Report on Family Law Research in Nunavut

4. RESULTS OF RESEARCH PROGRAM: PROCESS, SERVICES AND INFORMATION

Underlying the main issues in the study is the central question of process. Even in the survey context, respondents openly shared information with us about how they had reached arrangements to address issues concerning support for and custody of their children. This provides a useful quantitative element to the abundant comments we received in community meetings. There are clear implications for the development of law and services.

4.1   Resolving Custody and Support Issues

In our study, 78 parents were not living with at least one of their children. This is more than the number of people who identify themselves as separated or divorced, and likely includes lone parents and some people who are no longer in a common-law relationship but do not identify themselves as "separated." We asked them if they had ever had an agreement with another person about the custody or support of their children. Ten did not answer. For the rest, the results were quite striking: almost 60 percent (40) said they had never had any such agreement. Just as striking, only two people (less than 3 percent) said they had had a court order to address issues of custody and support. Of the remainder, 16 had a written agreement and 10 had an unwritten agreement (respectively, about 23 and 15 percent)[117] (see Figure 4).

These somewhat dramatic statistics should be viewed in light of national research that also tends to show surprising results about the many cases resolved without court involvement. Two recent surveys suggest that about a quarter of separated parents in Canada have no initial agreement regarding issues of custody, access or support.[118] The survey relating to child support found that most parents without arrangements had not sought child support at all, either for economic reasons, because the children were adults, or because of the hassle involved in reaching an agreement. The findings on this point have quite dramatic implications for the court system.

Figure 4: Distribution of Respondents' Arrangements Regarding Children

Figure 4: Distribution of Respondents’ Arrangements Regarding Children

[ Description ]

The fact that few child support agreements are made raises several questions. We do not know exactly what occurs when there is no agreement in place. Are children's needs met? Was there a clear unwritten understanding? Was there duress, or flight? It seems likely that this result reflects what has been widely described as a classic Inuit cultural trait, that is, non-confrontation.[119]

Factors that would affect a person's decision to go to court in a family law case were discussed at length in community meetings. All participants agreed that few people went to court. Aside from practical difficulties, there was a perception that fighting over children was bad for them-might even kill them-and therefore should be avoided whenever possible. A number of participants in the stakeholder consultation suggested other factors as well.

  • Imbalances of power between spouses when one has been a victim of violence or has been intimidated by their partner. One lawyer described witnessing a repeated pattern of a mother who, when alone in his office, could clearly express what she wanted, but who would not be comfortable saying anything at all when her spouse was present.
  • Intergenerational effects of residential schooling, or child welfare involvement in the family. One commentator noted that some Inuit parents may lack the confidence to claim custody of their children because they doubt their own parenting ability, and have often been told directly or implicitly that they are not fit parents. She suggested this was a common problem acute in interracial disputes about custody.
  • Children have an exceptionally large role. Several people expressed the view that there are few disputes because most people consider that children should decide where they want to live, though at a much younger age than is the norm in the rest of Canada. Most participants in the session said they thought it was not uncommon for a five-year-old child to make a decision about where he or she should live.[120]

Certainly, these results confirm the widespread perception that most people in Nunavut do not turn to the courts to deal with questions concerning to their children. The national custody and access study showed that about a third of parents nationally go to court.[121] This is 10 times the proportion of people who go to court in Nunavut. If the legal regime that is in place-the Divorce Act and the Children's Law Act-is affecting the majority of Nunavummiut, it is not doing so by means of judicial decision-making. If at all, it affects people in the ways they internalize norms about fair and reasonable arrangements for their children. It is just as likely, however, that other non-statutory norms, cultural and otherwise, may be at play. Consistency in informal arrangements would tend to suggest a strong set of norms; lack of consistency may reflect competing norms as well as widely differing circumstances.

