The Child-centred Family Justice Strategy:
Survey on the Practice of Family Law in Canada 2004-2006

2.0 Survey on the Practice of Family Law in Canada (Continued)

2.4 Best Interest Criteria

Currently, subsection 16(8) of the Divorce Act provides that in making a custody order, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs, and other circumstances of the child. All respondents to the 2006 and 2004 surveys were asked whether, in their experience, most parenting arrangements that are made through specific processes are consistent with the best interests of the child. The results are presented in Appendix C, Table C8. According to the 2006 respondents, the processes most likely to be consistent with the best interests of the child are arrangements negotiated by lawyers (82 percent), and arrangements made as a result of mediation (82 percent). The process respondents thought was least likely to be consistent with the best interests of the child was an arrangement made by a judge after a trial or hearing (60 percent) and arrangements resulting from collaborative family law (60 percent). Main differences between the 2006 and 2004 results indicated that respondents to the 2006 survey were more likely to state that arrangements made by parents themselves and arrangements made by a judge are consistent with the best interests of the child. Also, in 2006, respondents were less likely to state that arrangements resulting from collaborative family law are consistent with the best interests of the child.

Respondents were asked if the provincial/territorial legislation in their jurisdiction included specific criteria for determining the best interests of the child. Of the 155 individuals who responded to this question, 74 percent said yes and 26 percent said no. The proportion responding affirmatively in 2006 was higher than in 2004 (63 percent). Respondents who answered yes were also asked if they use those criteria in cases under the Divorce Act, and the vast majority (91 percent) of the 114 respondents to the 2006 survey said they did.

All survey respondents were asked, in their experience, when parents are aware of the negative effects of separation/divorce on their children, does this awareness affect parental behaviour. While the majority of the 145 respondents to the 2006 survey said it did (64 percent), a somewhat surprising 35 percent of the respondents said no. However, a greater proportion of the 2006 respondents said that this awareness affects parents' behaviour than did the 2004 respondents (56 percent). When asked to explain their responses, 105 respondents to the 2006 survey offered 118 reasons. The most common responses were: even when parents are aware, they have difficulties changing their behaviour (n=20) and the emotional and/or financial repercussions of the separation interfere, and parents can't get past their anger (n=16). As one respondent put it, "Usually parents are too close to their own pain." Another stated, "Parents who are determined to have control will continue to cause conflict even though they recognize that this hurts the child." A respondent who believes that awareness changed parents' behaviour commented, "I have seen clients fundamentally change their behaviour after receiving information regarding the effects of separation/divorce."

Respondents were asked if, in their opinion, parenting plans (i.e., a detailed written plan jointly developed by parents to address their child's care and needs) are a good mechanism for ensuring that the best interests of the child are met. Three-quarters (75 percent) of the 2006 respondents said in most cases yes, 13 percent said yes in high conflict cases, and 5 percent said yes in all cases. Ten respondents (7 percent) did not think parenting plans are a good mechanism for ensuring that the best interests of the child are met.

Survey respondents were asked in what proportion of their cases with children involved are parenting plans used, and the responses in the 2006 survey varied widely (n=144). The mean response was 31 percent, and the median was 20 percent. These figures were the same in the 2004 survey. When asked if they have a form that they use as a guide for parenting plans, over one-third (35 percent) of the 141 lawyers who responded in the 2006 survey said they did. Lawyers who reported that they didn't have a form were asked if they thought a guide would be useful, and 84 percent of the 88 respondents said it would.

The use of parenting plans was further explored when the survey asked respondents (excluding judges) how helpful parenting plans were to their clients. In general, respondents to the 2006 survey found parenting plans helpful: 48 percent said they were somewhat helpful; 38 percent said they were very helpful; and 14 percent said parenting plans were not very helpful. In comparison to the 2004 data, a smaller proportion of lawyers stated in 2006 that parenting plans were very helpful (45 percent in 2004) and a larger proportion indicated that they were not helpful (9 percent in 2004).

When asked to explain their answers, 70 respondents to the 2006 survey made 72 comments. The most frequent comments provided included: parenting plans are still very new and are unfamiliar to clients (13 percent) and parenting plans are not very helpful because each situation has its own unique twists and the plans tend to be too general (6 percent). Examples of comments from respondents who thought parenting plans were not very helpful were: "They can be too rigid—not enough flexibility as the needs of the children and family change," and "They are only useful for high conflict cases." A respondent who answered that parenting plans were somewhat helpful said, "If parents are having trouble getting along, a parenting plan provides some structure and guidance." A respondent who thought parenting plans were very helpful commented, "It helps [parents] focus on what are truly issues related to children—not parents' issues which they are trying to project on children."

