Report on Family Law Research in Nunavut

EXECUTIVE SUMMARY

This research paper on Family Law in Nunavut was prepared for the Nunavut Department of Justice and the Department of Justice Canada, Family Children and Youth Section. The research was conducted in cooperation with Maliganik Tukisiniakvik Legal Services Clinic, part of the Nunavut Legal Services Board.

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

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

The research included a review of existing statistics, a detailed family history survey of 342 households in Nunavut, a service inventory conducted by telephone in 17 Nunavut communities, public meetings and interviews in five communities, and discussions and cooperation with the Nunavut Law Review Commission, Maligarnit Qimirrujiit.

Context

Chapter 2 reviews the contextual factors that have a major influence on family histories, the delivery of services, and the application of family law in the territory.

The report was undertaken at a time of major political change in Nunavut, starting shortly after the creation of a new territorial government in April, 1999. The new government has been committed to political change, in particular, the development of law and services that better reflect the lifeways of the Inuit majority and a philosophy of "Inuit Qaujimajatuqangit" (IQ), traditional and appropriate ways of doing things. Recent policy statements as well as past sociological studies clearly point to strengthening the family as an essential aspect of IQ.

The extreme climate, the relative isolation and the small, close-knit nature of Nunavut communities have a serious impact on the planning and delivery of services and the development of a common base for legal information. Inuit culture and language are vibrant and provide a normative foundation for those who seek to address family law issues. There is often considerable overlap in addressing family law issues and other serious social issues, including poverty and unemployment, overcrowded housing, and poor health. Rates of reported violence against women are extremely high, and this has a strong effect on local perceptions about the need for family law solutions.

There are significant obstacles to development of a responsive family law system within the current legal system. Again, because of isolation and distance, all communities except Iqaluit are served by a circuit court system; lawyers and court staff arrive from afar intermittently in communities. Crowded dockets and a low priority given to family law mean that it is rare for family law cases to be heard. Further, the close association between child welfare and civil family law may discourage some people from turning to the courts to address their family law problems. These factors all contribute to overall alienation from the system. Reforms such as the development of stronger community justice committees, more and better trained justices of the peace, the hiring of family lawyers in the regions, and a unified court with more resident judges may all contribute in the long term to improving access to family justice.

A discussion of the legal context for the community-based research in Nunavut includes an overview of recent law reform in the territory and the custody and access reform process nationally. New territorial legislation has created a changed framework for family law in principle; however, there is work to be done before these changes will have any observable impact.

Research Results: Family Life

Extended families

The household structure and composition in Nunavut reflects Inuit cultural norms. Households are generally larger than in the rest of Canada. Most people live in households of between three and five persons, and nearly one third of respondents live in households of more than six people.

It is extremely common for households to include extended family members. Thirteen percent of households include a parent, stepparent or adopted parent or parent-in-law of a respondent. Just under one fifth of respondents reported the presence of a sibling or stepsibling. Almost 10 percent of respondents were living with a grandchild and just over 10 percent of households included some other type of relative. Very few people (only 3 percent of respondents) reported living with a non-relative.

One factor in the prevalence of the extended family in Nunavut may be the relative youth of people becoming first-time parents. Almost 20 percent of respondents had their first child when they were age 17 or younger; more than half had their first child before they were 21. The purpose of extended families in one household have numerous family law and information implications. For example, most people did not know that non-parents could seek custody or access, or support, for the children they are raising. The social welfare system (housing, income support) appears to operate on the basis of factual caregiving arrangements rather than legal custody.

Adoptions

Custom adoption is perhaps the most unique aspect of the Nunavut family law system: it is extremely widespread. Twenty-two percent of respondents in our survey reported having raised adopted children. In fully half the cases, respondents had raised more than one child. Another quarter of respondents reported having given a child up for adoption; fully one third of women respondents reported that they had "adopted out" a baby. Twenty-three percent of respondents reported they were adopted themselves. Of those, 93 percent reported that they were adopted through custom adoption and only 7 percent reported use of a court process.

Custom adoption operates on the basis of a distinctive legal regime, which has been recognized by the Northwest Territories Supreme Court. It differs at the level of process: the role of the court is limited to producing evidence of an adoption that took place between the parties, without requirements such as a home study. As well, custom adoptions appear to operate on the basis of a number of substantive considerations, and not just a single standard such as best interests of the child. While the Law Review Commission reports a number of concerns about custom adoption, it nevertheless appears be the only widely used, well-understood family law institution in the territory at this time.

