Report on Family Law Research in Nunavut

2. CONTEXT

One of the principal reasons for this research report is that Nunavut represents a distinctive case in terms of the development of family law. It presents a unique political context, a vast geography, and an Aboriginal majority with a strong and distinctive culture. Nevertheless, the territory is situated within Canada and participates in many national institutions. Both local and national contexts have a powerful impact on the development and application of family law in Nunavut.

2.1   Profile of the Territory

2.1.1   Political Context

The Territory of Nunavut-an Inuit homeland within the Canadian federation-is the product of legislation[4]enacted pursuant to a Political Accord between the Tunngavik Federation of Nunavut and the Canadian and territorial governments. The new territory was established as an integral part of the formal resolution of outstanding Aboriginal claims of the Inuit in the Eastern Arctic and was referenced in the Nunavut Land Claims Agreement.[5] The settlement of the land claim in 1993 and the creation of the territory on April 1, 1999 was the result of an intense, long-standing, broadly based Inuit struggle to achieve self-determination.[6]

The new Government of Nunavut is attempting to achieve a unique balance. On the one hand, it is a public government; legislators are elected by and accountable to all citizens, and the institutions of government (legislative, executive and judiciary) are similar to those in the rest of Canada. The laws and regulations of Nunavut were "grandfathered" from the Northwest Territories on April 1, 1999: rather than having an unmanageable clean slate, incremental changes within the existing structure were anticipated. On the other hand, to reflect its unique history and the population base, there is a commitment on the part of the government that Inuit traditional knowledge or ways of doing things-known as Inuit Qaujimajatuqangit-will underlie the development of all social policy and institutions in the territory.[7] This political context will inform the development of family law policy and responses to the data set out in this report.

2.1.2   Geography

Nunavut is a territory that stretches over almost two million square kilometers (1,994,000 square kilometers). It makes up almost one fifth of Canada's land mass. More than half of the territory is above the Arctic Circle, experiencing a period of twenty-four hour darkness every winter and a period of twenty-four hour day light every summer. The vast majority of the population lives in 28 small communities scattered throughout the territory in three main regions. From east to west, the regions are Baffin Island, Kivalliq (also known as the Keewatin) and Kitikmeot.

The territory's geography has a major impact on the development of social services. The communities are extremely isolated, and can be reached only by air, boat or extremely arduous overland travel. This remoteness decreases the availability of services, considerably raises the cost of service delivery, and often makes it difficult for community members to feel as though they have input into the nature and development of local services. In the justice context, this alienation is sometimes typified by the fly-in circuit court.

Furthermore, small communities with close-knit social structures raise particular issues in legal and family law. Several reports have pointed to the importance of geography with regard to violence against women.[8] Victims of violence often report feeling that they have nowhere to go, which adds tremendously to their vulnerability. It is well known that disputes within a community tend to involve not just the immediate parties. Instead, extended families are often involved and may take sides, a serious problem in a community where anonymity is impossible and most of the necessities of life are obtained through personal relationships. Couples face intense scrutiny and their problems are likely to be known throughout the community. Among other effects, this social milieu can lead to significant pressure to remain in the relationship. Where a couple does break up, frequently one or both of them will be forced to leave the community and the support they might otherwise gain from their social network.

2.1.3   Population and Social Indicators

Statistics Canada estimates that Nunavut's total population in the year 2000 was 27,700. The population of Nunavut is different from the rest of Canada in several ways. Perhaps most significantly, the vast majority are Inuit, 83 percent in 1996 and increasing as a proportion of the population.[9] Inuit are one of the Aboriginal peoples of Canada, and most Inuit in Canada live within Nunavut's borders in the Canadian arctic.[10]

The strength and persistence of Inuit culture is often measured by the widespread use of indigenous languages, Inuktitut and Inuinaqtun. Inuktitut is the healthiest Aboriginal language in Canada: according to the 1996 census, in Nunavut 17,660 people (71.6 percent) speak Inuktitut as their mother tongue. Some 14,740 (59.8 percent) speak it as their home language and 19,595 (79.5 percent) of the population overall can speak Inuktitut. A significant portion of the population is unilingual in Inuktitut: 3,640 people (14.8 percent) speak neither English nor French.[11] The widespread use of Inuktitut and Inuinaqtun, and the significant unilingual population, has had a significant impact on the court system and the development of social services in the territory.

