Report on Family Law Research in Nunavut

5. CONCLUSIONS

During this time of political reinvention, there is a major drive to ensure that law and services are appropriate for the Inuit majority and consistent with Inuit Qaujimajatuqangit. There is a strong commitment to broad-based Inuit participation in both legislative and program reform, with community participation and direction linked to culturally and linguistically accessible programs. Equally is the need to address family justice goals in a holistic manner.

The strength and well-being of families almost always reflects underlying social and personal conditions. The distribution of the population into small, isolated and close-knit communities is a social fact underlying both individual and family ways of life and public sector activity. A large proportion of the population of Nunavut confronts serious social issues that intersect with family law. These issues may contribute to and complicate family breakdown: young parenthood, domestic violence, unemployment, under-housing and generalized poverty, and serious health issues, including depression, suicide and addictions. Changes to family law and its processes stand little chance of ameliorating these conditions except to the extent they are integrated into a broader network of general community resources.

The legal framework of family law has undergone tremendous changes in the last five to ten years. With the creation of Nunavut, changes to the formal justice system include a unified court structure and strengthened community justice institutions, including expanded roles for justices of the peace and community justice committees. To date, however, these developments have not had a significant impact on family law issues. At the same time, broad legislative change has occurred in family law. Territorially, the first legislation to officially recognize custom adoption was enacted and is in force throughout the territory. In 1998, legislation came into force that provides for vastly expanded rights for common-law partners, broader scope for domestic contracts, and significant clarification of custody and access law and the factors relevant to a "best interest of the child" determination. The federal and territorial child support guidelines came into effect, providing a fair and simplified means of calculating amounts of child support owed in individual cases.

Our research shows, however, that at this point these major changes have not necessarily affected family life in reality. It shows that in most cases, families are not turning to the courts when breakdowns occur. Nor, indeed, do they look to the law in many cases when formalizing the creation of new families. It is also notable that the law remains silent, by and large, with respect to the relationship between extended family members, which is so crucial in Nunavut.

5.1   Research Results: Changing Families

Our results clearly showed the centrality of the extended family in Nunavut. In different households a wide range of relationships go far beyond the nuclear family. Just under half of Nunavut households include extended family members such as grandparents, adult siblings, and others. It is striking that this broad social phenomenon receives so little legal recognition. It may not be appropriate to engage in law reform to change this situation, but there is certainly an opportunity to publicize existing rights-particularly the rights of non-parents to apply for support or custody when appropriate-to validate the work that is being done within these larger family units. Because so many people have significant involvement in the raising of a child, it is important to be cautious about reforms that could negatively affect their real interest in ensuring a continuing relationship with that child after family breakdown.

The extremely young age at which many Nunavummiut become parents for the first time is consistent with the inter-generational family pattern. It is also problematic in several respects, as young parenthood is frequently associated with greater poverty and lack of access to justice. There is a strong need to bring family law education into the school curriculum, and to ensure that any planned legal outreach takes place both at the high school and college levels in order to improve the chances of these young parents having access to the family law system.

One major area in this study was the institutionalization of custom adoption in Nunavut, which is extremely prevalent in the territory. About one quarter of Nunavummiut are adopted by traditional custom. Furthermore, our research suggests that custom adoption is well-understood and commonly used across the territory. Decision making is seen to be vested in families and within communities, not in outside systems. There appear to be relatively clear parameters for decisions about adoptions, and a relatively strong understanding of the responsibilities of different parties in the process. But while custom adoptions are much more open than judicial adoptions, parental obligations have not been imposed on parents who have adopted out, so there has been little intersection between custom adoption and the rest of family law.

One indicator of the limited role of the formal legal system in family life is the increasing numbers of common-law relationships. Common-law relationships are far more common in Nunavut than in the rest of Canada. Within Nunavut, common-law relationships are qualitatively different from marriages in several respects. They appear to begin at a younger age and not last as long as formal marriage. By and large, partners have a greater level of income equality in common-law relationships than marriages, and far more frequently live in shared households than married people. From a research perspective, we encountered difficulties gathering important information about common-law relationships. For example, people rarely identified themselves as participants in former common-law relationships, and they tended to define common-law relationships in ways not always consistent with legal definitions (such as two-year duration requirements.)

