25,000 sample) study that:

  • already collects information on separated and divorced families, their custody and access arrangements and access practices (especially exercise of access);
  • already incorporates some of the variables (A6-12, Cycle 1) that would be useful in analyzing the factors associated with perceived access denial;
  • surveys only families with young children (it will eventually track children into adulthood);
  • would allow analysis of the impacts of perceived access denial on short-term and long-term outcomes for children and custodial parents;
  • would allow ongoing longitudinal tracking of access problems in families, and analysis of the factors affecting unresolved access problems; and
  • would provide insight into the family context before marriage break-up, and could be used to identify problems at the time of separation or divorce and their later impacts on the parents and children.

The survey can track both custodial and access parents' post-separation lives, but its current methodology needs adaptation to survey separated fathers and to explore the nature and impact of relationships between children and access parents (Department of Justice Canada, 1999).  It would take considerable time to develop and pilot the questions (researchers would need to determine whether the additional questions made the survey unwieldy, for example, and to develop protocols for reaching access parents).

Failure to Exercise Access

The NLSCY already collects longitudinal data on exercise of access by access parents, and on the factors associated with different access patterns (Department of Justice Canada, 1999).  No surveys currently collect data on specific instances of failure to exercise or breach of access-specific instances in which access parents fail to pick up the child as specified in the access agreement, or fail to return the child on time.

Analyzed in concert with items 5-11 in Table I, the data items in failure to exercise access section would provide information on the following:

  • the incidence of failure to exercise access, including loss of contact, specific failures to exercise access and breaches of access;
  • the nature of pre-separation living arrangements and post-separation access arrangements in which failure to exercise access is most likely to occur;
  • the nature of post-separation relationships in which failure to exercise access is most likely to occur;
  • the attitudes and values towards post-separation parenting associated with failure to exercise access;
  • the quality of the access that is exercised;
  • access parents' experience of access parenting; and
  • possible alternative models of access arrangements.

The NLSCY would seem the natural vehicle to expand and deepen the data already collected with the new items suggested.  The General Social Survey (GSS) also explores social relationships, including parental relationships with children.  However, the GSS is smaller (10,000 or so sample size) and not longitudinal, so it would not be possible to analyze the impacts of quality of access on child or parents.

Court Caseload

The items in this category provide information on the following:

  • the incidence of applications concerning access denial and non-exercise of access entering courts in Canada, the passage of these applications through the courts, and the disposition of, and penalties awarded in, cases that receive final court hearing;
  • the extent to which repeat litigations, and re-litigating individuals, figure in the court caseload for these kinds of cases;
  • the effectiveness of court-based programs, such as mediation and counselling, in resolving these kinds of cases before they reach final hearing, and in preventing re-litigation; and
  • the nature of the applicants who enter the courts seeking redress regarding access denial and non-exercise of access, including the nature of their post-separation relationship with the other parent, their attitudes and values towards post-separation parenting, their post-separation parenting arrangements, the frequency and quality of their exercise of access, when applicable.

Given the small numbers of individuals making court applications concerning access denial and other post-parenting problems, it would be inappropriate to gather this data from large-scale surveys designed for broader purposes.  However, the courts do not currently collect systematic data that could be used to assess access enforcement in the courts.  The first step to collecting this data in a systematic way would be to implement a consistent and appropriate system of court recording within Canadian courts.  A recent study (Ellis 1995) concluded that it would also be feasible to mount a periodic national study of custody and access issues, using court files to identify claims and claimants, and as a basis for follow up with families.  A court-based project would be too small to make longitudinal study of families possible, since attrition rates would be too high.  Still, it would need to be national, and to collect data periodically over considerable time, to be useful to policy makers.[25]

The court-based project envisaged above would have two complementary parts:  providing data on the numbers and kinds of access enforcement cases that occupy the courts, and providing data on the characteristics of the applicants, derived from follow-up interviews with applicants.

In follow-up interviews, the project could use the same questions proposed for the NLSCY to assess the nature of the applicants (items 5-12 on unwarranted access denial and items 4-6 on failure to exercise access).  This would enable researchers to compare the characteristics of this tiny-and possibly atypical-group with the characteristics of other Canadian separated and divorced couples with young children.  A court-based study would also facilitate qualitative research into the problems of access denial and failure to exercise access.  Despite the small numbers of subjects involved, this project would take considerable time to mount, depending on the number of researchers involved.

