Report on Family Law Research in Nunavut

3. RESEARCH RESULTS: MAIN ISSUES (cont'd)

3.4 Break-Ups in Nunavut

It is hard to assess the rate or number of break-ups in Nunavut. Our sample size was too small to provide a statistically meaningful report on these issues. The number of people who said they were separated or divorced was an overall minority, which restricts our ability to confidently describe broad trends within this population. Also, as noted above, people seemed quite reluctant to discuss prior relationships, depriving us of an important secondary source of information. However, this area was an important focus for some of our qualitative work. Community meetings and individual discussions provided useful information about perceptions of break-ups.

3.4.1 Extent of Separation and Divorce

In our survey, out of 151 people who were ever married, 14 reported being separated (about 4 percent), and 12 reported being divorced (again, about 4 percent). Similarly, 16 (5 percent) reported that they had been widowed. It was harder to determine the number of cases of people separating after a common-law relationship. Far more people reported ever having lived in a common-law relationship than reported living in one currently: 63 percent (215 respondents) vs. 37 percent (126 respondents). However, a much smaller number of people in common-law relationships (only 15) actually reported being separated, and answered the related questions in the survey.

These statistics from our household survey are roughly comparable with 1996 census data for the region, which showed that 3 percent of people over age 15 were divorced, and 3 percent separated.[76] The census data showed 3.4 percent of those persons were widows. By contrast, 1996 census data for Canada, also among people older than 15, show lower levels of separation and higher levels of divorce. Some 589,000 (3.0 percent) of people Canada-wide reported that they were separated, and 1,171 (7.2 percent) reported that they were divorced. About 6 percent reported that they were widowed: 1,422,000 (6.4 percent).[77] Researchers at Statistics Canada also encountered difficulties tracking separations after common-law relationships in the national studies.

Two things are immediately notable when Canadian and Nunavut figures are compared. First, there appear to be fewer separations overall in Nunavut. Second, of those who have separated, fewer people in Nunavut actually obtain a divorce. This trend is consistent with the many reports of problems with access to the justice system for family law matters.

3.4.2 Temporary Separation

We also asked about people who had separated and got back together. There was considerable reluctance to discuss this matter. Among our married respondents, 60 percent of respondents did not answer these questions. Of those who did answer the questions, 15 said they had separated and then got back together with their spouse, and 34 said they had never separated. Seven of those who had experienced a temporary separation said they had separated on more than one occasion. Although we asked, we received very few answers about why people had got back together.

We heard from the people operating domestic violence shelters and from other social service providers that temporary separations are quite common. Often, and especially when violence is involved, separation will mean leaving the home community in order to find space or safety. At times, these departures will involve the assistance of social service providers because there is no way for a woman, or a woman and children, to afford to leave the community-and there are only three shelters in all of Nunavut. Social service providers attribute the reunification of families after temporary separations to a number of factors: real and often unforeseen obstacles in setting up a new life without the partner, love, a perception that children need the other parent, and loneliness, exacerbated because the separation may mean not only leaving your spouse but also the community and extended family support network.

Temporary separations in cases of violence have a place in the unikkaaqtuaq (traditional stories or fables) told by elders. One story tells of a woman, made desperate by repeated abuse and unable to have a child, who finally left her husband and went out into the snow to call for the moon to come and get her. The moon arrived on a dogsled and took her into the sky. She saw the sun-a burning, tattooed woman-and the stars. She lived with the taqqiq, the moon, and had a son. After a time, homesickness and pity for her husband made her insist on returning home. The sled took her back home, with instructions not to eat meat or burn oil made from blubber for a year after her return. Her pot and qulliq (oil lamp) would always be full. The woman returned to her husband, who was overjoyed to have her back. However, before the year was out he became angry because she would not eat his meat or use blubber for oil, so he began to beat her again. She tried to ignore him, but when she got fed up with being beaten, she had a tiny bite of the meat. After that, her son died from her breast milk, and her pot and qulliq would no longer fill up. The story ends "Aittaa, how sad."[78]

3.4.3 Reasons for Separation and Divorce

Of the 40 people in our survey who acknowledged being separated or divorced, a small number (16) responded to our questions about reasons for divorce or separation. Five people reported that their relationship had ended because they grew apart from their spouse. Four reported that substance abuse had been a factor, and four reported that their partner had been involved with someone else. One person identified violence as a factor.

Although these numbers cannot be taken as representative of the general population, they do provide an interesting contrast to the common perception in Nunavut that the main reason for marital breakdown is violence, and in particular, violence against women. Clearly, domestic violence is a significant problem in Nunavut. Comparisons with other data suggest it is seriously under-reported in our survey.[79] It is an important family law priority to make sure that the law protects and provides recourse for victims of violence. It is very important that service development is sensitive to the particular needs of survivors of violence, and that they do not, unintentionally, lead to re-victimization.