5.2   Research Results: Separation and Divorce

The research showed slightly lower levels of both separation and divorce in Nunavut than in the rest of Canada. There was only limited information gathered about respondents' relationship history and about the causes of separation. However, many informants discussed with us significant issues associated with temporary separations and decisions by individuals to get back together.

At present, the research shows that few people pay or receive spousal support in Nunavut. Nevertheless, there appeared to be strong backing for the principle of support and division of property as a matter of fairness, and as an important resource for children. Limited support claims likely reflect a general lack of knowledge about rights to spousal support or division of property, and a lack of access to the courts. The scarcity of support claims may also reflect broader social factors, particularly fewer payments between spouses because of low income disparities between spouses, low overall incomes, and the complex economics of extended family units.

A much more problematic issue regarding separation is the question of housing. The housing shortage in Nunavut is itself a major family law issue. A person leaving a relationship literally has almost nowhere to go. This problem is exacerbated when there are power struggles and imbalances in the relationship, particularly if only one person wants to get out of it and there are children involved. This is a clear instance in which early community-level intervention may be a useful way to address one of the main practical issues facing separating couples. It is possible that civil order of protection proceedings, including remedies such as orders excluding a perpetrator of violence from the home, may assist in minimizing the displacement of children in a violent family break-up.

The important issue of violence in relationships was not extensively explored in our study. Although there remains a shortage of services to meet the needs of victims of violence, it is clear that, to date, this is one of the major areas of family law service development. Better integration between criminal law programs to protect family members from violence and civil remedies should be explored. Strengthening access to justice to address practical issues such as the responsibility of caring for and supporting children, the equitable division of property, and financial support for spouses who have been financially disadvantaged by the relationship, can only benefit all separating couples and also help victims of violence gain independence from their batterers.

Research showed that Nunavut families include more children, on average, than most average households in the rest of Canada. Furthermore, children are raised in a variety of family types. Although the proportion of children who are being raised in two-parent families is roughly comparable to the rest of Canada, far more of them are being raised by common-law parents than in the rest of Canada-almost three times as many as a proportion of the population. Lone parents are still mostly female, in Nunavut as in the rest of Canada, although there are a number of significant differences from Canadian averages. A large proportion of lone parents do not identify themselves as ever having been married or in a common-law relationship. This may account for results that suggest that "blended families" are very common across the territory (comparable to the Canadian average) even though the separation and divorce rates are lower than in the rest of Canada. Also notable is the fact that about half of lone-parent families live with other adult relatives.

A significant number of parents report having children who do not reside with both parents. The sample size made it difficult to draw firm conclusions about children's relationships with non-residential parents. Where visits are continued, most are daytime visits, and fewer parents report overnight stays or only telephone contact. In almost one fifth 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 great distance between Nunavut's isolated communities. Parents surveyed did not express high levels of dissatisfaction with contact arrangements between non-residential parents and their children.

Results, however tentative, concerning child support are somewhat disturbing, both in terms of levels of support being received and the effectiveness of existing services. A minority of custodial parents report receiving child support, and a slightly larger minority of non-custodial parents report paying it. The Maintenance Enforcement Program has considerably expanded in the last 10 years and is currently quite successful at receiving payments for its open cases. However, research revealed disturbing information about the program. MEP is involved in only a small percentage of cases in which parents report that support is actually being paid, and notably, Nunavummiut recipients comprise only a minority of recipients at this time. Finally, public knowledge about the program is very limited.

One of the most striking findings of the research is the low frequency of court use and also the infrequency of any arrangement between parents related to the care of children after separation. This problem did not appear to be merely a question of people's knowledge of legal rights, for many respondents suggested they were familiar with at least broad legal principles on key issues like child support or the division of property. Overall, respondents reported relatively little contact with services. The most likely reason for this is the scarcity of services available at the community level. Faced with a choice between a social worker (who may also be a parole officer) or child welfare worker, the church, the RCMP and a court worker with only criminal law expertise, it appears that a large number of people resolve their problems without external support. At the same time, it was surprising that so few respondents said they had turned to informal networks such as friends or family.