Marriages and Common-Law Relationships

Approximately a third (31 percent) of respondents reported living in common-law relationships, far above the Canadian norm. Even more strikingly, a very significant number of people reported that they had, at one time, been part of a common-law relationship (63 percent of respondents). At the same time, 38 percent of respondents reported that they are currently married, which is lower than the Canadian average. Fewer than half of unmarried respondents expect to marry one day.

As in the rest of Canada, marriages tend to start later and last longer than common-law relationships. Notably, the average age at which respondents reported starting either marriage (24) or common-law relationships (21) is considerably older than the age at which they are reporting first having children.

Most married (88 percent) and common-law (83 percent) respondents reported that their partner had been single before the current relationship. Twelve percent of married and twenty percent of common-law respondents reported that their partners had children from previous relationships. Almost twice the number of men reported that their partners had brought children from prior relationships into their current relationships than women did.

Separation and Divorce

Overall, rates of separation and divorce in Nunavut are lower than the Canadian average; the rate of divorce is notably lower, which may reflect access to justice concerns. In our survey, of people who were ever married, about 4 percent reported being separated, and about 4 percent reported being divorced. Five percent stated that they had been widowed. It was harder to determine the number of cases of people separating after a common-law relationship.

Social service providers reported considerable numbers of temporary separations, however, we were unable to obtain significant quantitative information about these separations. Reasons often cited anecdotally for people returning to relationships include the difficulty of leaving the community, the inability to find housing or employment, love, and concern for the children. Traditional stories or unikattuaq reinforce the fact that temporary separations are nothing new in Nunavut.

Although data were limited, respondents reported a variety of reasons for their own separations or divorces, including incompatibility, adultery and addictions issues. Notably different were public discussions, where the most widely discussed reason for separation is violence. At this time, it is notable that most public services related to relationship breakdown focus on short-term safety rather than long-term independence.

Very few of those who were divorced or separated reported paying or receiving support, regardless of whether they had been married or common law. Slightly more divorced people paid or received support than those in common-law relationships.

Only half of respondents were aware of common-law spouses' rights to support and division of property after the breakdown of a relationship. In community meetings, it appeared that few people differentiated between spousal support and child support. Income disparity between men and women in Nunavut is not as extreme as in the south, and low incomes overall may contribute to the fact that support is rarely paid. Furthermore, the active role of extended families may diffuse the support obligation.

About two thirds of respondents were aware that there is a right to apply for a division of marital property, however, there have been no reported division of property cases in the territory. Since the largest asset of most families in Canada is the matrimonial home, it is notable that only about a quarter of Nunavut residents own their own home. More contentious, and more intractable, issues relate to questions of occupancy of the matrimonial home, which is very challenging in light of the acute housing shortage and waiting lists for public housing.

Children in Families

Overall in Nunavut, families with children make up a greater percentage of the population than in the rest of Canada (77 percent, and there are more children in each family), in our survey an average of 3.5. There are also notable differences in family structure: married couples with children make up 43 percent of all families with children, common-law families with children represent 27 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: 22 percent of all families with children. Most lone parents in Nunavut are women, about three quarters. A larger proportion of lone parents are single (never married) in Nunavut than in the rest of Canada. Almost half of lone parents live with other relatives, significantly shifting the widespread image of single parenthood as "going it alone."

We had some difficulties with our data on children's family histories, which limits the accuracy of the following figures. However, they may be broadly representative. Respondents were asked to identify whether they lived with their children, full-time, part-time or not at all. Eighty-five percent of respondents reported that they lived with a child all of the time, two percent lived with at least one child part of the time and twelve percent said at least one of their children does not live with them. Of those with at least one of their children not living with them, eight reported that they gave up the child for adoption.

Approximately 60 percent of parents living with their children all the time reported that the child's other parent was also part of the household. A significant number-approximately a third-of parents not living with their child reported that the child lived with someone other than the other parent.

Eighty percent of non-residential parents reported continuing contact with their children. The most frequent type of contact was daytime visits. Fewer people reported that they had overnight visits or merely telephone contact. Just over half the parents reported living in the same community as their children. Of those parents who had lost contact, most but not all lived in a different community. Approximately half of those living farther away stayed in touch by telephone or letter.

