Custody, Access and Child Support: Findings from The National Longitudinal Survey of Children and Youth

III - WHEN PARENTS SEPARATE: CANADIAN CHILDREN FROM BROKEN FAMILIES AND THE LAW (continued)

Existence of Court Orders for Custody and Variations by Time Since Separation, Type of Separation and Region of Canada

Table 3 provides a breakdown of the frequency with which court orders were obtained for the custody of the children. In Canada as a whole, parents reported they had a court order or that they were in the process of obtaining one, in 48 percent of the cases. However, this percentage is not the same across the country. It is lower in the Prairies and B.C. (42 percent) and higher in Quebec (58 percent).

Table 3: Distribution of Children According to Whether a Court Order for Custody Exists, by Region, Type of Broken Union and Time Elapsed Since Separation--NLSCY, Cycle 1, 1994-1995
Court Order Court Order in Progress Not Submitted to the Court Total N 1
Canada 37.4 10.1 52.5 100.0 3295
Atlantic Provinces 44.0 4.7 51.3 100.0 253
Quebec 29.7 28.5 41.8 100.0 811
Ontario 39.4 5.0 55.5 100.0 1213
Prairies 39.1 2.9 58.0 100.0 563
British Columbia 40.0 2.5 57.6 100.0 456

Type of broken union
Court Order Court Order in Progress Not Submitted to the Court Total N
Common-law 27.9 11.9 60.2 100.0 1175
Marriage, common-law before 42.4 9.4 48.2 100.0 1141
Marriage, no common-law before 44.1 7.8 48.2 100.0 927

Time elapsed since separation
Court Order Court Order in Progress Not Submitted to the Court Total N
Less than 1 year 15.7 11.3 73.0 100.0 566
1-2 years 29.3 10.4 60.3 100.0 906
3-4 years 43.2 12.6 44.2 100.0 761
5 years and over 51.7 7.3 41.0 100.0 1062

1. N = Weighted data brought back to the original sample size.

It is perhaps surprising that court orders for custody (including court orders and court orders in progress) are obtained more frequently in Quebec than in the rest of the country. As Table 3 indicates, court orders are more likely to exist where the parents were married at the time of separation (52 percent) than where they were living common-law (40 percent). Consequently, one might have expected the existence of court orders for custody to be less frequent in Quebec, given the greater number of common-law unions and the fact that children from these broken unions constitute a greater proportion of children from broken families. However, in Quebec a separation judgment must be granted for the separation agreement to be recognized in law and enforceable, therefore court orders are the norm whether or not the couple was married.

As would be expected, the lower portion of Table 3 shows that the number of cases in which parents said they had a court order rises as the time elapsed since separation increases: in the first year after separation a court order for custody exists in only one case out of four, and after five years, the percentage has risen to 59 percent. It is clearly very important to allow for the passage of time in examining these issues to avoid drawing incorrect conclusions from the survey data. "Five years and over" probably represents an accurate dividing line to distinguish parents in terms of the likelihood of using the courts to formalize their arrangements for custody or child support. If parents do not have a custody order after five years, it seems fair to assume that these parents are unlikely ever to seek recourse to the courts.[4]

Table 4 illustrates the impact of the type of parental separation on the likelihood of having a custody order. Five years or more after separation, children of separated common-law parents (52 percent) and children whose parents were married and separated but not yet divorced at the time of the survey (63 percent) were much more likely not to be covered by a court order for custody than children whose parents had actually divorced (29 percent).

Table 4: Percentage of Children from Broken Families for Whom a Court Order for Custody Does Not Exist, According to the Time Elapsed Since Separation and the Type of Parental Separation--NLSCY, Cycle 1, 1994-1995
  Time Elapsed Since Separation (N)
Type of Parental Separation Less Than 1 Year 1-2 Years 3-4 Years 5 + Years Total
Divorce - ( 20) 29.9 [2] 27.9 [8] 28.8 [9] 30.1 [8]
Marital separation 70.4 [2] 68.4 [2] 52.5 [9] 62.8 [3] 65.6 [5]
Common-law separation 73.7 [8] 65.8 [3] 55.2 [3] 51.9 [1] 60.2 [5]
Total 73.0 [6] 60.3 [6] 44.2 [1] 41.0 [2] 52.5 [5]

Note : Results based on less than 25 cases are not presented.

Again, one may ask whether the situation is the same across the country. In particular, do children from broken common-law unions in Quebec experience similar situations to children in the rest of Canada? Figure 9 compares children in Quebec and the rest of Canada in terms of the likelihood of not having a court order for custody by the type of parental separation.

Figure 9: Proportion of Children Whose Parents Have Been Separated for at Least 5 Years and for Whom a Custody Order Does Not Exist, According to the Type of Parental Separation--Quebec and Rest of Canada--NLSCY 1994-1995

Figure 9: Proportion of Children Whose Parents Have Been Separated for at Least 5 Years and for Whom a Custody Order Does Not Exist, According to the Type of Parental Separation--Quebec and Rest of Canada--NLSCY 1994-1995

[ Description ]

As might be expected, parents in Quebec more often report having a court order for custody than do parents from other parts of the country. The impact of the requirement to obtain a separation judgment formalizing the separation agreement is evident: five years or more after separation, parents reported that they did not have a court order for custody in only 37 percent of cases. This compares to 43 percent for the rest of Canada. The difference is especially marked for children whose parents were living common-law at the time of separation (43 percent in Quebec versus 57 percent in the rest of Canada), or for children whose parents had married but were not yet divorced (54 percent versus 66 percent). Detailed data show that not only is there more often a court order for custody in Quebec, but that it is obtained sooner after separation than elsewhere in Canada. This makes sense given that fewer divorces use the grounds of one year of separation in Quebec and that, as we have seen above, all separation agreements must be ratified by the courts to have any legal status.

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