Report on Family Law Research in Nunavut
Background-what is the status quo?
In Nunavut, there are relatively few resources for people with
"family law" problems. Not everyone wishes to engage with the law to determine their rights or responsibilities upon a breakup; in many cases informal family arrangements work best and last longest.
However, our findings suggest that those people who choose to turn to the law have very few, poorly understood, options. Those who have gotten involved in the law for family matters have experienced a very low level of success. On the basis of community consultations (to be described and analyzed in a later paper), and very preliminary data from a community-based study, we have drawn some conclusions about the state of family law.
Underlying Legal Principles
One key question we asked was whether disengagement from the family law system was a consequence of a sense that the underlying principles of family law were profoundly out of kilter with family life and Inuit culture. However, we found that there are relatively high levels of acceptance of basic family law principles. It appeared in our meetings that most people felt the best interest of the child should govern decisions about children; parents who have money should support their children, even if they are not living with them; and partners in a marriage or common law relationship contribute equally, even if differently.
One clear difference is the extent to which extended family continues to have a key role in filling the gaps of either inadequate parenting or absent parents. There is very little recognition for this role in existing information campaigns or services.
As noted, there was considerable community support for recognition of a parental obligation to support children. It was our conclusion that child support is a much higher priority issue than custody; access; or spousal support. An indication that there was relatively strong support for extending the common reach of child support principles was a clear message that grandparents and other extended family caregivers should be able to receive support if they were raising children.
Another clear message was the sense that child support was unreasonable where it is being enforced against people who do not have any money. It was important to recognize and acknowledge non-monetary forms of material support for children, including providing country food.
Concern was also expressed about the potential for child support to be mis-used by a parent, and for child support to be a reason either to leave a marriage or to have more children.
Custody and Access
As noted, custody and access does not appear to be a priority issue. Where parents live in the same community, custody and access do not seem to be a major problem (unless there are child protection issues involved). However, access and/or custody can be a problem where there are large distances-if one parent takes child(ren) to a community far away, there is often little that the other can do because of cost of exercising access.
Also, where different provinces are involved, there is real confusion about
"which has the more powerful law" and opportunities for participation in court decisions across provincial boundaries.
As in southern Canada, the concept of spousal support is not necessarily well understood nor does it receive universal support. While the principle of equal contribution during marriage is well-understood and seemed to be accepted, the legal consequences that flow from that principle were less well understood or supported. We had relatively limited discussions about spousal support.
There was clear recognition that often a person leaving a marriage will lose access to the matrimonial home. When the person leaves with children, or because of violence, there is a perception that this can be very unfair as well as placing a real strain on their families and/or the shelter system. However, there was also a sense that this problem is hard to solve, due to the housing shortage and the reality of violence that interferes with people asserting a right to continuing occupancy. Often, there was no place for either spouse to go.
Obligation to Seek Child Support
Income Support does not appear to enforce the obligation to seek support against parents or former spouses who may have a right to support. They do collect support in the cases where it is being paid through the Maintenance Enforcement Office. However, income support workers appear to clearly recognize that child support is not a right that is easily exercised by people in communities and in practice they do not require people to seek support.
Overall, there is a relatively low level of legal information in the communities.
People do not know when there is a legal right to support (particularly in the case of common-law relationships, or people who had children after very brief relationships, or extended family members raising children). The vast majority does not know what level of support they would be entitled to, and are unfamiliar with the child support guidelines as a means of calculating support. They know very little about legal options surrounding custody and access, in particular, do not seem to consider the court a resource if one parent has taken a child or children without their agreement to live in another place.
Child support itself was not necessarily well-understood. There is a clear perception in many cases that child support is a government program to support children, rather than an obligation on parents. Child support posters, though prominently displayed in many communities, were not identified with any message about financial support for children.
For a very significant number of people, the function of the Maintenance Enforcement Office was also an unknown; this is not entirely surprising, since very few people (under 200) have court orders.