5.3   Application of Findings

There has been relatively little research on private family law issues among Aboriginal groups in Canada. Instead, much of the existing family law research in this area addresses the near-crisis of child welfare in different jurisdictions. From our literature review, this appears to be the first large-scale study in a predominantly Aboriginal population on issues of family formation and make-up, separation and divorce, and related services. In civil law, existing information has not yet been disaggregated for the Aboriginal population at large or for particular groups.[128]

This study suggests a number of important differences between the norms operating among the predominantly Inuit population in Nunavut and norms across the country as a whole. To some extent, the data we collected may be consistent with those for other Aboriginal groups. Low levels of engagement with the civil legal system, the prevalence of extended family households, problems caused by housing shortages and poverty, and a shortage of accessible services are all common issues in Aboriginal communities. It is possible that some of the implications of these data for policy development-briefly explored in this paper-may also have application for other Aboriginal groups.

That said, it would be inappropriate to assume too many similarities between the results of this study and any among other groups in Canada. As every major study of Aboriginal peoples in Canada has concluded, it is always a mistake to underestimate the significance of differences between First Nations, and between First Nations, Inuit and Métis. In particular, the geographical, political and social context of Nunavut is unique. Not all Aboriginal persons live in isolated and relatively homogenous communities. Most groups are organized on a different political model, and most have some vestige of band-style organization. No other Aboriginal people have such a significant voice in the laws governing their territory. It goes without saying that community histories vary as do histories of colonization.

The results in this survey offer a strong argument in favour of additional research in a range of Aboriginal communities and regions across Canada. As is widely recognized, most Aboriginal peoples and individuals feel their experiences are already too much the subject of research, and that too often no action results, or actions are taken that do not involve them. Accordingly, it is important to consider how to strike a balance between developing a sufficient research base to ensure that the needs of Aboriginal peoples are considered regarding family law, while ensuring that the research is, and is perceived to be, relevant to the affected groups.

5.4   Implications for Policy and Program Development

It is an inescapable conclusion that the civil family law regime now in place (the Divorce Act, Children's Law Act or Family Law Act) is not affecting the majority of Nunavummiut by means of judicial decision making. If at all, it affects people as they internalize norms about fair and reasonable arrangements for themselves, their former partners, and their children during transitions in their family relationships.

It is just as likely, however, that non-statutory norms-cultural and otherwise-may be at play. Consistency in existing working arrangements would tend to suggest a strong set of norms; lack of consistency would reflect competing norms as well as widely differing circumstances. Although these informal norms are sometimes visible-adoption, and the participation of extended family members-our research did not reveal consistent patterns relevant to family breakdown. Except in the area of child support, the research in this paper is inconclusive about whether families in Nunavut are regulating their break-ups in a way that is consistent with the law or the principles underlying it. Additional, focussed qualitative research would be necessary in order to better understand the factors at play when decisions are made about the well-being of children and obligations between partners upon separation.

It is a strong conclusion of this report that there is a need to work towards a non-court based system, accessible at the community level, to address family law issues. In order to improve access to the system, it will be necessary to improve both public and legal education and family law services.

A number of aspects of the data strongly suggest that an essential element of a successful program will be an ongoing presence in most Nunavut communities. People are most likely to use programs that are close at hand and that allow face-to-face contact. The success and ubiquity of the custom adoption process in the territory suggests this conclusion, as do the relatively infrequent use of and scant knowledge of more centralized services. Benefits of such a presence would include improved information at the community level and also the improved ability of people to get the relief and support to which they are entitled.

In the Family Law Strategy (Appendix 4), which also emerged out of this research, the Nunavut Department of Justice committed itself-with support from the federal government-to train community based 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.

Mediation is an approach that offers significant benefits in the context of Nunavut. It has the advantages of decreased formality and adversarialism relative to the formal court system. And it may preclude some conflict of interest faced by overloaded social service providers or courtworkers who are expected to represent a person. Obviously, in a family law context and where violence may be a significant issue, there will need to be safeguards in place. Moreover, community mediation alternatives-no matter how much they may improve access to justice and transform people's experience of the justice-cannot replace legal representation and court resolutions in some cases.

There is a need for more lawyers practicing family law in Nunavut. This is a priority in both the short and long term. In time, it is to be hoped that there will be Inuit lawyers who will help change the face and language of the practice of law in the territory and strengthen its presence there. It is also probable that as this change of personnel takes place, both as front-line legal representatives, professionals and para-professionals, and policy workers, that the direction of family law will continue to evolve.

A matter for future consultation is how-in practice and in principle-new community family law resources will balance statutory norms with Inuit Qaujimajatuqangit and other non-statutory norms. It is hoped that in doing so they will be able to achieve a holistic or pluralistic approach to problem solving, children's well-being and fairness in family law issues.

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