That said, almost all public discussion about relationship breakdown is concentrated on cases of violence. There may be a number of reasons why. The absence of public discussion about marital breakdown in non-violent situations may reflect an implicit social judgement that separation is unacceptable except in very extreme circumstances. Certainly many community members expressed the view that presently far too many relationships end, and that the prevalence of marital breakdown is an important social problem. Violence may also be a focus of family law discussions because the dominant public perception of "law" or the justice system equates it with the criminal justice system. There may well be an underlying sense that the only appropriate place for legal intervention in families is in cases where a crime has been committed between the parties.

However, even the patchy results of our survey strongly suggest that not all relationships end because of violence. This, too, has important implications in terms of services. With the exception of maintenance enforcement, most services that deal with marital breakdown also address problems of violence, including shelters and transition houses in a few communities, criminal prosecutions of assailants, and peace bonds and restraining orders. Even if these services are considerably improved, they will not meet the full range of need for separating couples, let alone lone parents. Whether or not violence has occurred in the relationship, practical issues must be addressed, such as the responsibility of caring for and supporting children, equitable division of property, and financial support for spouses who have been financially disadvantaged by the relationship. Services designed primarily to promote safety for women and children and accountability for offenders cannot be expected to fulfil all the needs of separated parents and their children.

3.5 Property and Support Issues between Spouses

We asked a number of questions intended to elicit information about the relative finances of married and common-law couples, and arrangements for support or other transfers on separation.

3.5.1 Payment of Spousal Support

In our survey, very few persons who were divorced or separated reported paying or receiving support, regardless of whether they had been married or common law. There was a difference between the responses of those who were divorced as opposed to those who had separated from a common-law relationship. However, the sample size is too small to be reliable. Most divorced people did not answer the question (8 of 12); of those who did, two said they had paid or received support, and two said they had not. A larger number of those who had separated from a common-law relationship answered (12 of 15). Of those, 11 had not paid or received support and one had paid or received support.

The low response rates and the limited number of cases in which support was paid or received were consistent with our expectations. A number of factors led us to predict there would be few cases in which support was being paid or received. Lack of legal information and the relative equality of income are both relevant.

3.5.2 Knowledge of Legal Rights

In the household survey, we asked about a number of legal rights, including rights to support and property. Due to a problem with survey design, only people who had used services (a social worker, church group, or lawyer, for example), answered the questions about legal information (31). We asked about the right to apply to the court for a division of property. Of those who responded, 19 said they knew about the right. About two thirds of those who responded (22 of 31) thought this was important legal knowledge. When asked, almost every respondent said the right to apply for a division of property was important for reasons related to equality and fairness between people who were married or living common law. A handful people said they viewed the right as an important means to achieve equality, a "way to get what belonged to you" after separation, or to establish rules for an income provider after family breakdown.

Notably fewer respondents (16 of 31) said that they knew persons in common-law relationships could apply to court for support. Eleven said they did not know. More than 80 percent (26 of 31) said they thought this was important knowledge for people to have. People listed a range of reasons why they thought it was important. Most gave reasons relating to the well-being of children. A few saw this as a way of meeting the needs of a common-law partner after divorce and of addressing hardship. One or two people offered a rationale related to fairness. Two people thought the information was important simply because it was not well known and people should know their rights.

In general, from meetings and personal interviews, we found there was very little understanding of the law or underlying concept of spousal support at the community level. If anything, the survey would appear to overstate the level of familiarity with the law. Most people in the community meetings, including community leaders, seemed unfamiliar with the term "spousal support" or with the principle that marital property should be divided to reflect equal contribution during the relationship.

Nonetheless, in our meetings, people expressed agreement with the notion that a marriage or a common-law relationship is, among other things, an economic partnership, and that equal sharing within the relationship is appropriate. Certainly some of the literature suggests that equal sharing and recognition of equal contribution from both spouses is consistent with IQ.[80] A well-known image for marriage in Inuit culture is that spouses make up the two wings of a bird; it cannot fly without the contribution of each and a balance between them.[81] There is a strong norm of interdependence in traditional Inuit life, and this appears to be highly valued today.

3.5.3 Relative Income

Another factor with a clear effect on spousal support, and very likely a connection with the low levels of support paid or received, is the relatively low income disparity between men and women in Nunavut, and the relatively low overall income of a significant proportion of Nunavummiut.

Approximately 20 percent of respondents among both common-law and married couples reported that their partner earned "about the same" as they did. Just over 35 percent of respondents in both married and common-law couples reported an extreme difference in income, a relationship in which their partner earned much more or much less than they did (see Table 13). Although it is risky to generalize based on the small sample size, it appears that more married women than those in common-law relationships have incomes either much higher or much lower than their partners. Overall, as in the rest of Canada, a larger proportion of women than men, in both types of relationships, reported earning less than their partners.