Another distinctive feature of Nunavut's population is the high proportion of youth. Nunavut has one of the youngest and fastest-growing populations of any province or territory in Canada. Almost half (48 percent) the population is under the age of 15, and 56 percent are 25 or younger. The relative youth of the population has a clear impact on the territory: a greater percentage of Nunavummiut are parents, households are larger and people become parents at a much younger age. These trends are discussed in more detail below.

The social realities facing Inuit are similar to those of Aboriginal peoples across Canada, and they are often very harsh. Poverty, low health status and housing shortages are all serious problems.

Inuit face much greater unemployment than the rest of Canada and very much more than non-Inuit in Nunavut. According to the Nunavut Labour Force Survey (1999), 28 percent of Inuit in Nunavut were unemployed compared to 2.7 percent of non-Inuit. Unemployment among Inuit men was slightly higher than unemployment among Inuit women (29.1 vs. 26.7 percent). In several of Nunavut's smaller communities, only 40 percent or less of the population was employed at the time of the survey.[12]

Serious health issues plague the Nunavut population and have a major effect on family functioning. It is very difficult to spend time in Nunavut without seeing the tragic reality behind a suicide rate six times the national average.[13] This staggering statistic is a clear indicator of serious mental health issues in communities. While Inuit remain physically healthy in many respects, too many people die from traumatic injuries[14] and substance addictions are a tremendous problem in most communities, leading to some of the strictest alcohol regulation in Canada. Most northern communities are dry or have controlled access to alcohol. As a result, the profile of alcohol use in the territory is strange: overall rates of alcohol consumption in Nunavut are notably lower than the Canadian average, 57.8 vs. 78.4 percent.[15] But, among those who drink, heavy alcohol consumption (more than five drinks when alcohol consumed) is much more common: 25.6 vs. 8.8 percent. Anecdotally, alcohol abuse is frequently cited as an aggravating factor in domestic violence incidents and a major cause of child welfare intervention in families.

There is widespread agreement that the lack of adequate and affordable housing is one of Nunavut's most pressing problems. The cost of housing in Nunavut is very high. Meanwhile, low individual and household incomes make it difficult for people to meet their housing needs without government support. Almost 60 percent of Nunavummiut live in public housing. Over 99 percent of tenants in public housing in the territory are Aboriginal, and over 96 percent of Nunavut households in core need are Aboriginal.[16]There are currently 3,579 public housing units in the Nunavut Territory,[17] but as of August 2000, the waiting list consisted of about 1,100[18] families in Nunavut waiting for some form of housing assistance. Additionally, with 2,579[19]youth between the ages of 14 and18, it is anticipated that the potential demand for housing will increase by about 260 homes per year over the next five years.

2.2   Inuit Qaujimajatuqangit (IQ) and Inuit Families

In its first comprehensive policy statement, the Bathurst Mandate, the Government of Nunavut's cabinet set out the principle that "Inuit Qaujimajatuqangit will provide the context in which we develop an open, responsive and accountable government."[20] It is often argued that the failure of many social programs arose out of a mismatch between imposed southern-designed programs and the Inuit way of life.

Asserting the importance of IQ does not deny the significance of diversity among Inuit, both historically and today. There is considerable regional diversity; age, sex, religion, social position and language all considerably affect an individual's experience of, and participation in, Inuit culture. It is frequently observed that every community is different, and each has its own history, issues, goals and resources. Failure to take into account this diversity has been another major problem in the development of social programs. This problem has been exacerbated by a social science perspective-particularly marked in legal studies-that has characterized Inuit social structure as "simple" or even "anarchic" because it did not mirror Western-type institutions of government.[21] Those same social scientists looking at Inuit life had a tendency to overlook the central role of family dynamics in maintaining order and well-being. Externally imposed policy planning tended to reproduce the assumptions of the social scientists over community input.

Risking a generalization, however, it can be argued that the family has been one of the most important pillars of Inuit life. Until the mid-20th century, Inuit lived on the land in extended family groups. One or two families would travel, gather and hunt together throughout the year. In the summer a few families might gather together. The nomadic history of Inuit, and in particular the significance of family in that history, is reflected in community life today. In all but the largest communities, the whole population will be made up of a handful of families, and there is often strong solidarity among members of a single family. Ila-, the root of the term for extended family, ilagiit, means "part of," or "on my side, not an enemy."[22] Where there is a strong disagreement, social pressure can affect access to services and opportunities and overall respect in the community. A person may find themselves avoiding the local Co-op (store) or a particular adult education program in order to avoid meeting their spouse's family members; family members of someone "acting inappropriately" may feel at risk of reprisals if they work for a relative of a person perceived to have been wronged.

The community of Chesterfield Inlet is a clear example of the overlap between family and community. One element of our research for this report was a community meeting in each place we carried out our survey. During the meeting in Chesterfield Inlet it quickly became evident that the entire community was, in fact, one family. Everyone was descended from or married to a descendant of one couple. There were five generations of that family in the community. One of the older community members declared towards the end of the meeting that the chance to talk about family law was a chance to address problems in all kinds of relationships within the community as a whole.

The view that family breakdowns are inextricably entwined with a range of other social issues was a constant message in all of our interviews and meetings. This was often reflected in survey responses as well. The overlap is also recognized in the Bathurst Mandate policy statement, which envisions Nunavut in 2020 as a place where:

Self assured, caring communities respond to the needs of individuals and families; and where the raising and teaching of children and the care of those in need, 'Ilagiinniq' (kinship) and 'Inuuqatigiinniq' (community kinship), is a collective community process.[23]

An approach to family law that attempts to address issues of support, custody or property in isolation from the lives of the individuals, the unique Inuit extended family structure and the larger community issues is likely to be inconsistent with Inuit Qaujimajatuqangit and therefore less effective.

Within families, Inuit have clear traditions around child-rearing, the roles and responsibilities of family and extended family members, relationship difficulties and even violence.[24] When possible, these traditions are noted in this report in discussions of the results of our research. In particular, we considered the active role of the extended family in child-rearing. The most common expression of this is the tradition of custom adoption. There are also a number of less formal arrangements for child care that are followed on a regular basis among family members. Another important issue is the centrality of parents in decisions about marriage and marital breakdown.

Overall, it is clear from the research, as well as the content and conclusions of this report, that there is a need for further exploration of Inuit Qaujimajatuqangit as related to family law. The research suggests there is a need to systematically explore these issues with both elders and interested community members.

2.3   The Justice System in Nunavut

2.3.1   Unified Court, Circuit Court and Family Law

Nunavut represents a unique development in the Canadian justice system because it is the first territory to adopt a unified or single-level trial court structure. As of April 1, 1999, the powers, duties and functions formerly exercised by the NWT courts, judges and justices of the peace are vested in the Nunavut Court of Justice.[25] As noted above, the Nunavut Court of Justice operates on a fly-in basis as a circuit court. Except for Iqaluit, the only access to adjudication is a visit to each community every three to six months by a circuit court, which includes a justice from the Nunavut Court of Justice, lawyers, interpreters and other court officials. There are numerous narrative accounts of the circuit court's activities, particularly from its early days,[26] that draw dramatic attention to the alien nature of the process at the community level.

For family matters, there have been additional systemic problems with the court system. These problems have been documented in numerous sources, including The Justice House: Report of the Special Advisor on Gender Equality,[27]Report of the Family Law Working Group for NWT,[28]and Options for Court Structures in Nunavut.[29] Without exception, these reports have been critical of the lack of access to justice in the family law area under the existing court structures.

The shortcomings of the justice system have various sources, many of them beyond the control of any individual. Perhaps the single most important factor accounting for the lack of access to family justice is the extent to which criminal law has been the major justice priority in Nunavut.[30] This prioritization clearly reflects both the reality of extensive reporting of crime in the territory and acute community concern about both crime and the justice system's response to it. However, this focus on criminal justice results in a number of problems that adversely impact the family law system.

There is an acute shortage of family lawyers. At this time, there is one full-time family lawyer employed by Legal Services Board. It is hoped that two more positions for family lawyers will be filled. No private lawyer in Nunavut is doing a significant amount of family law work. Aside from these two staff lawyers, Nunavummiut are forced to rely on legal representation from the NWT or, occasionally, from a province. Those services would be prohibitively expensive for individuals for any contested matter requiring a trial in Nunavut. In terms of community-level resources, courtworkers (working in many but not all Nunavut communities) have not yet been trained in family law. Justices of the Peace do not handle family law matters.

The circuit court structure has aggravated the difficulties in providing family justice services. Family matters have consistently been left as the last items on crowded dockets, addressed only when and if the criminal docket has been completed. Lawyers on circuit are extremely busy, especially while in the community, as they often meet their clients for the first time the same day they are to represent them. Few, if any, of the lawyers travelling with the court practice family law, which means that people with family law disputes are unable to get legal advice in their communities. Support enforcement activities, when they occurred in the past, were handled by the Crown prosecutors.

We learned in our community visits that very few people in Nunavut's communities see the visiting court as a place to address family law issues. This perception is clearly reflected in practice. In 1992, according to Katherine Peterson, Special Advisor on Gender Equality in the NWT, outside Iqaluit only 10 women in the Eastern Arctic had a child support order registered with the Northwest Territories Maintenance Enforcement Program (MEP).[31] In the last nine years, there has been a considerable improvement and about 81 recipients overall, 65 of them outside of Iqaluit, currently have orders with Nunavut's program.[32] However, as our research will show, this still represents far fewer than 10 percent of those who might be entitled to receive support.

The unified court structure has the potential to considerably simplify family law matters. Custody, access, support, property and child welfare matters will all be heard in the same court. In cases of domestic violence, the same court will also be responsible for trying criminal prosecutions of offenders, making it harder to overlook violence when there have been criminal charges. Young offenders will also be tried in this court when diversion programs are unavailable or inappropriate. This combined jurisdiction may be advantageous if it simplifies questions of jurisdiction and focusses attention on issues of power and safety in family law cases that overlap with the criminal justice system. However, it is important to develop rules of court and support structures for litigants so they are able to maintain the accessibility of the inferior court in what is now a more complex superior court. Above all, there is a real risk that family law will continue to experience a low priority relative to the overwhelming demands of the criminal justice system. Finally, it should be noted that this unified court will not include the social services that are sometimes associated with unified family courts in southern Canada.

2.3.2   Rise of Community Justice

Alongside the court structure, a key emphasis within the justice system in Nunavut is the development of community justice initiatives.[33] Almost every community has a Community Justice Committee ("CJC"), although there are considerable differences between communities in terms of CJC resources, histories and aspirations. CJCs are mandated to work toward reconciliation and healing when a crime has been committed (and in some communities, when individuals or couples contact them of their own initiative). Their primary tool is counselling, either one-on-one (often including an elder) or as a family group.

The CJC is made up of volunteers who meet regularly to work towards developing alternatives to the existing court system. Most of the caseload is made up of offenders who are referred by the Royal Canadian Mounted Police and, occasionally, the Crown attorneys. CJCs receive support from Justice Nunavut and Justice Canada. They are in the process of negotiating diversion protocols with the RCMP, the Crown and Nunavut Justice on a community-by-community basis.

Other community-based justice initiatives include the recruitment and training of a larger number of justices of the peace (89 in Nunavut in 1996),[34] strengthening the community constable program (right now 22 community constables serve 15 Nunavut communities), and an array of crime prevention activities. Currently, social workers supervise probation, although efforts are being made to develop community supervision separate from social services in each community.

A crucial issue is how family law services can be developed that are harmonious with these efforts and without overburdening overstretched resources. It may be that at some future date, the potential role of justices of the peace or community justice committees in delivering some of the services discussed below should be further explored. However, it cannot immediately be assumed that CJCs or JPs will be the appropriate groups to handle this work.

2.3.3   Violence, Families and the Police

Nunavut has a well-documented problem with violent crime, and there are numerous useful reports about violence in general and violence against women in particular.[35]

It is clear that violence is not a new phenomenon in the North. Several traditional Inuit stories deplore the plight of victims of violence. According to one story, the narwhal (a marine mammal depicted now on Nunavut's coat of arms) is actually a victim of violence who fled up a cliff to avoid her abuser. When it appeared he would catch her, she twisted her hair into a long plait, and lowered herself over the cliff into the sea. The famous horn of the narwhal is a remnant of her twisted hair; the mottled white skin of the narwhal is said to be marked with her bruises.

In 1996, the Northwest Territories had the highest levels of violent crime in Canada; the Canadian Centre for Justice Statistics reported an assault rate 560 percent above the national average, and a sexual assault rate 730 percent of the national average.[36] Canadian statistics on Aboriginal peoples also suggest that violence against Aboriginal women is far more prevalent than against non-Aboriginals. Eight percent of non-Aboriginal women reported experiencing spousal violence in the past 5 years compared to 25 percent of Aboriginal women.[37] The statistical difference of spousal violence against non-Aboriginal and Aboriginal men is less significant at 7 percent and 12 percent respectively.

Despite considerable anecdotal evidence of the prevalence of sexual assault in some Nunavut communities,[38] at least one report finds a clear history of "predominantly low levels of reporting, founding and clearance rates for sexual assaults."[39] Not only are relatively few charges laid, but relatively few of those charges are resolved by clearance, conviction or other processes. Perhaps because of this, and in spite of a very high overall conviction rate in the territories,[40] there is a strong perception, especially among women's advocacy groups, that sexual assault and violence against women are not taken seriously in the territorial justice system.[41] The most widely based crime statistics at this time do not reflect whether assaults are part of a domestic incident, nor do they cite characteristics of victims, including their gender. However, it is clear that the largest number of charges are laid against adult men, and anecdotal reports suggest that there are a large number of cases of domestic violence in Nunavut.

It is also notable that smaller communities, such as Chesterfield Inlet, Whale Cove, Grise Fjord, Hall Beach, Repulse Bay and Umingmaktok have significantly lower levels of reported crime. There are a number of explanations for this pattern. Informal social control may be tighter in those communities, there may also be lower levels of reporting, in part because in several of those communities there is no resident RCMP officer.

Issues of violence underlie much of the debate about family law in the territory, and will be discussed in the several sections of the research report as well.

2.3.4   Child Welfare and State Involvement with Parenting

Family law governing separation and divorce also operates in the shadow of child welfare law. While this is the case across Canada, in the North the overlap is particularly active. The [42] To the extent that people see family law as a phenomenon distinct from criminal law, it is often associated with the process of removing children from the family home.

There are numerous explanations for the high rates of children in care. The experience of Inuit parents is part of a larger pattern of Aboriginal children being removed from their families and communities. As many sources have pointed out, the widespread past removal of children has serious intergenerational effects, as many adults have limited or bad experience with being parented, making their own parenthood a challenge.[43] Furthermore, although residential schools were not as pervasive in the Eastern Arctic as in the rest of Canada, and people had different experiences there, a significant number of residential school survivors make a connection between their experience of being removed from the family in order to study and their lack of confidence in their own parenting skills and a loss of skills. These factors may have a serious effect on parents' ability to assert that their care is in the best interests of the child.

2.3.5   Family Law Reform: The Territorial and National Picture

Legal jurisdiction over family law in Nunavut is divided between the federal and territorial governments. The federal government has jurisdiction over marriage and divorce under s.91 (26) of the Constitution; the territorial government also has broad family law power under the Nunavut Act, consistent with provincial powers over family law. The territorial government regulates custody, access, support and property division except in the context of a divorce action. The territorial government also regulates child welfare, adoption and guardianship. Over the past several years, both levels of government have been proceeding with a reform process.

2.3.4.1   The Territorial Process

After an extensive period of review, spearheaded by the Ministerial Working Group on Family Law Reform,[44]the Government of the Northwest Territories rewrote its family law in a sweeping series of enactments. In 1994, the first piece of legislation, the Aboriginal Custom Adoption Act[45] was passed, which creates a system of community based custom adoption commissioners who formalize adoptions carried out in accordance with customary law (see discussion of adoptions, below). The next major wave of legislation came into force in 1998, with the enactment of the Children's Law Act,[46] the Family Law Act,[47] the Child and Family Services Act[48] and the Adoption Act,[49] which governs private adoptions in the court. Only one piece of family law legislation was largely unaffected by these changes, the Maintenance Orders Enforcement Act,[50] which provides authority for the Director of the Maintenance Enforcement to enforce support orders and agreements.