2.5 Child Representation

The United Nations Convention on the Rights of the Child provides for the right of the child to participate in decisions that affect his or her life. Respondents to both the 2006 and 2004 surveys were asked what they thought are the best mechanisms to enable children to voice their views. The two mechanisms that were chosen by most respondents in both surveys were legal representation for the child (71 percent in 2006; 65 percent in 2004) and assessment report (70 percent in 2006; 74 percent in 2004). About one-third of respondents (37 percent in 2006; 34 percent in 2004) chose non-legal representation for the child, and about one-fifth (21 percent in 2006 and 2004) chose judicial interview. Very few respondents chose the alternatives of testimony of the child (4 percent in 2006; 3 percent in 2004) and legislative provision that parents should consult their children respectfully when making parenting arrangements upon separation (5 percent in 2006; 3 percent in 2004).

Interestingly, even though comments on these mechanisms were not solicited, some survey respondents felt very strongly about two of the mechanisms. Regarding a judicial interview with the child, respondents' comments were definite, including: "No, no, no, no, no, no" and "Absolutely not." Likewise, regarding testimony by child, some respondents commented: "NO, NO, NO! A thousand times NO," and "Never."

One respondent made the following comment regarding the voice of the child:

Children's voice is not heard. Judges are very hesitant to order no/limited access even when children are begging for it...If Children's Aid is not involved, presumption is parents should always have contact, but CAS doesn't intervene if at least one parent is protecting [the child], so it doesn't therefore make sense that the other parent always deserves access...Just because CAS doesn't see fit to get involved doesn't mean both parents are fit to be involved.

When respondents to the surveys were asked which factors are most important when deciding what weight should be given to the child's views, they were very supportive of all the factors listed in both the 2006 and 2004 surveys. Specifically, respondents to the 2006 survey thought the following factors were important: age of child (88 percent); child's reasons for views (87 percent); ability of child to understand the situation (85 percent); indication of parental coaching/manipulation (84 percent); the child's emotional state (81 percent); and ability of child to communicate (76 percent).

Respondents were asked how much weight should be given to the preferences of a child regarding custody decisions at specified ages. The patterns were similar in the 2006 and 2004 surveys and indicated that, predictably, the older the child, the more weight respondents thought should be given to their preferences (see Figure 2.6).

While 62 percent of respondents to the 2006 survey thought no weight should be given to children under the age of 6 years, 69 percent thought the preferences of 6- to 9-year-old children should be weighed lightly, and 92 percent thought the preferences of children 14 years or over should be weighed heavily. For the age group of 10 to 13 years, 53 percent of the respondents thought their preferences should be weighed lightly, and 45 percent thought they should be weighed heavily. Several respondents commented that "it depends on the circumstances."

Figure 2.6 Respondents' Views on How Much Weight Should be Given to the Preference of Children at Specified Age Ranges, 2006 and 2004

2.6 Custody and Access

The issue of terminology for post-separation parenting arrangements has generated a lot of interest in recent years. Respondents were asked how often they use terminology other than "custody" and "access" in their agreements. The majority of respondents to the 2006 survey said that they do use other terminology with 36 percent stating that they often use other terminology, and 25 percent stating that they almost always use other terminology. Only 13 percent stated that they rarely use other terminology in their agreements, and 26 percent said they occasionally use other terminology. This pattern was similar to that observed in the 2004 survey, with the exception that fewer respondents in 2006 stated that they often use other terminology (50 percent in 2004) and a greater proportion of respondents stated that they rarely use other terminology (10 percent in 2004), suggesting somewhat less use of alternate terminology in agreements by the respondents to the 2006 survey.

As revealed in both the 2004 and 2006 surveys, there was clearly less use of alternate terminology in orders than in agreements. The majority of respondents stated that they rarely (24 percent in 2006; 26 percent in 2004) or occasionally (28 percent in 2006; 38 percent in 2004) use alternate terminology in their orders. Over one-quarter of respondents (31 percent in 2006; 27 percent in 2004) said that they often use alternate terminology in orders, and fewer (17 percent in 2006; 8 percent in 2004) said that they almost always use alternate terminology in their orders.

The survey asked respondents if legislative amendments to the Divorce Act were to be introduced to replace the terms "custody" and "access" with "parenting order," which includes decision making responsibilities and parenting time, to what extent they thought this would promote a less adversarial process. Three-quarters of respondents to both the 2006 and 2004 surveys thought that legislative changes would have an effect, with 42 percent of the 2006 respondents indicating it would have somewhat of an effect (50 percent in 2004), and 32 percent indicating that it would affect the process to a great extent (26 percent in 2004). One-quarter (26 percent in 2006; 24 percent in 2004) stated that they thought changing the terminology would have no effect on the adversarial process.

Many respondents commented on the terminology issue. Examples of comments from respondents who thought changing the terminology would promote a less adversarial process included: "I believe it is about time we get away from the words 'custody' and 'access.' I believe such words treat children as commodities," and "This is critical and this terminology needs to disappear from legislation." A respondent who thought that changing the terminology would only somewhat promote a less adversarial process said, "It may confuse third parties, e.g., doctors, hospitals, border authorities, and officials in other countries." Examples of comments from respondents who did not think changing the terminology would promote a less adversarial process were:

Changing the terms "custody" and "access" will not change attitudes. Any new phrases will quickly become charged in the conflict. Example—"spousal support" payors are not more eager to pay it than "alimony." The terms custody and access are entrenched in provincial, federal and international laws. Changing the terms in the Divorce Act will cause a lot of confusion, and potentially lack of enforcement under the Hague Convention. No obvious benefit to changing the terms.