While communities expressed a need for legal information, the people in our meetings were equally clear about the requirements for useful legal information. The actual information needed to be quite straightforward and not overwhelming. More importantly, it must be information backed up by services, so a person could ask questions and get some assistance. Information that sets out rights without providing assistance asserting them was not seen as useful.
This conclusion corresponded very precisely with our findings about the family law process as a whole.
The most significant finding of our research was the existence of a large number of people who have attempted unsuccessfully to use the family law system, or who were facing problems within the system. It appears that they have been stymied at every point by a range of systemic obstacles; most fall out of the process well before they get to court.
- First, a significant number of people are discouraged before they ever get to court in that in many cases, asserting family law rights will be perceived as provoking a dispute that does not otherwise exist. The strong association between court and the coercive power of the criminal law is another powerful factor preventing some people from bringing forward their family law issues. It is not a venue where people see themselves as proponents.
- Second, there is a recognized lack of services to provide counselling to couples who want to stay together.
- Third, where people are splitting up, there are very few resources to draw on in trying to work out family law rights and obligations.
- There is a huge shortage of lawyers-the backlog at legal aid is 70 unassigned family law cases in the legal aid system for Nunavut alone; there are only two family law lawyers, both of whom work for legal aid.
- It appears people do not turn to courtworkers for family law matters. Courtworkers don't have significant knowledge or training about family law matters, and are often caught in a conflict of interest if they have represented someone in a criminal matter.
- Social Workers are overburdened, and their involvement with families tends to be limited to the traumatic area of child welfare. People did not seem to see social workers as a resource.
- Fourth, people get lost in the process-agreements are not finalized, people do not make it into court, orders don't get filed with Maintenance Enforcement, etc.
- Fifth, most orders that are actually filed with Maintenance Enforcement are in default; the majority of them are in serious default.
- Sixth, most people in the court process don't appear to understand it. For example, payers who don't understand how to vary orders requiring them to pay sums far in excess of their incomes. Or payees don't know what to do once they have an order, or after an adjournment for more information. Neither party seems to know what to do if there is a court in another jurisdiction involved. In all, the process itself appears to take attention away from the issues and out of the control of parties.
Not all the cases where people are applying for legal aid are highly contested; many are relatively low conflict. Instead, in many cases, legal aid clients are people who need assistance with the process and with knowledge about their entitlements. Currently, there is no intermediate process to deal with the needs of these people.
That said, a high number of cases involve domestic violence. This is significant in a number of ways.
- Often, where violence is in issue all other
"family law"issues are left aside in an overwhelming concern for immediate safety and
"pulling life back together". Taking steps towards finality in relationships is often not welcomed as people try to assess the possibilities for change and reconciliation.
- Violence provides an important reason that people will be unwilling to assert legal rights on behalf of themselves or their children; they may wish to achieve a complete separation or be intimidated out of any confrontation.
- In many cases there is also an involvement of the courts in the criminal sense. While there is a clear need for additional safeguards to address power imbalances in these cases, it is also clear that being forced back into court in order to resolve family law issues is likely to be a significant deterrent to any involvement with family law.
Objectives of a Family Law Strategy:
- Build awareness of the rights and obligations of partners on separation.
- Develop an accessible
"middle tier"of service assisting people to work out family law issues
"in the shadow of the law".
- Working with communities and other government departments, attempt to ensure that there are community-based family law services for counselling and mediation.
Elements of the Plan:
This is not a primary area for change. Existing principles are relatively well-accepted, and there has been a major reform in the family law area over the past ten years in the NWT.
Two areas where change may be in order are:
- A revision to the Rules of Court and forms to create earlier options for settlement and to assist unrepresented litigants.
- Developing enhanced options for fast action to protect against and prevent domestic violence through victim-focused legislation along the lines of Saskatchewan or Manitoba. Under this legislation, someone experiencing domestic violence could apply to a judge or JP to get a protection order or other rights, including exclusive possession of the home.
- Increase basic knowledge at the community level about legal entitlements and responsibilities under Family Law Act, Children's Law Act and Maintenance Enforcement Act at the community level.
- Ensure legal information is provided in English, Inuktitut and Inuinaqtun and in formats that are useful for people with difficulty reading.
- Ensure that legal information action-oriented and is tied, as clearly as possible, to a
"next step"in the process. This will require improved integration of services, and new services.
- Improve the integration of services and
"one-window"approach to family law matters by expanding the functions of the existing Maintenance Enforcement Office so that it is reconfigured as a
"Family Support Office".
- With additional staff, improve mechanisms to promote disclosure, mediation and settlement before cases go to court. Over time, expand the scope of these opportunities to include community-level services in conjunction with the Family Support Office.
Specific outcomes of these expanded services would be
- Increase the number of cases where persons who seek child or spousal support are able to get an agreement or an order providing support.
- Reduce the backlog at legal aid by providing a channel for low-conflict cases to be resolved.
- Increase parties' sense of control over the process by leaving court as a last resort.
- Increase the number of orders being effectively enforced-there is clear evidence that people follow the terms of agreements to a far greater degree than they do orders imposed by a court.
- Increased availability of services in Inuktitut.
- Develop a fast-track into legal aid in certain circumstances:
- to provide a legal review of agreements on a basis of presumed eligibility.
- to assist with high conflict cases.
- to provide representation to clients where there is violence.
- ensure existing orders reflect a real ability to pay .
- expand use of alternative dispute resolution at early stages to resolve default and arrears matters by consent before they are brought to a hearing.
Right now, the government invests in two major services: Legal Aid, delivered by the Legal Services Board, and Maintenance Enforcement.
The services provided through the Legal Services Board provide full legal assistance to a limited number of people. Availability of these services are very limited, however, because of income restrictions and a shortage of family lawyers in Nunavut (and the NWT). The result is a considerable backlog. With only two lawyers practicing family law in Nunavut, there can often be conflicts of interest as well.
Maintenance Enforcement is also in a double bind. Currently, the office is overwhelmed by workload stemming from the transition from the NWT and a large number of defaulting payers. At the same time, it is widely acknowledged that there are far fewer orders or agreements registered with the office for enforcement than there are people, especially children, entitled to receive support in Nunavut.
Our findings strongly support the conclusion that lack of access to the family law system is ultimately rooted in a lack of accessible and appropriate services; more specifically, a lack of integrated front-end services. The primary function of this report is to recommend a direction for developing these services, and a legal information campaign that supports them. It is acknowledged that additional resources will be required to change this situation. In a pilot phase, those funds could clearly come from the federal funds under the Child Support Initiative.
"Family Support Office"
It may be possible, using federal funding, to expand the services of the Maintenance Enforcement Office in order to provide assistance to individuals. Several jurisdictions-particularly British Columbia-have expanded court-annexed services to provide assistance to couples who are experiencing family breakdown and who do not have access to lawyers. In British Columbia, two-thirds of families in Provincial Court are unrepresented.
The BC Family Court Counselor program is particularly notable. Trained mediators meet with couples (first separately) to discuss their issues and to provide advice about legal options, rights and responsibilities. If both parties are willing the counselors will work with the parties to develop agreements that can be filed with the court for enforcement purposes. We could use federal funding to hire an experienced and respected person to provide information and to assist people to negotiate agreements
"in the shadow of the law".
It will be important from a community service point of view to ensure that people can receive services in Inuktitut as well as English. More broadly, to help ensure that the process is as comprehensible for people unfamiliar with the larger legal system, I would recommend that we recruit an Inuk for the position, with an expectation that some training in both family law and mediation would be required.
By focusing our attention on services to assist people to come to agreements, we may help to defuse the perception that the legal system is about creating disputes. We will almost certainly be able to achieve results that are better understood, using a process more in the control of parties.
In our case, it may make more sense to develop services of this type as an extension of the Maintenance Enforcement Office, rather than the family court, since the family court is not very active at this time. This integration would promote a sense of continuity of service, as people could turn to the same place to receive information about support and other family law issues, to get assistance in negotiating agreements or with legal referrals, and to have agreements or orders enforced.