The Children's Law Act addresses most major legal issues relating to children in "private" family law. It provides for children's equal rights regardless of parentage or any question of legitimacy. It deals with proof of paternity, when contested. It provides for guardianship of children and their property. The statute governs child support, establishes an obligation for parents to support their children, and mandates application of the Federal Child Support Guidelines by the court. It permits "parental agreements" as well as other types of domestic contracts, which can be overridden by the court in the best interests of the child.

The Children's Law Act also governs custody of and access to children. Both parents are presumed to have an equal entitlement to custody unless there is some intervening event. A person entitled to custody has "all the rights and responsibilities of a parent," including the authority to act for and on behalf of a child. If more than one person has custody, either can exercise the rights and accept the responsibilities of a parent. The legislation provides that the entitlement to exercise custody and the incidents of custody are "suspended", subject to court order or agreement, if the parents live separate and apart. This suspension takes place upon the consent or the acquiescence of the non-resident parent. The entitlement to access is not suspended in this situation. Access includes visitation and information about the child's health, education and welfare.

Any person can apply for custody, but non-parents require leave of the court. When there is an application for custody or access, any determination shall be made "in accordance with the best interests of the child, with recognition that differing cultural values and practices must be respected in that determination."[51] There is an extensive list of considerations that must be taken into account in considering the needs and circumstances of the child. The court is also required to consider "any evidence" of violence by a person claiming custody or access, when that violence is against a spouse, former spouse, child or household or family member, and to consider the effects or possible effects of that conduct on the child. The court is prohibited from considering parents' economic circumstances, and the requirement that evidence about past conduct be relevant to the ability to parent is explicit. The court has the power to make an order concerning custody, access, or any incident thereof.

There are a range of other provisions concerning custody and access, including the court's power to order supervised access, the power to appoint a custody or access "assessor", and access enforcement provisions for both custodial and access parents. There are also limits on the power of the court in cases of inter-jurisdictional custody disputes, and provisions for the registration of orders.

The Family Law Act provides for enforceable domestic contracts and for other consequences of relationship breakdown, subject to the best interests of the child. This Act represents a considerable change from its predecessor legislation. It provides for identical rights for separating couples, regardless of whether they were married or in a common-law relationship prior to separation. Common-law relationships are defined in terms of two years of cohabitation, or cohabitation of some permanence with a child. It provides for spousal support on a basis of equitable sharing of the advantages and disadvantages of the spousal relationship, recognition of both spouses' contribution to the relationship, and recognition of the impact of custody of the children on a spouse's earning capacity and career development. It provides a broad definition of family property, and provision for equalization of net family property between the spouses. Family home provisions address ownership and possession issues. The statute also provides for court-ordered mediation and restraining orders.

An application for divorce automatically stays any proceeding commenced under the Children's Law Act or the Family Law Act. Parties can apply to the court to continue a proceeding separately from the divorce proceeding.

2.3.4.2   The National Context

Nationally, since the enactment and implementation of the Federal Child Support Guidelines, public concern has turned increasingly to the question of justice system responses to custody and access disputes between separating parents. This problem has received serious study in many jurisdictions. In December 1997, the Government of Canada established the Special Joint Committee on Child Custody and Access. That committee conducted research and public consultations to analyze custody and access issues, and to look for better ways to promote positive outcomes for children. The public consultations, and the subsequent report, For the Sake of the Children,[52] galvanized significant consensus about the need for change at the same time as it revealed widely divergent views on what changes are necessary. The Government of Canada has committed itself to some reform of the Divorce Act.[53]

Throughout the system there is widespread recognition that children do not see family break-up in terms of legal regimes, but as a complicated experience of turmoil, uncertainty and instability. Legal reforms without measures responding directly to their social and emotional needs will clearly be inadequate. Effective measures to support divorcing families and ensure that children's interests are protected require community support and collaboration among a variety of disciplines. It also requires cooperation between governments, in light of the divided jurisdiction over family law.

In response to this mounting public debate, a decision was taken to undertake a federal-provincial-territorial (FPT) project to conduct multidisciplinary research and consultation to:

  • identify custody and access issues that arise before, during and after family disputes;
  • identify options for reforms to legislation and services;
  • promote the development of integrated, multi-sectoral services to respond to the range of children's needs; and
  • develop a strategy to implement these reforms and services.