There has been a lot of talk in Canada about changing the Divorce Act and other provincial legislation to reflect more "parenting" language and do away with the terms "custody" and "access." In my opinion, the change of these terms will do very little to change the post divorce reality for most families. It has been my experience that many "joint" parents demand joint parenting for ego reasons and thereafter largely fail to be involved in joint decision making or even joint parenting at all.

Respondents were asked, based on their experience, how often parents are sharing decision making in specific areas. The majority of respondents said that parents shared decision making often or almost always in the areas of education (59 percent in 2006; 58 percent in 2004) and health (54 percent in 2006 and 61 percent in 2004) (see Appendix C, Table C9). The majority of respondents indicated that parents shared decision making occasionally or often in the areas of culture (67 percent in 2006 and 62 percent in 2004) and religion (66 percent in 2006 and 63 percent in 2004). Of respondents who indicated an "other" area, the majority said that parents were sharing decision making regarding extracurricular activities/recreation (74 percent in 2006; 65 percent in 2004).

Parents may not comply with their custody/access orders for a variety of reasons. Respondents were asked, in their experience, when parents do not comply, what are the circumstances of the case and how frequently do they occur (see Appendix C, Table C10). The most frequent circumstance reported in the 2006 survey was that the child refuses the visit with the access parent, which 65 percent of respondents said happened occasionally or often (22 percent). The most frequent circumstance reported in the 2004 survey was that the access parent was late returning the child, which 41 percent of the respondents said occurred often or occasionally (39 percent). The circumstance that occurred least frequently in both surveys was family violence, which half of the respondents (51 percent in 2006; 49 percent in 2004) said occurred rarely, and one-third (38 percent in 2006; 35 percent in 2004) said occurred occasionally.

Lawyers were asked what proportion of their cases with children involved included supervised access or exchange. Both supervised access and supervised exchange were encountered relatively rarely in both the 2006 and 2004 surveys. In both years, respondents reported that an average of only 8 percent of their cases included supervised access (range of 0 to 75 percent in 2006 and 0 to 60 percent in 2004), and an average of 6 percent of their cases included supervised exchange (range of 0 to 50 percent in 2006 and 0 to 40 percent in 2004). Lawyers were then asked under what circumstances they recommend supervised access or exchange to their clients. The results are presented in Appendix C, Table C11. In both the 2006 and 2004 surveys, respondents were most likely to recommend supervised access in cases of: allegations of child abuse (85 percent in 2006 and 86 percent in 2004); substance abuse by parents (74 percent in 2006 and 80 percent in 2004); and mental health concerns (74 percent in 2006 and 80 percent in 2004). Respondents in both years were most likely to recommend supervised exchange in cases of high conflict (69 percent in 2006 and 77 percent in 2004) and spousal violence (63 percent in 2006 and 69 percent in 2004). Ten respondents to the 2006 survey stated an "other" circumstance in which they would recommend supervised access to their client. Of the 11 responses provided, the most common reasons were following a period of no contact between the parent and the child to allow for reestablishment of the relationship and when there is a flight risk. Only 1 percent of the respondents to the 2006 survey said that supervised access is not available in their jurisdiction, and only 6 percent reported that supervised exchange was not available.

The surveys asked respondents in what proportion of their cases with children involved was parental relocation (mobility) an issue. While the range was widespread (0 to 75 percent in 2006 and 0 to 65 percent in 2004), the average was relatively low (13 percent in 2006 and 12 percent in 2004). In cases where parental relocation was an issue, respondents were asked what reasons were given for the move, and how frequently they occurred. The most common reason in both surveys was to be with a new partner, which 58 percent of the respondents in the 2006 survey reported occurred often (57 percent in 2004) (see Appendix C, Table C12). Other reasons that respondents reported occurred often were employment opportunity (56 percent in 2006 and 49 percent in 2004) and to be closer to family/friends (52 percent in 2006 and 51 percent in 2004).

Respondents were then asked what the circumstances were in cases of parental relocation, and how frequently they occurred (see Appendix C, Table C13). The most common circumstances cited in both the 2006 and 2004 surveys were when the custodial parent wished to move within the province/territory (in the 2006 survey, 37 percent said this occurred often, and 42 percent said it occurred occasionally), and when the custodial parent wished to move to a different province/territory (38 percent said this occurred often, and 38 percent said it occurred occasionally). Parental relocation was rarely an issue when the custodial parent wished to move within the city (54 percent in 2006) or outside the country (60 percent). Not surprisingly, parental relocation was rarely an issue when the access parent wished to move.

Date modified: