Report on Family Law Research in Nunavut

1. INTRODUCTION

On April 1, 1999, the new territory of Nunavut was created, carved out of the eastern part of the Northwest Territories. The existing laws of the Northwest Territories were "grandfathered" for Nunavut with a few modifications. Nunavut became eligible for funding from the Department of Justice Canada through the Child Support Team. These funds are earmarked to assist with the implementation of the Federal Child Support Guidelines. Nunavut Justice, having adopted the child support guidelines through the Northwest Territories legislation, and having used core funding to establish a territorial Maintenance Enforcement Program during 1999-2000, proposed to use its implementation funding allotment to undertake much needed family law research as a baseline for the future development of family law in Nunavut.

The Nunavut Department of Justice saw an opportunity to address an area in which little research had been done. Family law tends to be overshadowed by two principal factors. First, in the Canadian North, the pressing priorities of criminal justice reform often leaves little opportunity to address other concerns. Second, because Nunavut and the Northwest Territories have had few resources for family law, there has been a tendency on the part of governments to piggyback on the research, as well as the law, legal policy and legal models, of the rest of Canada. This is true even though the national family law reform picture is not always congruent with family life in the North, nor with the cultural distinctiveness of the territory.

1.1   Purpose of the Research

The new Government of Nunavut was particularly interested in better understanding community-level perceptions and uses of family law. While Nunavut inherited the laws of the Government of the Northwest Territories, a mandate exists for re-evaluating laws and programs to ensure that they are appropriate for the territory and, in particular, the Inuit majority. This mandate led a number of different parties to ask about the fit between, on the one hand, existing family law and family law-related services and, on the other hand, the interests and needs of the community. There was widespread recognition concerning some issues, for example, that access to family law was a problem in Nunavut. However, other problems and potential solutions were not as well understood and it was acknowledged that research would be useful. Questions to be addressed included the following.

  • What are the major community-level family justice needs currently unmet?
  • How should those needs best be met, in the eyes of the community?
  • What services are available and which are being used at the community level?
  • Can the government reconfigure existing services to make them more relevant to the life of more people in communities?
  • What are the sources of satisfaction, or dissatisfaction, with existing legislation and services?
  • Are there any models already in place?
  • How do people want to resolve issues about family breakdown, and what role, if any, can the courts play in that process?
  • What is the role of legal information in addressing access to justice issues?
  • What do people know, not know, or care about knowing?
  • What would be required to make family law information useful to people in the communities?
  • How could the law best reinforce community values about caring for children and supporting them?
  • How could family law promote security for women and children experiencing violence in the home?
  • What family law institutions would help promote fairness between partners as a goal during relationship breakdown?

In general terms, the purposes of the research were to:

  • develop data on family law matters such as adoptions, divorces, separation, use of services;
  • gather evidence concerning how families in Nunavut, particularly the Inuit population, manage and deal with family law matters at the community level; and
  • better understand the problem of access to family law and, at the same time, increase communication about and awareness of family law, family law rights, and family law-related services in Nunavut.

The list of potential research questions was long and it was clear that undertaking and completing the research would not be without difficulty. However, in the view of the Nunavut Department of Justice, finding answers to these questions-even if they were incomplete-was an important starting point in the possible reform of family law and the development of services. Hopefully, the information might help improve access to, the effectiveness of, and satisfaction with family law and family law-related services in the territory.

This report is written with two primary audiences in mind. First, it is an effort to consolidate information about family law for the use of northern policy makers and other participants in the field of family law. It is intended to provide a background for program and policy development that is rooted in the experiences of Nunavut families, rather than in the abstractions of the legal system or the presumed norm in southern Canada. Second, it is also intended to provide information about the particular northern issues in family law for southerners who are making policy with national implications. A northern reader may well be able to skip the section on context to the research findings; for a southerner, the context is essential before considering the similarities and differences between research findings from Nunavut and national norms.