Table 13:
Distribution of Respondents by Reported Relative Income, by Gender
Partner earns Married and notseparated, divorced or widowed
Female Male Total respondents Total sample
Much less than self 10
19%
3
8%
13
15%

10%
A bit less than self 2
4%
8
22%
10
11%

7%
About the same as self 13
25%
6
17%
19
22%

14%
A bit more than self 8
15%
10
28%
18
21%

13%
Much more than self 15
29%
8
22%
23
26%

17%
Don't know 4
8%
1
3%
5
6%

3.7%
Missing data - - - 47
34.8%
Totals 52
100%
36
100%
88
100%
135
100%

Partner earns. Currently common law
Female Male Total respondents Total sample
Much less than self 14
29%
11
29%
25
35%

29%
A bit less than self 4
8%
5
13%
9
13%

10%
About the same as self 10
20%
7
18%
17
24%

20%
A bit more than self 7
14%
6
16%
13
18%

15%
Much less than self 6
12%
2
5%
8
11%

9%
Don't know 1
2%
1
3%
2
3%

2%
Missing data - - - 13
15%
Totals 49
100%
38
100%
71
100%
87
100%

Note: The data are non-cumulative.

These results are considerably different from southern Canadian norms, where the wage gap between women and men is more pronounced. Statistics Canada reported, as of 1998, that women earn 64.4 percent of what men do.[82] Furthermore, in southern Canada the gap between women and men also plays itself out in the income distribution between married and common-law couples.

However, the results are less surprising in light of the relative employment (and education) rates of women and men in Nunavut. At least one study suggests that Inuit women are making the adjustment to wage economies more easily than male partners, and that women have been doing better, especially in better paid government and office jobs.[83]

Further, the overall level of poverty among the Inuit majority and the patchwork nature of many Nunavummiut's economic strategies (a minority of people receive wages for full-time employment, almost as many receive income support, and about a fifth report multiple sources of income; see Table 14) may be factors that explain the relative lack of income disparity between the sexes and between different types of relationships.

Table 14:
Distribution of Respondents' Income By Source
Source of income Female Male Total
Full-time wages 55
30%
51
35%
106
32%
Part-time wages 30
16%
21
14%
51
15%
Income support 40
22%
34
23%
74
22%
Family members 20
11%
5
3%
25
8%
Traditional activities 4
2%
9
6%
13
4%
Part-time and income support 7
4%
2
1%
9
3%
Part-time and traditional activities 5
3%
4
3%
9
3%
Full-time and traditional activities 2
1%
  2
1%
Traditional activities and income support 5
3%
7
5%
12
4%
Other (including "not working") 16
9%
15
10%
31
9%
Totals 184
100%
148
100%
332
100%

Finally, the extended family household composition may tend to shift the focus of wage comparisons between the two individuals in a conjugal relationship. The presence in the household of other wage-earning or child-rearing adults is likely to have a profound effect on the resources of the family as a whole.

In summary, our research shows that relatively few people pay or receive spousal support in Nunavut. Nevertheless, there appeared to be strong community support for laws providing for support and division of property as a matter of fairness and as an important resource for children. Limited support claims certainly reflect a general lack of knowledge about rights to spousal support or division of property. As well, and as discussed below, there are clear issues concerning access to the courts. However, the scarcity of support claims may also reflect broader social factors, regardless of the rights of married and common-law spouses on breakdown. In particular, there are unlikely to be significant transfers between spouses in the majority of cases when there are relatively low income disparities between spouses and relatively low incomes. As Nunavut changes in the years ahead-particularly with the development of a larger Inuit middle class (or elite)-it is likely that this right will become more important. At this point, it does not appear to be a priority concern in family law.

3.6 Matrimonial Home

In situations where income levels are low, typically the major economic issue in family breakdown is the disposition of the matrimonial home. For many families, the home will be the only real asset and will take the place of any other property settlement.

Nunavut and the Northwest Territories have established the broadest property rights of any jurisdiction in Canada for common-law spouses, providing the same rights as for married persons in terms of occupancy and ownership of the matrimonial home. Nevertheless, some notable differences stand out against a background of similarity) in the patterns of home ownership between common-law and married couples. By far the largest percentages of both groups rent their homes (three-quarters of respondents reported living in rented housing). This is not surprising, as most of the 60 percent of Nunavummiut living in public housing live in rental housing (with the exception of about 500 "access units" for which mortgage payments are geared to income). However, among our respondents, slightly more married people lived in houses they owned (approximately 20 percent of married persons compared to 15 percent of common-law couples). A more significant difference was that a considerable number of common-law respondents (about 7 percent) reported living in someone else's house (see Table 15). Overall in Nunavut the rates of home ownership are less than half the national average. Census Canada reports that nationally 64.5 percent of householders report owning their own home (with and without a mortgage), while 36 percent rent.[84]

Table 15:
Distribution of Respondents' Housing Type by Type of Union and by Gender
Housing Type Currently married, not separated, divorced or widowed
Female Male Total respondents Total sample
Owned 13
26%
8
26%
21
26%

16%
Rental 34
68%
23
74%
57
70%

42%
Other person's house
-

-

-

-
Other 3
6%
0 3
4%
2%
Missing
-

-

-
54
40%
Totals 50
100%
31
100%
81
100%
135
100%

HousingType Currently common law
Female Male Total respondents Percent total sample
Owned 5
10%
8
22%
13
15%

15%
Rental 42
88%
22
60%
64
75%

74%
Other person's house 1
2%
5
14%
6
6%

7%
Other   2
2%
2
2%

2%
Missing
-

-

-
2
2%
Totals 49
100%
38
100%
85
100%
87
100%

Note: These figures are non-cumulative.