Overall, there appeared to be relatively low levels of dissatisfaction with arrangements concerning contact. Only four out 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. Very 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, even by simply discussing it with the other parent. About two thirds of respondents were aware that they could go to court to challenge a decision about custody or access to children.

Child support has been a major territorial and federal priority for the last several years, however, only a small minority of respondents reported paying or receiving child support. Of those receiving support, most said they received it fairly regularly (monthly), but a significant number received support more intermittently.

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 are still family, and the existence of an agreement as reasons to pay support. Several reasons were given for why some parents did not pay support. The largest number of parents said that they did not pay support because they had not been asked to. Several people said they were not paying because they had no obligation to pay 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. Of those entitled to receive support but were not receiving it, about two-thirds had not asked for it.

These results can be compared with actual orders and enforcement activities in the Maintenance Enforcement Program (MEP). As of January 2001 there were 166 open files in the Nunavut office. Of those files, only about a third were "all-Nunavut" cases, with both the payor and the recipient living in Nunavut. Overall, fewer than half the recipients (only 81) live in Nunavut.

It appears that more people are paying support than are registering orders or agreements with the Maintenance Enforcement Office, but it is impossible to quantify the amount of transfers between parents. One factor accounting for the relative non-use of Maintenance Enforcement Services is a lack of knowledge. Only about 16 percent of respondents had heard of the MEP. A notably larger number of people (27 percent) were aware that the government provides child support enforcement services. Despite major progress in collecting arrears in the last two years, there continue to be problems with high levels of arrears and a significant number of orders that should be modified to reflect a change in circumstances.

Research Results: Process, Services and Information

Almost 60 percent of lone parent, separated or divorced respondents with children reported that they had never had an agreement or arrangement about their children with another person. Just as strikingly, 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).

Slightly less than one third (21) of respondents said they had turned to outside assistance when they were separating; the remaining two thirds (45) said they had not sought assistance. Of those who had received assistance, nine had turned to a social worker, eight had turned to a lawyer, and four said they had turned to a friend, relative or elder (there was some overlap between these groups).

The stark reality of Nunavut life is that there are very few social services available locally in most communities. Services tend to be concentrated in the larger communities and regional centres, and even their resources are limited. Services are rarely specialized, and service providers are typically overburdened. Social workers, mental health workers, community justice committees, youth groups and church groups are the major resources available at the community level, however none of these are available in every community.

Overall, 72 percentof all respondents said they had never used any of the services we asked about for family problems. The definition of a family problem in the minds of our respondents was broader than we had anticipated and went well beyond the bounds of private family law.

There was remarkable consistency at community meetings about what services people thought were valuable. There were three main messages. There was a widespread demand for more counselling services. Participants felt that legal information, without services, would not significantly improve the family law situation. Third, at the time the survey was administered, legal services were not perceived to be available when they were needed.

Based on these difficulties, this report strongly concludes that 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, which also emerged out of this research, the Nunavut Department of Justice committed itself (with support from the federal government) to training mediators who would have a strong basis in family law principles as well as mediation skills. Several aspects of this plan need to be worked out in greater detail.

In the survey, a lawyer was the preferred a source of information about family law issues. Practical difficulties in obtaining legal representation, including the scarcity of lawyers, conflicts of interests and the circuit system, remain staggering.

Lack of information is a major problem, but it is not the primary obstacle facing Nunavummiut as they attempt to resolve family law disputes. However, there certainly is room to expand people's knowledge of their rights, such as:

  • 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 those rights, and about how they would prefer to get information about separation and divorce. Most people recommended radio as the best tool for public legal education and information. It was clearly stated that information without options for active follow-up would not be useful. This is consistent with survey results showing that lawyers are the preferred means of obtaining information.

Conclusions

The research has shown a need for considerably more research on family law issues in Aboriginal communities. Notable differences between Nunavut and the Canadian norms raise intriguing questions about similarities and differences between Aboriginal groups. Qualitative research about IQ (Inuit Qaujimajatuqangit) and traditional family norms is definitely an area for further research. Finally, considerably more theorization and documentation relating to the impact of extended family structures of family law doctrine and services are also necessary. In the short term, however, further quantitative research in Nunavut should take a back seat to the development of services.

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