1.2   Partnership and Participatory Research

One of the considerable advantages to being a small government is the tremendous potential for a wide range of stakeholders to get directly involved in making decisions and recommendations about the direction of family law policy, including this preparatory research project.

As a starting point, the Government of Nunavut sought out a partnership with the Legal Services Board, which is responsible for Public Legal Education in the territory.[1] Jointly, it was proposed to dedicate significant funding under the Child Support Initiative in the first year to research and needs assessment, looking at legislation, services and information issues. Nunavut Justice is also working closely with Maligarnit Qimirrujiit, Nunavut's community-based law reform commission.

The Department of Justice Canada supported the Nunavut proposal to conduct research, and contributed significantly to its development. The advice and assistance of a researcher in the Child Support Team's Research Unit was offered and used extensively. The funding provided through the Child Support Initiative made the project possible by paying for a half-time lawyer and full-time local researcher. The local researcher, a bilingual Inuk with expertise in community development, assisted in the design and implementation of several different projects over a period of several months. As noted below in the description of the research projects, the studies were undertaken with community input and involvement. As well as this overview report, a major product of the research was the development of a new Family Law Strategy for Nunavut (see Appendix 4).

1.3   The Program of Research[2]

In 1999 Nunavut made the proposal to undertake the research, which effectively limited the time frame for the work to fiscal year 1999-2000 (April 1, 1999 to March 31, 2000). The projects described below were carried out during this time, although certain follow-up matters and tasks were completed afterwards. For instance, data input and analysis from the Household Survey was conducted in the later parts of 2000 with funding and resources provided by Nunavut Justice as well as the Department of Justice Canada Research and Statistics Division and Child Support Team. The program of research consisted of data collection from five major sources:

  • review of existing data;
  • a household survey;
  • community and stakeholder meetings;
  • a service inventory conducted in most communities; and
  • interim feedback from Maligarnit Qimirrujiit.

1.3.1   Review of Existing Data

In order to assess data needs, we briefly reviewed a wide range of existing social statistics for Nunavut. The purpose of the review was threefold. First, when possible, we wanted to avoid duplicating existing research in the design of our survey. Second, we wanted to be able to assess aspects of our research by comparing our data with other data from the rest of Canada. Finally, we wanted to contextualize family law issues in Nunavut within a broader context of social issues that affect Nunavummiut (those for whom Nunavut is home). Population trends, housing availability, the presence of violent crime, and employment all have a serious impact on the resources that individuals can draw on in the context of family breakdown, and are necessary considerations if family law issues are to be addressed holistically.

1.3.2   Household Survey

The household survey was intended to provide quantitative and some qualitative information about family relationships, and in particular the impact on families of break-ups and related stresses. Local interviewers conducted in-depth surveys in 342 households in five Nunavut communities. The communities were selected from each of Nunavut's regions, and represent different sizes of community in the territory. The survey instrument (attached as Appendix 2) was based loosely on the 1995 General Social Survey, Cycle 10. The sample included 311 Inuit, 91 percent of the total sample, slightly above the proportion of Inuit in the overall population. There were 193 female respondents and 149 male respondents. While not a completely representative sample, this broad survey provides a useful snapshot on a range of key issues.

1.3.4   Service Inventory

In order to grasp the extent of existing family-related services in Nunavut, we interviewed municipal officials in seventeen Nunavut communities. We asked officials for their views on the existence of family law problems in their communities and the services available. This information helped contextualize responses in the household survey in terms of the community-level resources available to address family problems. (The questionnaire is attached as Appendix 3.)

1.3.3   Community Meetings and Interviews

As a part of the household survey, at least one, and usually two, Nunavut Justice policy staff visited each of the five communities where the survey was carried out to hold community meetings and conduct interviews and outreach activities. Outside the capital Iqaluit, there were public meetings in each community to explain the survey and solicit information about community and individual experiences within the existing family law system. Meetings were advertised on the radio or local cable, and a number of community leaders were contacted in advance with invitations to participate. Although attendance varied from community to community, we met with a wide range of individuals, including service providers and members of the general public, women and men, and people of differing age groups. (A partial list of participants is attached as Appendix 5.)