In this context, while it is necessary to provide a mechanism for equitable division of the marital interest in the home and protect against inappropriate dispositions, the majority of Nunavummiut are affected far more directly by the law concerning possession of the home. Significantly, the family home provisions of the new Family Law Act[85] apply to rental and public housing in the territory. There is a right to apply to a court for exclusive possession of the home. Factors to be taken into account include the best interests of any children, availability of other accommodation, the parties' finances, violence, and existing court orders.

This is a subject about which we have heard considerable community concern. As with other family law issues, it does not appear that people have significant information about their legal rights. More importantly, lack of access to the courts and delay may have a major impact on asserting a claim to occupancy of the home to which a spouse may be entitled, and/or which may be in the best interests of the child.

Practical issues also create difficulties in asserting rights to exclusive occupancy. First, the court is required to consider the availability of alternative accommodation. In light of Nunavut's housing crisis, it may be very difficult to order someone out of the home when the alternative is homelessness or moving into the already overcrowded homes of relatives. Local housing organizations (LHOs) have responsibility for the administration of housing within the community, and most LHOs have emergency criteria for moving people up the waiting list for available units. In most cases, according to Housing Corp personnel, those criteria would be used to assist a homeless parent and children.[86] It is not clear whether that same priority would be used for a single individual in order to maintain the children and custodial parent in the existing home. Further, there are limits to the ability of these local bodies to prioritize since there is "not a vacant useable social housing unit in Nunavut."[87]

The housing shortage, and the dependence on local committees to allocate what housing there is, may also be problematic for some individuals seeking a separation. It can create an opportunity for members of the housing committee, particularly if they are friends or relatives of the spouse resisting separation, to exert pressure in favour of staying in the relationship. This issue was not reported to us directly in community meetings, but it has been a problem in other Aboriginal communities[88] and is consistent with concerns expressed by Pauktuttit (the Inuit Women's Association) and others about difficulties for women in small close-knit communities who are seeking assistance to get out of violent relationships.

These practical issues will not, of course, be resolved by legislation. However, changing the legislation to further the objectives of the existing scheme may be worth considering. The ability to stay in the family home is clearly an important determinant in custody and access disputes; it is also an important safety issue. In light of the significance of this issue, it is important to consider options that promote speedy and readily obtained, decisions about possession of the home. It may even be appropriate to devolve these decisions, subject to review by the Nunavut Court of Justice, to local decision makers such as JPs or CJCs if they are ready to take on this responsibility. CJCs, if they have a sufficiently diverse composition, may be an appropriate forum to work out these decisions, as they may be able to creatively and inclusively negotiate a workable plan for where a non-custodial parent might stay. Decisions by a local authority (JP or CJC) about exclusive possession should be enforceable as decisions of the court, subject to judicial review.

3.7  Children and their Families

Children are a treasured part of Inuit life. The current population boom means that more families have children, and there are more children in each family. Overall, in Nunavut, families with children make up a greater percentage of the population than in the rest of Canada. Census data from 1996 indicated that 11,835 children were living at home in Nunavut in 5,275 families. The average number of children at home in the census year was 2.2, and everyone agrees that this number has risen since then. By contrast, nationwide, Statistics Canada reports that families with children make up 67 percent of all families, with on average, 1.2 children at home in those families.[89]

Our survey is consistent with the figures from the census. Eighty-one of our respondents (about 23 percent) did not report any children. Seventy-seven percent (261), well above the Canadian level, of all respondents reported having children. Moreover, among our respondents with children, they reported having a larger number of children: 3.5 children on average, or a mean of three children.

3.7.1 Structure of Families with Children

There are also substantial differences between family types in Nunavut and the rest of Canada. In Nunavut, according to our survey, there are two thirds as many common-law families with children (61, or 27.4 percent of all families with children[90]) as there are married couples with children (96, or 43 percent of all families with children). Lone-parent families, including divorced and separated parents, as well as those who were never married, make up a substantial group (49, or 22 percent of all families with children) (see Figure 3).

By contrast, in Canada as a whole, married couples with children make up 69 percent of families with children, while common-law families make up 8.5 percent of those families, and lone parents make up 22 percent of families.[91]

Figure 3: Family Structures of Families with Children

Figure 3: Family Structures of Families with Children

[ Descritpion]

Although we cannot measure the trend directly, our results suggest significant changes in family type over time in Nunavut. The majority of respondents in our survey who, at the time of their birth, lived with both parents reported that they had lived with both parents throughout their entire childhood (80 percent, or 197 of 247 respondents). Furthermore, 85 percent of those people said their parents had been legally married.