Given the low levels of understanding of the maintenance enforcement function, we also recommend a shift in the profile of the office to reflect the change. Instead of being a
"Maintenance Enforcement Office" it could be re-named as a
"Family Support Office" or
"Child Support Office". People already understand these concepts; if we expand the range of services, we may be in a position to live up to the name and to fill the promise of significant integration.
In the interests of integration, we recommend work with the Legal Services Board to develop a
"fast-track" to legal advice for those who have had a problem with the mediation model. It may also be desirable to arrange such a fast-track to assist people to get independent legal advice on the terms of any agreement that is reached. This would reduce the lawyers' role in uncontested cases to one of oversight, hopefully reducing the workload and resultant backlog accordingly. For a fast-track to be effective, it will likely require cooperation between lawyers in different regions, as we continue to have very few lawyers in Nunavut. The Legal Services Board may also wish to consider a system of presumed eligibility for a first visit to Legal Aid.
"Default Hearings" and Mediated Settlements
There has been a hiatus of some years since default hearings have been conducted in Nunavut. That hiatus has left numerous files on the books with significant arrears.
One of the key issues is helping people-often those with relatively little 'court savvy' get out of difficulties with historical support obligations where those problems are interfering with current payments, or are wrongly incurred. There are also problems where a person is in contemptuous arrears due to intentional non-payment.
As we re-introduce the practice of conducting default hearings, we will want to consider the following issues:
- How do we ensure that court and the adversarial process remain a last resort?
- Development of a non-adversarial process to address problems with arrears at first instance;
- Issues with the rules of civil procedure to ensure that hearings can be conducted with a minimum of formality-unrepresented debtors and the Maintenance Enforcement Officer appearing on her own behalf.
Public Legal Education and Information Accompaniment
We need to begin to organize a campaign of public legal education that would be complementary to the development of a single-stop child support office. The key goal in the development of PLEI will be to try to produce materials that people can use.
A key emphasis in the development of PLEI materials is to have a next step-in the words of one participant in Pond Inlet,
"A phone number where a person can find out more." This demand, for an accessible source of information and direction in the legal system, can be met to some degree by the development of a
"Family Support Office" with new staff tasked to be able to answer family law questions from the public.
There are target areas where there is a clear need for clear information:
- The rights of common-law partners. Common laws have rights in law almost identical to legally married persons. There is very little public understanding of this point. Lack of knowledge on this point has caused people to fail to pursue basic rights like child support, let alone spousal support or any division of property. We need to be sure to have this information to help prevent confusion where there is apparently conflicting advice in other sources (e.g., the child support guidelines say they are only for people who are divorcing).
- Grandparents, or other extended family members, can apply for child support where they are actually raising the child. There is a fairly large number of cases where grandparents are just
"taking care"of a child, without any intention to adopt. Their right to support, and their ability to obtain it through an agreement, is important information to put in the hands of the public.
- The functions of the maintenance enforcement office.
- The message that child support is a child's right-the current child support posters may be too oblique (informal focus testing revealed that a wide selection of people did not know what they were saying).
- How family law matters are addressed between provinces-what is the effect of a court order from a different province, first steps in how to challenge it.
- We also need PLEI materials that go one step further, that is, provide tools to people to change their own relationships in law.
- Better distribution of child support guidelines-many individuals can use and understand the guidelines. They are already available in French and Inuktitut. It is important to clarify that these guidelines apply to common-law couples as well.
- Self-help (or mediated) divorce kits-We are proposing to develop a divorce kit to help people apply for divorces without legal assistance. This task has been assigned to the summer student being hired in the Policy Department. Hopefully, the availability of services to help negotiate agreements will allow these kits to be useful to individuals who have minor children as well as people with no children or only adult children.
- Self-help (or mediated) court application kits.
The Rules of Civil Procedure are directed towards an adversarial process, ending up in court. It may be possible to work on forms, and indeed the process as a whole, to simplify matters for unrepresented litigants.
The Law Review Commission will undertake continuing family law consultations, including issues related to custody and access. There will be coordination with the joint FPT Custody and Access Consultation.
We do not anticipate a change to the legislation.