TABLE I :  DATA NEEDS AND POTENTIAL DATA SOURCES

Section A:  Unwarranted Access Denial

Data item Existing
source
Possible source Rationale for item
1. Number of access mothers and fathers reporting access denial (defined)   NLSCY Incidence of access denial.
2. Number of custodial mothers and fathers reporting access denial (defined)   NLSCY Incidence of access denial.
3. Reasons given by custodial parent for denying access   NLSCY Reasons for access denial and incidence of unwarranted access denial.
4. Number of access mothers and fathers reporting "interference" with access visits   NLSCY Incidence of access difficulties that fall short of access denial, but that may be associated with other access difficulties and with failure to exercise access.
5. Characterization of access agreement reported by custodial and access parents reporting access denial:
  • "reasonable" access vs. specified access;
  • rigid vs. flexible access;
  • frequency of access for specified access;
  • restrictions on access; or
  • conditions under which access can take place   (e.g. supervised access)
  NLSCY Association of access denial and type of access arrangement.
Impact of changes in levels of access awarded and access denial.
6. Characteristics of access arrangement (court order, private agreement or no agreement) reported by parents reporting access denial NLSCY NLSCY Association access denial and type of access arrangement.
7. Frequency of exercise of access by access parent among custodial and access mothers and fathers reporting access denial NLSCY NLSCY Association access denial and actual frequency of access.
8. Type of marital arrangement NLSCY NLSCY Association of access denial and type of arrangement.
9. Preferences by the access and custodial parents for the access parent to spend more time with the child than currently authorized   NLSCY Assessment of the proportion of access parents who do not experience access denial, assessment of satisfaction with current access awards, and measure of exercise of access in relation to awarded access.
10. Custodial and access parents' beliefs about the importance to the child of maintaining close contact with access parent   NLSCY Estimate of prevalence of key reason for denying access without warrant by custodial parents.  Could be subsumed as a possible reason for denying access under 3, above.
11. Relationship with ex-spouse:
  • degree of tension; and
  • ability to resolve access disputes.
NLSCY NLSCY Association of access denial and type of marital relationship.
12. Age of child NLSCY NLSCY Association of access denial and age of child.
13. Number of access parents reporting access denial who had filed a complaint in court   Court-based Proportion of access parents reporting access denial who make application in court.
14. Among those access parents reporting access denial who do not file a complaint, reasons for not filing   Court-based Barriers to access parents seeking access enforcement through the court system.

Section B:  Failure to Exercise Access

Data item Existing
source
Possible source Rationale for item
1. Frequency of exercise of access by access mothers and fathers: NLSCY   Incidence of failure to exercise access, and factors associated with failure to exercise access.
at separation, two years and five years NLSCY    
type of marital arrangement; NLSCY    
Type of separation and access agreement; NLSCY    
age of child; and NLSCY    
child support payment. NLSCY    
2. Number of access mothers and fathers reporting breach of access   NLSCY Incidence of failure to exercise access.
3. Number of custodial mothers and fathers reporting breach of access   NLSCY Incidence of failure to exercise access.
4. Number of access mothers and fathers reporting failure to exercise specific access   NLSCY Incidence of failure to exercise access.
5. Number of custodial mothers and fathers reporting failure to exercise specific access   NLSCY Incidence of failure to exercise access.
6. Reasons reported by access parent for failure to exercise access   NLSCY Incidence of failure to exercise access.
7. Characteristics of fathers who fail to exercise access (e.g. income, age or remarriage) NLSCY NLSCY Further factors associated with failure to exercise access.
8. Access parent's involvement with child consists of:
  • outings, visits with child;
  • taking child to the doctor, parent-teacher nights;
  • taking child to recreation, hobby, extracurricular activities;
  • taking child to school and collecting from     school; or
  • making breakfast, reading bedtime stories, nursing child when sick.
  NLSCY or GSS

 

 

 

 

 

Assessment of kind of involvement with child, including extent to which access parent takes decision-making and caring responsibility for the child.  Assessment of responsibility-sharing among parents after separation or divorce.
Assessment of extent to which different kinds of involvement affect ongoing exercise of access differently (if at all) and/or impact of access on child outcomes.
9. Child's preferences concerning, and feelings about, frequency and quality of visitation with access parent   NLSCY Assessment of impact of child's attitudes and behaviour on exercise of access and access denial, and on the effect of access on child outcomes.
10. What access parents would like to do with their children that current access arrangements preclude them from doing   NLSCY
GSS
Assessment of the impact of the access parent role on access parents' exercise of access and nature of ongoing involvement with their children.  Assessment of access parents' attitudes to, and preferences regarding, access with their children.
11. Number of custodial parents reporting ex-spouse's breach of or failure to exercise who have filed a complaint in court   Court-based Proportion of custodial parents reporting access parent's breach of or failure to exercise access who make application in court.
12. Among those custodial parents reporting breach of or failure to exercise access by the access parent who do not file a complaint, reasons for not doing so   Court-based Barriers to custodial parents seeking exercise of access enforcement through the court system.