3.7.1.1 Lone-Parent Families

In Nunavut, as in Canada as a whole, lone-parent families are far more likely to be headed by women than men. Although absolute numbers are too small to be reliable, in our survey it appears that three quarters of lone-parent households (34 of 46) are headed by women. This compares to Canadian figures showing that four out of five lone-parent families are headed by women.[92]

Our survey provides a snapshot of the marital status of those who are currently lone parents. While some are divorced (3 of 51) or separated (5 of 51), a far greater proportion of respondents were never married and are not now living common law (18 of 51) or are widowed (13 of 51) (see Table 16).[93] By contrast, in Canada in 1991, only 22 percent of lone-parent families were headed by people who were single, never married.[94]

Table 16:
Distribution of Single-parent Respondents by Marital Status
  Conjugal Status
Once married,
now separated, divorced or widowed
Never married
and not common law
Undefined*
F M Total F M Total F M Total
With Children only 7 4 11 9 1 10 6 0 6
With other relatives 7 3 10 7 1 8 5 1 6
Totals 14 7 21 16 2 18 11 1 12

N=51 respondents who identified themselves as having children, and not having a spouse in the household.
* Undefined includes those respondents who did not identify their marital status, and also includes those who defined their status as currently married or common law (N=3, all living with relatives).

Another distinctive characteristic of lone-parent families in Nunavut is the high proportion of those families living with another adult relative, almost half (24 of 51). There are a number of potential implications of this. First, the caregiving burden likely falls less heavily on the lone parents who live with their families. Second, the financial burden of parenthood may also be distributed among a larger group, even when the non-resident parent is not contributing.

In the rest of Canada, lone-parent family type has been strongly correlated with a range of important social trends:[95]

  • Lone parents as a group tend to have significantly lower household incomes than either common-law or married couples with children.
  • Children born to common-law unions are over-represented among children who experience the break-up of their families.
3.7.1.2 Blended Families

In Nunavut, a slightly higher percentage of people report living in "blended families" relative to the Canadian average. In 1995, of the approximately one in ten couples with never married children living at home, at least one of the children was being raised by a biological or adoptive parent and a stepmother or usually stepfather. Of that 10 percent, one in three had children with different parents.[96] We did not get a precisely comparable figure. However, our survey showed that 8.1 percent of respondents reported having raised a stepchild. And, as noted in Table 11, at least 32 (9.4 percent) of respondents reported that a partner had children from previous relationship. Taken together, these figures indicate that a significant number of Nunavut children are growing up in blended families. Also, in terms of their own childhood experiences, a very large number of people reported having had a half-sibling (34 percent).[97]

3.7.2 Children's Living Situations

Although the initial survey was designed to obtain the information that would allow us to make statements about the number of children living with one, two or no parents, our data on people's children were less complete than anticipated. Surveyors were asked to go through a series of questions with respondents about their children. If there was a significant difference in the life history of one or more children (different parent, left home, adoption, guardianship, etc.), the same questions were asked again for each child or children with the different life history. Surveyors were asked to indicate how many children were covered in each such section. Considerably fewer of these "other children" sections were completed than anticipated. Unfortunately, therefore, we are limited to making statements that relate directly to our respondents and expressing our results in a sometimes roundabout fashion.

In order to use any of the data in this section, we were required to make statements about the number of respondents in a given situation, rather than the number of children affected. Also, because we had serious concerns about the approximately 40 "other children" sections, we made the decision to report only on information in the first section filled out about the respondents' children, thus unavoidably losing significant data, in order to be consistent.

In retrospect, the design of the survey was more complex than it should have been.

Respondents were asked to identify whether they lived with their children all, part or none of the time. Of the first set of responses, 222 said they were living with a child all the time (85 percent), six were living with at least one child part of the time (2 percent) and 32 (12 percent) reported that at least one of their children does not live with them.[98] Of those reporting that at least one of their children does not live with them, eight reported that they gave up the child for adoption.[99]

Of those people who said at least one child lived with them all the time, 123 answered that the child or children's other parent also lived in the household. Sixty-three said the other parent did not live in the household, and seven said the other parent was deceased. A significant number of people did not answer that question (43), which precludes a clear statement about what percentage of parents have children who do not live at home. However, this result suggests a large number of respondents-more than a third, perhaps even half-have children who are currently not living with both of their parents.

Respondents reported that a large percentage of the children who did not live with them, or didn't live with them all the time, were also not living with the other parent. On the contrary, it appears that almost half of the 38 respondents[100] who identified themselves in this group reported that a child who did not live with them lived with a relative other than a parent. Sixteen reported that at least one child lived with the other birth or adoptive parent. Three reported that at least one child was living with a spouse.[101] Seven reported that at least one child lived with another relative (a sibling, a grandparent or aunt). Three reported that the child lived with a non-relative.

Arrangements for caregiving and for the financial support of children not living with both parents are, at least potentially, matters that would be decided with reference to responsibilities under family law. The data suggest a number of significant trends. First, there are very few cases in which parents report joint-parenting arrangements. It is also interesting to note that not one of the respondents who had at least one of their children living with them part of the time, or who reported very significant visitation with the child or children to whom the first section applied, described their relationship with the child and the other parent as one of "joint custody." In community meetings as well, nearly everyone was unfamiliar with this term. Of course, it is also notable that none of the respondents who had a child living with them part of the time reported having gone through the court system. At meetings, people did not tend to differentiate between legal and physical custody, and used the term "custody" simply to denote the residential arrangements of the children.