The question of whether people sought assistance when they were separating also reveals a high level of autonomy. We received 66 six answers to the question. Slightly fewer than one third (21) of respondents said they had turned to assistance when they separated; the remaining two thirds (45) said they had not sought assistance. It is possible that the question was not as broadly understood as we had intended, but nevertheless, this seems to suggest that the majority of people did not have any expectation of receiving any outside assistance when they separate. Of those who had received assistance, nine said they had turned to a social worker, eight to a lawyer, and four to a friend, relative or elder (there was some overlap between these groups). Two had sought assistance from a court worker and one sought help from the community liaison officer, a former type of Hamlet official who often provided a link to different government services.

4.2   Family Law Services

The question of process or lack of it leads directly to the question of services, or lack of them. The stark reality of Nunavut life is that there are very few social services in most communities. Services tend to be concentrated in larger communities and regional centres, and even their resources are limited. Services are rarely specialized, and service providers are almost always overburdened. The result is that most Nunavummiut do not have access to services as they are conventionally understood. In this study we also tried to grasp what informal or general services may be filling gaps where there are no specialist services.

4.2.1   Family Law Services Available in Nunavut

For the service inventory, we conducted telephone interviews with Senior Administrative Officers in most Nunavut communities, excluding the very smallest and the regional centres (see methodology for detailed discussion). We asked about their perception of how often people in their communities had difficulties with separation and divorce, and what services existed for people experiencing such difficulties. Most officials thought that separation was a relatively common issue, although divorce was much less so. The majority (11 of 17) knew of individuals or families experiencing difficulties with separation or divorce. The most commonly cited problem in their view was violence (16 of 17 respondents ), and about half mentioned problems in certain cases with custody, access and support issues. Their perspectives are important as, with the Hamlet Council, the Senior Administrative Officers continue to play a major role in community planning and budgeting.

The results also revealed a drastic shortage of services. Social services, including child protection and supervision of probation as well as any other priorities, are provided by a social worker in most communities (14 out of 17). However, several communities reported serious problems with retaining social workers: six communities reported that during the previous two years they had no social worker for periods of one month to one year. Seven of 13 Administrative Officers who currently have a social worker in town said that person addressed family problems, two said they did not and four did not know whether the social workers provide family support services.

Almost as many communities reported having a community wellness or mental health worker (12 out of 17). Community wellness and mental health workers provide a combination of substance abuse and other mental health services. Another four communities have a counsellor resident in town. A handful of communities reported somewhat more unusual institutions, such as the Family Resources Centre run by the Ilisaqsivik Society in Clyde River, or the Men's Wellness Group in Pangnirtung. There are other communities, such as Whale Cove in the Keewatin, where there is no RCMP, no full-time social worker, no guidance counsellor, no day-care, and no safe house for victims of violence.

The most commonly cited services were those for people experiencing violence: six out of 17 communities had safe homes, and another two communities outside of regional centres had a shelter. Another community reported having a "makeshift" shelter. Several people mentioned that the RCMP provides a family law service. One administrative officer said the Community Justice Committee provides services for people with family law difficulties.

In terms of services for youth, students may have access to a guidance counsellor (in 10 of 17 communities) or to a youth committee (10 of 17 communities), a major source of program planning for youth out of school. Fewer than half of the youth committees had a staff person responsible for coordinating these groups. By and large, the committees focus on recreational programming for youth and do not offer support services for young people having difficulties with life events such as family breakdown. In our visits to the high schools, it became very clear that teenagers desperately need information about the family law process, not only as individuals affected by their parents' relationship difficulties, but also as parents themselves. The schools, specifically the classroom through curriculum development, continue to be one of the only ways to reach youth and children in all communities.

The other universal community institution, in every Nunavut hamlet or town, is the church. The church in most communities is Inuit-run, unlike many other programs. We heard considerable anecdotal evidence of church groups getting involved in counselling couples experiencing marital breakdown. However, several informants noted clear limits to the services provided under church auspices, since separation is contrary to the religious principles of each major organized group. Several people said they personally would not turn to the church with a question related to separation or divorce for that reason.

Outside of these services, there were a handful of other groups (an elder's group, a caregiver's committee), but most of the other administrative officers reported no other services in the communities.