In each community we conducted one-on-one interviews with interested individuals who had particular experiences to share. Finally, we conducted a range of outreach activities in each community, including high school and college visits, announcements in local churches, and radio broadcasts. Depending on the context, we told people about the research, provided family law information, and solicited comments and feedback.

1.3.5   Interim Feedback from the Law Review Commissioners

As noted, family law has been identified as a priority area to ensure that the law is accessible to the Inuit majority and is consistent with IQ, the Inuit way of doing things. The Government of Nunavut established the Law Review Commission, a community-based group consisting of five commissioners from three regions, in 1999, to consult with communities and provide a comprehensive review of the territory's statutory framework in order to ensure that the laws are appropriate in their application to Inuit. In establishing the Commission, Premier Paul Okalik stated that its role was to overcome barriers in the laws as they affect Inuit. The commissioners have used a variety of strategies to look at the overall appropriateness of the law in a few key areas. The Commission has issued its first report on the changing of names.[3] In the past year and a half, family law has been a priority for the Commission. Among them, the commissioners will cover every community in Nunavut. This report will help provide a statistical background and analysis for their final report.

1.4   Overview of the Report

The main body of this report consists of four main sections:

  • an overview of context for family law;
  • a review of the results of the research programs with respect to substantive legal issues;
  • a review of the research around the legal process; and
  • conclusions.

In the first major section, several contextual factors that will inevitably affect the development of family law and family law-related programs in the territory are discussed. Factors include the territory's geography, demographics and several major social indicators, and political changes in the territory, including an emphasis on IQ and family life. The report also includes a brief discussion of justice issues in the territory: institutions, including the circuit court and community justice committees, and issues such as violence against women, which tends to dominate discussions about the justice system in Nunavut. A discussion of the legal context for the community-based research includes an overview of recent law reform in the territory and the custody and access reform process nationally. As noted above, northern readers may choose to skim this section, as most of it will be quite familiar.

The overview of the research results is broken down into two main parts: a review of substantive legal issues and a discussion of the research process.

In terms of the substantive issues, findings about the family unit include the size and largely multigenerational character of Nunavut families. The report discusses the two major ways in which people join families. First, it covers marriage and common-law unions (including the prevalence of these unions), prior relationships of participants, age on marriage and marriage expectations. Second, adoption (both customary adoption and conventional adoption) is considered separately, given its prevalence and the distinct legal regimes in place. The report goes on to consider relationship breakdown, looking again at its prevalence, the reasons for separations, and the special issues concerning temporary separations. Economic issues (spousal support and property) flowing from separation and divorce are discussed, with particular emphasis on matrimonial home issues in the context of the housing shortage. The next major section deals with issues affecting children. The first issue is family type: what are the dominant family structures in the territory? Second, in cases when parents separate or divorce, there is a review of the living arrangements of their children, the frequency and type of contact with non-residential parents, and issues of financial support for those children.

Questions about process, services and legal information make up the fourth section of the report. There are data regarding how people address issues affecting their children, and the prevalence and absence of agreements or court orders. A review of existing services, and the use of those services, provides insight into the real constraints on any reform model premised on the development of specialized services. There was a clear preference for certain types of services. Finally, a review of information about legal knowledge and legal information revealed significant knowledge gaps, a perception that family law information was important, and constructive approaches to public legal education.

The conclusions section attempts to integrate the findings from the research with the broader social context. A number of conclusions and recommendations are drawn. Some of these are aimed at the research: methodological considerations, areas for future research, and the advisability of doing more research, for example. Other conclusions and recommendations are directed toward possible areas for reform, including legislative change but particularly program and service development, including possible risks or concerns related to possible reforms.

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