Also, the results underline the significance of taking the extended family into account in decisions about custody and access. Clearly, it can be anticipated that extended family members may be doing more than applying for rights to access. Whether or not these cases go to court, a significant number of non-parents have physical custody of children who do not live with their parents.

3.8 Contact with Non-residential Parents

One of the key issues in family breakdown situations is the extent to which children continue to have contact with parents with whom they are not living. The data are flawed in that considerable numbers of respondents did not answer these questions. However, we were able to sketch some broad conclusions.

Respondents in our study tended to report that in most cases, contact continued between children and their non-residential parents. Nevertheless, about 20 percent of respondents reported having lost all contact with at least one of their children. This is about the same as the national rate. One major national study reports that about one sixth of fathers report that they have lost all contact with their children, and about one quarter of mothers report that their child has no contact with the father.[102]

The most frequent type of contact reported was daytime visits. Fewer people said they had overnight visits or merely telephone contact. Nationally, survey results have shown that when children do not have in-person contact with their non-custodial parents, they also do not have telephone or letter contact.[103] Although the sample is small, about half of the parents who lived far from their children reported staying in touch by telephone and letter (see Table 17).

Table 17:
Non-residential Parent Contact by Type of Contact and by Gender of Respondent*
  Female Male Total respondents Total sample
Daytime visits 5
42%
2
18%
7
30%

22%
Telephone/letter 2
17%
4
36%
6
26%

19%
No contact 3
25%
4
36%
7
30%

22%
Overnights 2
17%
1
10%
3
10%

9%
Missing data - - - 28%
Totals 12
100%
11
100%
23
100%
32
100%

N=32 respondents who reported having children who did not live with them all the time.
*  The table reflects only information from the first children section filled out by respondents.

It was our hope to be able to report on the amount of time that respondents spent with their non-resident children. However, the data set is too small and appears to be inconsistent on this point. Unfortunately, we were not able to determine the average amount of time respondents spent with their non-resident children in a month or during the year.

3.8.1 Long-distance Access

We were able to collect data on one factor that clearly affects continuing parental access, namely, the relative proximity between the household of children and non-resident parents. Because of the large distances and considerable expense involved with necessary air travel, relocation issues are particularly poignant and intractable. Our results show that about half of the respondents in our survey who did not live with their children could only reach the place where their children live by airplane (see Tables 17 and 18).

Table 18:
Distribution of Non-resident Parents' Contact by Distance
  10 km(this community) Nearby community, ground accessible (10 hours) Northern community(NU/ NWT, air access)
Daytime visits
Row percent Column percent
5
71%
50%
  2
29%
22%
Telephone / letter
Row percent Column percent
  1
17%
50%
4
67%
44%
No contact
Row percent Column percent
3
43%
30%
1
14%
50%
3
43%
33%
Overnights
Row percent Column percent
2
100%
20%
   
Missing data - - -
Totals
Row percent Column percent
10
45%
100%
2
9%
100%
9
41%
100%

  In Canada or US outside NU / NWT Total respondents Total
sample
Daytime visits
Row percent Column percent
  7
100%
32%

-
22%
Telephone / letter
Row percent Column percent
1
17%
100%
6
100%
27%

-
19%
No contact
Row percent Column percent
  7
100%
32%

-
22%
Overnights
Row percent Column percent
  2
100%
9%

-
6%
Missing data - - -
31%
Totals
Row percent
Column percent
1
5%
100%
22
100%
100%
32
-
100%

Family lawyers in Nunavut have reported that one of the biggest issues for separating parents is negotiating access when a parent wants to leave the community in which he or she had been living with their spouse. Lawyers told us there was relatively little room for compromise on this point in most families, as there were often insufficient resources for regular visits over long distances. At community meetings in Pond Inlet and Coral Harbour, we heard frustration and expressions of loss about children who had left the community with one parent and were not going to be able to come back with any regularity.

Interestingly, there was no strong relationship between the cases in which one parent reported that the child lived far away and those in which the parent reported they had no contact with that child or children. There were as many cases of no contact reported when the child lived in the same community as cases when the child lived far away. One obvious conclusion is that the relationship between the parents, and between the parents and the children, remains a crucial issue in terms of continuing parental contact.

Nevertheless, distance is important in that most parents living far away reported that they had no contact, or only contact by telephone and letter.[104] There was only one case in which a parent reported that their child or children had not only left the community, but left the North. This was somewhat surprising, as there appears to be community concern about children leaving the North when parents separate, and about the potential results of doing so, especially for Inuit children. This factor also is recognized in the law, as courts are mandated to consider children's continuing connection with their culture and family networks by the Children's Law Act. This bind is more critical than that facing many parents and children elsewhere in Canada when one parent wants to relocate to a place far away, since there are very few options for relocation that do not involve airplane travel. Despite clear discontent with the status quo on this subject, it is also clear that this issue is not litigated. There have been no written decisions under either the Children's Law Act or the Divorce Act on the subject since 1998, when the new legislation was passed in the territories.