The existing FPT Family Law Committee, a long-standing policy body, was assigned responsibility for the project. The Committee, made up of family law policy advisors from the federal government and each province and territory, developed a statement of principles and objectives on custody and access reform.[54] The primary objective of the project is to support custody and access arrangements that promote the best interests of children. In light of that objective, reforms should:

  • reduce parental and extended family conflict and litigation;
  • support positive relationships between children, their parents, and the extended family;
  • when required, protect children from the negative consequences of high conflict and violence.

This report forms part of the background for this joint process. As noted above, with the creation of the new Nunavut territorial government, it was determined that a key priority for family law (along with establishment of a new Maintenance Enforcement Office) was to conduct research, in the form of a needs assessment, concerning family law information and services in the territory. This research also provided an early opportunity to assess recent territorial legislation already in force.

It was the view of the Nunavut Department of Justice that it would be premature to address the issue of custody and access in isolation from other family law issues. At this point, there is relatively little community-level discussion about family law, and an overly technical investigation of custody and access alone would likely have created frustration among those who wish to participate in the development of family law in the territory. As there has been relatively little research of this type in the territories, the Nunavut Department of Justice was eager to use this opportunity to gather information about the full spectrum of family law issues in an effort to refine its own priorities. The Department of Justice Canada supported this approach.

This research should contribute to the FPT process as the only paper focussing on potentially unique family justice needs in the territories. In particular, our reported research will assist in the development of planned custody and access consultations taking place in Nunavut during 2001. In Nunavut, community-level consultation is being carried out by the Law Review Commission, Maligarnit Qimirrujiit (MQ). Over the spring, the five commissioners will be visiting at least half of Nunavut's communities to conduct consultations on custody and access as well as broader family law issues. In addition, custody and access consultations will be carried out with an expanded Nunavut Family Law Working Group, which includes the two Nunavut lawyers practicing in the field, representatives of the judiciary, the Director of Adoptions, the Director of Child Welfare, the Maintenance Enforcement Director with Iqaluit Social Services, and representation from Nunavut Social Development Council and a number of social workers. The MQ Commissioners will also participate in these centralized consultations.

2.4   Summary of the Context

There are a number of crucial contextual questions that shape family life and, in turn, family law in Nunavut. Perhaps most important is: what is the relationship between Inuit Qaujimajatuqangit and the family patterns that are reflected in the research results? Similarly, to what extent do existing legal principles and services appear to be consistent with IQ?

These fundamental questions may be broken down in terms of the areas covered in this section. First, the physical context dominates life-and service delivery issues-in Nunavut. The distribution of the population into small, isolated and close-knit communities is a fundamental social fact underlying both the ways of individual and family life and public sector activity. In seeking to answer questions about why certain patterns exist and how to address social needs, it is essential to keep the community context in mind.

Other aspects of social context that require close attention are the serious social issues that confront Nunavummiut. The growing population and high proportion of youth will have a major impact on family formation. A number of serious social problems may contribute to and complicate family breakdown. Unemployment, lack of housing, generalized poverty and serious health issues, including depression, suicide and addictions, are widely identified as problems facing Nunavummiut, but their direct and indirect effects on family life and family law have not been adequately examined. One social problem is clearly linked to family law: the prevalence of violence against women. To date, however, the primary response to this problem has been criminalization. It is a serious challenge for family law to develop civil law responses to violence that will focus on moving forward, in a constructive way, from the harm of abusive relationships.

The existing court system, particularly the circuit court, is often criticized for failure to meet family law needs. However, recent changes, including a unified court structure and strengthened community justice institutions such as Justices of the Peace and Community Justice Committees, may create some room to improve the accessibility of the system. There have also been significant changes to family law legislation, including simplified recognition of custom adoption, vastly expanded rights for common-law partners, a better defined role for domestic contracts and significant clarification of custody and access law and factors relevant to the "best interests of the child". In light of potential reform in federal legislation governing divorce, and the joint consultation process, it is important to consider what, if anything, is the potential impact of the evolving legislative framework; whether changes have or should have an impact on services at the territorial and community levels; and the extent of common knowledge about the court system.

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