This lack of services has one clear implication for legislative reform. Any reform that tends to mandate services as a prerequisite to divorce or court involvement is likely to create a major barrier for people from smaller communities in the North. From a northern perspective, any mandatory services would be impossible to provide on a routine basis. There is no mediation in place; parental education programs would have to be limited to a videotape presentation accessible to all; counselling is inconsistently available and, in many cases, counsellors have limited expertise or a conflict of interest.

4.2.2   Use and Knowledge of Family Law Services

In the household survey, we asked about knowledge and use of several major types of services specifically for family law purposes. The responses revealed a consistent lack of awareness of such services.[122]

The majority of people knew only social workers and church groups as service providers when a person is having a family law difficulty. About half of our respondents were aware that Legal Aid represents people in family matters. Strikingly, more people were familiar with the possibility of obtaining family law assistance from a Community Justice Committee than with Maintenance Enforcement Services. This is notable because CJC's officially have neither family law authority nor any training in these issues. Nevertheless, their presence in the community evidently attracts a certain number of people and causes them to be considered a resource (see Table 20).

Table 20:
Distribution of Respondents' Awareness of Selected Family Law Services
Have you heard about.   Female Male Total respondents Percent of total sample
Legal Aid for family matters Yes 94
56%
64
52%
158
54%

46%
No 74
44%
60
48%
134
46%

39%
Maintenance Enforcement Services Yes 36
21%
20
16%
56
19%

16%
No 133
79%
103
84%
236
81%

69%
Child Support Services Yes 55
33%
38
31%
93
32%

27%
No 114
68%
85
69%
199
68%

58%
Social workers as family counsellors Yes 124
73%
78
63%
202
69%

59%
No 45
27%
46
37%
91
31%

26%
Church groups as family counsellors Yes 94
55%
81
65%
175
60%

51%
No 75
44%
43
35%
118
40%

35%
Community Justice Committees in family matters Yes 74
44%
50
40%
124
43%

36%
No 94
56%
74
60%
168
58%

49%
Total   168 124 292 342

We further asked what services had actually been used by the respondents for a family-law-related matter. Again, use was minimal, but this is not surprising in light of the overall rate of relationship breakdown.

Overall, 72 percent[123] of respondents said they had never used any of the services we asked about. Of the remainder, by far the largest group had used the services of a social worker (people could say they used more than one services, so some are double-counted) (see Table 21).

Table 21:
Distribution of Services Used by Respondent by Type and by Gender

  Female Male Total respondents (multiple responses permitted) Percent of total sample
Social Services 31
60%
12
44%
43
54%

13%
Legal Aid 18
35%
7
26%
25
32%

7%
Church Groups 9
17%
5
19%
14
18%

4%
Maintenance Enforcement 10
19%
3
11%
14
18%

4%
Community Justice Committees 4
8%
5
19%
9
11%

3%
Court 4
8%
  3
5%

1%
Other   2
7%
2
3%

1%
Total 52 27 79 342

We asked what people had used their services for, and got a much wider range of responses than anticipated. The definition of a family problem in the minds of our respondents was broader than we thought. We can say people used services for matters ranging from criminal charges against their child, foster care issues, violence, counselling and mental health issues as well as custody, access and support issues. Other people did not want to go into the specifics of their problem, and answered, for example, "husband/wife problem" or "kids" when asked why they had used the services. Accordingly, uses resisted categorization. In light of the fact that people are not able to seek out specialized services, it is not surprising that they also define their family problems in general terms. This is an important example of difficulties faced when attempting to do a narrow consultation on a specific legal or service issue in the North.

4.2.3   Priority Services

There was remarkable consistency at community meetings about which services people thought were valuable. There were three main messages. The service most people identified as useful for people experiencing marital difficulties was counselling. There is a widespread demand for more counselling services. Second, there was not a demand for legal information as such. Participants felt that information, without services, would not significantly improve the family law situation. Third, when the survey was administered, legal services were not perceived to be available when they are needed.