3.8.2 Satisfaction and Efforts to Change Arrangements

Overall, respondents displayed relatively little dissatisfaction with their arrangements concerning contact. Only 4 of 32 respondents who were not living with at least one of their children all the time said they were dissatisfied with their arrangements. Eighteen reported being satisfied, and eight had no opinion. Too few people responded to this question to reliably report on the reasons why they were or were not satisfied. Most who said they were satisfied reported being able to see their children whenever they wanted and had a continuing sense of being a family. Of those not satisfied, one said it was because the mother would not allow him to see his child, and the other said his child lived too far away (two did not answer).

Finally, those same parents were asked whether they had ever tried to change the living arrangements of their children. Few (only four respondents out of 31 who answered) had ever tried to change any arrangement concerning contact with children who were not living with them. Although they were asked, none of them gave reasons why they had, or had not, tried to change arrangements.

We asked separated or divorced survey participants if they knew that a person could go to court for a decision about custody or access. The majority of respondents (22 of 31) said they knew that one could go to court, and only six said they did not know. A slightly larger group answered a question about the importance of knowing about the existence of the court as a recourse; 29 said they thought this information was very important, and only three said they didn't consider the availability of a court determination important to them.

In summary, parents did not express widespread dissatisfaction with contact arrangements between non-residential parents and their children. Most visits are occurring during the daytime with fewer parents reporting overnight visits or just telephone contact. In a considerable number of cases, however, non-residential parents report losing touch with their child or children. Lawyers and community members agree that one important reason for loss of contact is the problem of distance, particularly intractable in Nunavut's isolated communities. However, distance alone does not account for the loss of contact or other problems.

3.9 Payment of Support

Child support has been an important priority of family law efforts in Nunavut in the last 10 years. The development of the Maintenance Enforcement Office has been the only family law initiative to be consistently funded and institutionalized. The Government of the Northwest Territories enacted the Child Support Guidelines, which have been grandfathered into Nunavut law, and both levels of government have allotted significant resources to the dissemination of the Guidelines and to public awareness campaigns to promote their use. Nevertheless, it is clear that child support is not being paid in the majority of cases in which parents are not living with their children; the Guidelines are not well-known, and there is little use of enforcement services relative to the number of potential cases involving support obligations.

In our survey, a small minority of parents reported receiving support for at least one of their children. Only seven reported receiving financial support, while 18 respondents said they received no support. Four parents reported receiving various kinds of material support other than money, and 20 said they did not receive any type of material support.[105] Non-financial support has been emphasized in family law reform recommendations to date as being culturally appropriate, consistent with the duty to provide for the family in traditional ways (for example, with meat), and particularly suitable if people have low incomes.[106] However, our results suggest that the practice is not very common in Nunavut.[107] This may be an area in which public education could be useful and would also be perceived as culturally appropriate.

A larger minority of non-resident parents, by contrast, reported paying support for at least one of their children. Fifteen parents not living with their child or living with their child only part of the time reported that they paid support. Seventeen of that group said they had not paid support.[108] In that group, exactly the same proportion of people said they had contributed or not contributed material support. Respondents also reported that a minority of their spouses contributed support for children under age 18: eight said their spouse did provide support and twelve said their spouse did not.[109]

There was slightly greater consistency between payors and recipients in terms of the frequency of support payments. The largest number of people in both groups said they received or paid support regularly, defined as at least once a month.[110] A smaller number in both groups said they paid or received support "fairly regularly,"[111] at least several times in a year. Still fewer were the people who said they paid or received support "occasionally" or when the payor was employed.[112]

Non-residential parents were asked why they did or did not pay child support. Parents cited a sense of responsibility for children, the fact that children were still family, and the existence of an agreement as reasons to pay support. Several reasons were given for why some parents were not paying support. The largest number of these parents said that they were not paying support because they had not been asked to. Several people said they did not pay because they had no obligation to, or because they were no longer living with the child. A couple of people said they did not pay because they were supporting a new family. It is interesting to note that of those who were entitled to receive support but were not receiving it, about one third (seven respondents) had asked for support and two thirds had not asked for it (13 respondents).

3.9.1 Actual Orders and Enforcement Activities

These results can be compared with actual orders and enforcement activities in the Maintenance Enforcement Program.[113] As of January 2001 there were 166 open files in the Nunavut office. Of those, only about a third (56) are "all-Nunavut" cases, in which both the payor and the recipient live in Nunavut. Overall, fewer than half the recipients (only 81) live in Nunavut. Of the Nunavut recipients, one fifth (16) of them live in Iqaluit and the rest are scattered throughout the territory. The majority of files (85) are reciprocal enforcement cases, where the recipient lives in another jurisdiction. Far fewer cases involve reciprocal enforcement by another jurisdiction of a Nunavut order, in which the payor lives out of jurisdiction and the recipient is a Nunavut resident (25 files, or 15 percent).

This information raises a number of points.