Short-term project activities:
First proposal submitted to Child Support Initiative to secure $210,000
Policy summer student does groundwork for:
- Development of Self-Help Divorce Kit and PLEI pamphlets to support the opening of a Family Support Office.
- Proposal for Revision of Rules of Court.
- Assistance in developing Mediation approach for default hearings in Enforcement Office, including some trial mediations in the Iqaluit area.
Recruitment of Family Support Office Counselor.
Bench and Bar Committee seeks funding for proposal to develop appropriate community mediation in Nunavut. Possible resources include the Aboriginal Justice Initiative and federal PLEI funding.
"fast-track" protocol with Legal Services Board.
Family Support Office Counselor receives training-likely, alongside other Justice Officials.
Maintenance Enforcement Office-in new, larger quarters-re-opens as Family Support Office staffed by Maintenance Enforcement Officer and Family Support Office Counselor.
Default process underway in a limited number of communities through circuit court.
Nunavut Law Review Commission continues consultation on family law issues.
Policy work to recruit appropriate family law counselors/mediators; develop appropriate community and interdepartmental linkages.
Long Term Strategy-Community Outreach.
Pilot Training and Deployment of Community Family Law Workers.
The Bench and Bar Committee on Mediation has been developing a specific proposal to research and develop Nunavut-appropriate family law mediation. If they are willing, we would like to work with them, in a cooperative manner including Inuit participation, to add elements to their work to date.
As part of the process, we may be able to bring trained mediation-educators up to Nunavut to conduct some training for existing staff in Courts, Administrative Agencies, and other Justice Divisions. This cost could potentially be underwritten by the Department. While here, they may be able to undertake research and consultation about appropriate training for community-level mediators. One appropriate end-product of this work be the development of a two to four week training course for community-level family law mediators.
We would support a proposal-most likely by the designated Public Legal Education agency, the Legal Services Board-to deliver this course on a pilot basis. For the first session, we may wish to start with a limited number of communities to develop the course and organize and support the services to be delivered at the family level. Participants would be recruited from community justice committees, counselors, teachers, social workers etc. It is our understanding that there may be federal government resources available for this training under broad PLEI auspices.
Depending on the success of this project, we recommend as Phase II.
Victims of Violence Legislation
To develop Victims of Violence Legislation would require significant consultation with affected groups, and, before it could be brought into force, significant education of relevant professionals, including JP's or Judges, Peace Officers, Courtworkers, and Lawyers. It would also require an advertising campaign to get out the message that there are some short-term legal options for victims, and how these options can be accessed. Once again, there is significant role for policy coordination in this regard.
Phase II-Trained Community Family Law Workers in all communities
Phase II would be a modified version of the pilot project, in that we would attempt to put at least one person in each community who has an understanding of basic family law rights and responsibilities, and the mediation process.
In implementing this project, it would be worthwhile to set the following targets:
- Pilot course-spring 2001 (7-10 participants).
- Second Course-fall 2001.
- Third Course-winter/spring 2002.
It should be a priority over time to develop linkages with the Department of Health and Social Services, and potentially, with the Department of Education to consolidate family services at a community level. In terms of family law service reform, there has been a clearly expressed demand for counseling to help couples work out their difficulties when it is possible, as a necessary compliment to services on family breakdown. There are some very interesting projects underway already which could be quite complimentary, for example:
- Couples counselling in Cambridge Bay-currently the Wellness Director is seeing more than twenty couples having difficulties.
- The Family Centre in Clyde River-the services and space in this place could quite logically be expanded to include information about family law.
- Strong interdepartmental and community level linkages will be the key to sustainable community level services.
Ongoing activities of the Family Support Office at that time will be:
- providing information to clients
- conducting mediations to develop agreements between parties
- performing enforcement activities
- financial management of cases registered with the Program
A final element of this strategy will be to evaluate the effectiveness of both the Family Support Office and the Community Mediators after a reasonable period of time has elapsed. Key outcomes will be: number of people trained and retained as Community Mediators, successful mediations completed (also including a view to compliance with obligations), number of cases in Maintenance Enforcement, number of cases in default.
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