There was considerable discussion about the importance of having counselling available, particularly as a resource for people considering separation. However, we noted that people differed in terms of what they saw as the purpose of this counselling. Some, certainly, saw counselling as a time to encourage parties to do what was necessary to try to stay together or get back together. People expressing this view were often among the older people at meetings. Others seemed to see counselling during a crisis as a way of bringing about behaviour change: if part of the problem was because someone was drinking, using drugs or even abusing their partner, then counselling was considered a way to change that harmful pattern. Men and women of different ages held this view. Often speakers expressed the goal of seeing a relationship survive, but only with "healing." Some among this group also emphasized the importance of safety. Still others appeared to see counselling during a relationship crisis as an opportunity to provide support for people in a painful time in their life, without a strong sense that the couple should necessarily get back together as a resolution to their marital difficulties.

Although we did not explore it in detail, there did not appear to be a consensus in terms of form. People did not appear to be advocating specifically for either couples counselling or individual counselling. We did not have discussions about safety or power imbalances in counselling contexts. This issue was not raised at the community level. Nor did we discuss mandatory counselling or information sessions. Considerable opposition would likely arise to any type of mandatory program, especially considering the widespread concern about violence.[124] Also, as discussed above, any mandatory service program would pose significant logistical problems amounting to a barrier to access to justice. Finally, since relatively few people enter the court process, any mandatory program would still only reach a limited number of people.

In terms of the demand for legal services, people expressed frustration both at not knowing their legal rights, but more importantly, at feeling unable to get any remedy from the family law system.[125] Many people expressed doubts about receiving information in the form of an advertisement or a pamphlet which did not include access to services that would enable them to exercise the rights described. People who had an understanding of their rights reported feeling completely stymied in trying to find a way to achieve their goals in terms of support for their children or other family law issues without assistance.

A desire for representation was not necessarily expressed as a desire for adversarialism. Indeed, the adversarialism of the justice system is still considered, by anyone who raised their voice on the subject, as one of its problems.

People were quite consistent in terms of the types of cases in which they wanted a lawyer. Those were cases in which the other party was out of the community and often out of the jurisdiction; cases of women seeking support for their children; or cases in which the person needing a lawyer was a respondent in a proceeding someone else had initiated. For the women seeking support, they looked to the lawyer (and the law) as a means of vindicating rights. For the others (the majority), it appeared that they were seeking representation to handle an overwhelming process rather than trying to assert a certain right based in law.

The practical difficulties in obtaining legal representation remain staggering. The acute shortage of lawyers, discussed in section one, is still the biggest obstacle. The Legal Services Board hired two full-time family lawyers in the year 2000. After less than a year, they had almost 250 new open cases between them.[126] However, even having a family lawyer in each region leaves significant remaining problems in ensuring adequate representation. Conflict of interest remains a very big issue. Many people who might otherwise have asserted family law interests have been barred because the same clinic represented their spouse in a criminal matter-often, one where they were the victim. Short time frames for the exchange of documents do not take into account the isolation of the communities in terms of legal resources, and the inevitable delays in obtaining counsel have the potential to result in significant prejudice. Cost is a significant issue for those who are not eligible for Legal Aid.

Problems in obtaining representation also are tied directly to the general access to justice issues that consistently plague the North. Because courts sit so seldom in most communities, opportunities to have a matter heard with all parties present are infrequent. The Law Review Commission has observed that the process of handling uncontested family disputes frequently involve motions between counsel when the parties are not present. Since these matters are heard outside of communities, community members have even less opportunity to understand the process or to have input. Despite the training of interpreters, language is also a barrier for many, as currently only one lawyer in Nunavut speaks Inuktitut. Not all the lawyers working with Inuit have achieved cross-cultural competence and there can be significant misunderstandings. The reason is that if victims of violence have a negative experience in court, they may not continue to see the court as an appropriate place to resolve matters in a satisfactory way.

Based on these findings, we strongly believe there is a need to work towards a non-court based system, accessible at community level, to address family law issues. In the Family Law Strategy (Appendix Four), which also emerged out of this research, the Nunavut Department of Justice committed itself, with support from the federal government, to train mediators. There will be a strong emphasis on training mediators in accordance with Inuit Qaujimajatuqangit principles on the basis of a collaborative approach between southern-trained mediators and respected community members. The development of a non-court process at the community level has the potential to contribute significantly to the ability of most Inuit to do more than merely get legal information about family matters, namely, to actually obtain some kind of relief through agreements enforceable by the court.