First, while it is difficult to calculate precise numbers, it appears that somewhere between three and eight times more people are actually paying support than are registering orders or agreements with the Maintenance Enforcement Office.[114] Depending on how one interprets the "no answer" respondents, it appears that between 12 percent and 28 percent of respondents receive support for a child. By contrast, recipients registered with MEP make up about five percent of the one third of Nunavut families (approximately 1,750) in which a parent does not live at home.

This is encouraging because it suggests that more children in Nunavut are receiving the support that is due to them, or some of it, than just the small number of cases enforced with government assistance. Of course, little information is available about the amount of payments or the regularity of payments in these cases, so it is impossible to know whether people outside the system are actually receiving amounts comparable to what would be ordered by the courts, or comparable to amounts that could be collected through the program.

The statistics on reciprocal enforcement are also thought-provoking. Almost half of the people using the program to obtain support do not, in fact, live in Nunavut. This raises questions about how to develop the territory's main family law program in a manner that serves primarily Nunavummiut, without interfering with federal commitments.

It is also notable that few Nunavummiut are enforcing orders against those outside the territory. There is a community perception that many of the single women's children are conceived during relations with people "passing through" the community, a significant number of whom are from the south. We have heard that these single mothers-and their parents-felt unable to get support from these absent fathers. There was strong support for using the law to enforce the responsibility of these "hit and run" fathers, even among persons who were generally more ambivalent about enforcing support obligations. Given the legal and logistical complexity of finding these fathers, proving their paternity, asserting a claim against them in their province and enforcing it, there is a significant need for services to deal with this demand.

One factor accounting for the relative non-use of Maintenance Enforcement Services is a lack of knowledge about them. Respondents were asked how much they knew about the Maintenance Enforcement Program, and about government activities to enforce child support collection. In general, there is little public awareness of these services. Only about 16 percent of respondents said they had heard of MEP.[115] A notably larger number of people were aware that the government provides child support enforcement services: 27 percent (see Table 19).

Table 19:
Distribution of Respondents' Familiarity with Maintenance Enforcement and Child Support Services
  Heard about the services? Percent of total sample
Maintenance Enforcement Program Yes 56
19%
16%
No 236
81%
69%
Child Support Services Yes 93
32%
27%
No 199
68%
58%
Total respondents   292
100%
342
100%

Although people were unfamiliar with the existing maintenance Enforcement Services, many respondents who had experienced separation (21 of 30) said they were aware that the law required parents to support their children. Even among that group of separated parents, barely half (16 of 29) said they knew about any enforcement services provided by the government. Almost all the respondents (28 out of 31) thought that the services were very important. People gave various reasons for this, including the difficulties of supporting children as a single parent, the high cost of raising children, and the obligation of each person to work to support their children.

These results strongly suggest a need for the Maintenance Enforcement Program to make its services better known in the territory. In addition, the name "Maintenance Enforcement" is clearly not one that many Nunavummiut recognize or associate with the activities of the office. It may be preferable to give the services a new name that will be more easily recognized and identified by people in communities.

It was also clear that addressing the possible negative perceptions of child support or the Maintenance Enforcement program is important. While the principle that parents should support their children was strongly embraced, we heard repeatedly that people in communities think it is unfair for people with little money to be asked to pay large amounts. They were very concerned that low-income people were racking up large debts that they would never be able to pay back. This was clearly identified as the major problem with MEP, and indeed, with the principle of child support. In addition, several people raised serious concerns about cases when a person is required to pay large amounts under a previous order and is unable to support himself or his new family.

To a large extent, the problem of inability to pay is heavily focussed on arrears. The majority of payors (47) were in significant arrears. Average arrears owed to custodial parents for all 166 files amount to almost $10,200 dollars, or a total of $1,690,417. Major efforts and vigorous enforcement since the inception of the Nunavut office a year ago have made a considerable dent in this problem.[116] At this point, a large number of the MEP files in Nunavut are showing current payments. Of 56 Nunavut files, for example, monthly payments are being made in 43 of them.

For the credibility of the system alone, these issues should be addressed. Payors need to have their orders or agreements modified to take into account their actual circumstances. There have been almost no modification orders made in the last several years. It would be useful to publicize the possibility of obtaining a variation in a court order; and also to allow payors and recipients to agree to forgive a portion of the arrears or to accept material support, such as food, in place of financial contributions. These arrangements should be recognized by the Maintenance Enforcement Office as well as registered with the court. For years, too, there have been no default hearings in Nunavut. It is hoped that the first hearings will begin this year. As they become more routine, they will provide an opportunity for payors to alter untenable orders as well as an effective collection mechanism for those payors who willfully disregard their support obligation.

In summary, research results in the area of child support are somewhat disturbing. A minority of custodial parents report receiving child support, and a slightly larger minority of non-custodial parents report paying it. The major emphasis among those surveyed was on financial support for children, not other forms of support, such as foodstuffs. The Maintenance Enforcement Program is involved in only a minority of cases in which support is actually being paid. MEP has considerably expanded in the last 10 years, and is now quite successfully receiving payments on its open cases. However, research revealed disturbing information about the program, notably that Nunavummiut recipients are not the primary beneficiaries of the program at this time and that widespread public knowledge about the program is lacking.

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