Section C:  Court Caseload

Data item Existing
source
Possible source Rationale for item
1. Number of applications filed with the court alleging access denial   Court-based Incidence of access denial applications entering the courts.
2. Number of access denial applications that reach final hearing   Court-based Incidence of access denial applications proceeding through the courts.
Assessment of the proportion of cases entering the system that are not resolved by resolution programs.
3. Number of repeat applications filed with the court alleging access denial   Court-based Incidence of re-litigation of access denial disputes.
4. Number of applications filed with the court alleging breach of access or failure to exercise specified access (when applicable)   Court-based Incidence of failure to exercise access applications entering the courts.
5. Number of failure to exercise access applications that reach final hearing (when applicable)   Court-based Incidence of failure to exercise access applications proceeding through the courts.

Assessment of the proportion of cases entering the system that are not settled through resolution programs.

6. Number of repeat failure to exercise access applications filed with the court   Court-based Incidence of re-litigation of failure to exercise access disputes.

Assessment of the proportion of cases entering the system that are not settled through resolution programs.

7. Number of applicants making access denial applications, who have other current or past applications before the court on issues related to post-separation parenting (e.g. applications relating to child support, initial court custody and access awards, applications to vary access orders)   Court-based Extent to which individuals who make applications about access denial use the court system to pursue other post-separation complaints.

Other post-separation grievances experienced by individuals making applications about access denial.

8. Number of applicants with repeat applications concerning access denial, breach of access or failure to exercise access   Court-based Incidence of frequent users of the court system to pursue failure exercise access complaints.
9. Characteristics of applicants making applications about denial of access, breach of access or failure to exercise access:
  • items 5-12 on unwarranted access denial; and
  • items 4-6 on failure to exercise access.
  Court-based Association of access enforcement applications and individuals' use of the courts to resolve access enforcement problems:  type of access arrangement, conditions and constraints on access, type of pre-separation living arrangement, socio-economic status of family, type of post-separation relationships among ex-spouses, exercise of access, quality and kind of exercise of access, and attitudes to post-separation parenting.
10. Participation in:
  • voluntary or compulsory parenting education at time of separation or divorce;
  • voluntary or compulsory counselling at time of separation or divorce; and
  • voluntary or compulsory mediation at time of separation or divorce.
  Court-based Effectiveness of prevention and dispute resolution programs in resolving access disputes at time of separation or divorce, and subsequent access disputes.
11. Whether or not problem was solved following participation in the program(s) above   Court-based Effectiveness of prevention and dispute resolution programs in resolving access disputes at time of separation or divorce, and subsequent access disputes.
12. Participation in the following programs to resolve access enforcement disputes:
  • voluntary or compulsory counselling at time of separation or divorce; and
  • voluntary or compulsory mediation at time of separation or divorce
  Court-based Comparison of provincial and territorial approaches to resolving disputes before they reach final hearing.
13. Whether or not problem was solved following participation in the program(s) above     Effectiveness of prevention and dispute resolution programs in resolving access disputes at time separation or divorce, and subsequent access disputes.
14. Proportion of convictions for access denial, breach of access and failure to exercise access   Court-based Assessment of the dispositions of applications filed in court over access denial and/or failure to exercise access.
15. Penalties   Court-based Kinds of penalties applied to enforce access.

Notes to the Table

  • Unwarranted Access Denial
    • 3. Lists of possible reasons for denying access can be found in Thiessen (1994), cited in Strategic Partners (1998).
    • 4. A list of possible kinds of "interference" can be found in Kruk (1993), p. 62.
    • 5. Hirst and Smiley (1984) provide a range of access types:  free, regular flexible, regular rigid, irregular (not more than once in six months) and no access.
    • 5-8. The variables listed in items 5-8 are already collected by the NLSCY for separated and divorced parents as a whole.
    • 9. Question modelled on survey by Perry, Bolitho, Isenegger and Paetsch 1992, cited in McCall (1995).
    • 11. The NLSCY already captures level of tension among separated and divorced parents as a whole.  However, recent literature distinguishes between levels of conflict and ability to resolve access conflicts, and suggests child outcomes do not suffer when high conflict parents have strategies to resolve access disputes (cited in Kelly, 1993).
  • Failure to Exercise Access
    • 2. Possible lists of self-reporting reasons for failure to exercise can be found in Kruk (1993), and Family Law Council (1998a).
    • 3. It is not clear whether this information is already available, but was simply not included in the custody- and access-related analysis of the NLSCY (Department of Justice Canada, 1999), or if access parents' characteristics are not tracked after separation or divorce.
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