Several aspects of this plan need to be worked out in further detail, on the basis of consultations conducted by MQ and the department. As indicated by the service inventory, most services in Nunavut are not "free-standing" but incorporated into a general position. Community mediators with a family law background may form part of another group, for example, the Community Justice Committees. According to the Chief Commissioner, the CJCs in the North Baffin area expressed considerable interest in getting involved in family matters, if they felt they had sufficient authority. Other committees, however, have expressed considerable reservations about taking new authority and, in particular, getting involved in domestic disputes.[127] One Social Worker at our consultation suggested that these mediators work with Plan of Care Committees that are supposed to be established under the Child and Family Services Act.

4.3   Legal Information

A social worker in Pond Inlet best expressed our major conclusion about public legal information. She asked: "What good are rights on a poster or a pamphlet if there is not at least a number to call to help you use them?" Lack of information is a major problem, even if it is not the primary obstacle facing Nunavummiut as they attempt to resolve family law disputes. Despite the relatively high levels of knowledge expressed in responses to questions on the household survey, we were repeatedly struck by the need for more public information on a range of family law issues and people's rights. Important issues include:

  • the entitlement of all children to child support, and acceptable levels of support (child support guidelines), including the importance of non-financial contributions;
  • the rights of common-law partners;
  • the rights of extended family caregivers; and
  • entitlement to Legal Aid for family matters.

People had a range of suggestions about how to inform people about these rights, and about how they would prefer to get information about separation and divorce. While a significant number of people did not identify their preferred way of obtaining information, among those who did there were clearly preferences: most people would seek information about divorce from a lawyer, or a social worker. Very few people would try to obtain this information from a minister, a church group or a courtworker (see Table 22).

Table 22:
Distribution of Respondents' Preferred Means of Obtaining Information
Preferred information source   Total respondents (multiple responses permitted) Percent of total sample
Lawyer  Yes 119
43%

35%
Not indicated 158
58%

46%
Social worker*  Yes 97
35%

28%
Not indicated 178
65%

52%
Elder  Yes 67
24%

20%
Not indicated 207
76%

61%
Friend  Yes 58
21%

17%
Not indicated 216
79%

63%
Family  Yes 42
15%

12%
Not indicated 232
85%

68%
Courtworker*  Yes 28
10%

8%
Not indicated 247
90%

72%
Church group  Yes 20
7%

6%
Not indicated 254
93%

74%
Community Centre Yes 16
6%

5%
Not indicated 258
94%

75%
Other  Yes 11
4%

3%
Not indicated 263
96%

77%
Totals   274
100%
342
100%

*  N=275 Respondents.

In terms of media for communicating information about family law, communication by radio was strongly advocated. There is a very wide radio audience in Nunavut. It is also cost effective and largely Inuit operated. This was definitely a preferred form of communication. Television and newspaper had roughly an equal number of supporters. The cost of both is considerably higher than of radio. Furthermore, newspapers have a more limited audience, since there are significant literacy barriers. The Internet was not seen as a liable option. Considering the relative scarcity of Internet connections in the territories, their slowness, and the high cost of the service outside of Iqaluit and Rankin Inlet, where the only Internet service providers are located, this is not surprising.

Respondents also had a range of creative suggestions for getting information out, including fridge magnets with phone numbers, use of community organizations and networks, brochures, community meetings, and so forth (see Table 23).

Table 23:
Distribution of Respondents' Preferred Media for Obtaining Information
Media   Total respondents Percentage of
total sample
Internet Preferred 51
16%

15%
  Not preferred 262
83%

77%
Newspaper Preferred 136
43%

40%
  Not preferred 177
57%

52%
Posters Preferred 70
23%

20%
  Not preferred 239
77%

70%
Radio Preferred 210
69%

61%
  Not preferred 104
33%

30%
Television Preferred 143
46%

42%
  Not preferred 171
54%

50%
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