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)
All respondents were asked the extent to which they thought the Federal Child Support Guidelines were meeting their stated objectives. Respondents to both the 2006 and 2004 surveys overwhelmingly agreed that the Guidelines are meeting their objectives (see Appendix C, Table C14). Figure 2.7 shows that almost all respondents in both surveys agreed or strongly agreed that the Child Support Guidelines have resulted in a better system of determining child support than the pre-1997 system. Similarly, almost all respondents agreed or strongly agreed that cases are settled more quickly since the implementation of the Guidelines, that since implementation of the Guidelines, most cases are resolved simply by relying on the tables to establish amounts of support, and that in cases involving litigation, the issues to be resolved are more defined and focused than prior to implementation of the Guidelines.
Respondents were asked what proportion of their child support cases involve undue hardship applications. Undue hardships applications were rare, with respondents in both the 2006 and 2004 surveys reporting that they occurred in only 6 percent of their cases (range of 0 to 50 percent in 2006 and 0 to 35 percent in 2004). Some respondents made unsolicited comments regarding undue hardship applications reflecting their frustration with this aspect of the Child Support Guidelines. Examples were:
"9 years and not one successful undue hardship case accepted in Court," and
"no one wins these, so no one claims it anymore."
When asked how often inadequate income disclosure is a problem in their experience, the majority of respondents in both the 2006 and 2004 surveys said that it was either often (41 percent in 2006; 49 percent in 2004) or almost always (6 percent in 2006; 7 percent in 2004) a problem. The proportion of respondents who said that income disclosure is occasionally a problem differed somewhat between the 2006 and 2004 surveys (47 percent in 2006; 37 percent in 2004). Few respondents in both surveys said that income disclosure is rarely a problem (6 percent in 2006; 7 percent in 2004).
When asked to explain what the problems are with income disclosure, 103 respondents to the 2006 survey made 156 comments. The most frequent comments were: self-employed income continues to be problematic (36 percent of respondents); unwillingness to disclose or provide supporting documentation (19 percent); and lack of complete disclosure (16 percent). One respondent said:
"Rules of disclosure are not adequate for the self-employed and corporations." Another offered the following suggestion:
Payors can easily delay cases and increase costs by failing to provide complete tax returns and current income information. The ... [provincial rules of procedure] ... should be amended to require a reverse onus. In other words, if the documentation is not provided within 30 days of service, there should be an automatic penalty of fixed costs unless the payor can establish legitimate grounds for the delay.
Respondents to both the 2006 and 2004 surveys were asked how often second families are an issue in their experience. The majority indicated that second families are an issue occasionally (54 percent in 2006; 50 percent in 2004), and over one-third of respondents (36 percent in 2006; 36 percent in 2004) said that second families are an issue often. A relatively small proportion of respondents indicated that second families are an issue rarely (9 percent in 2006; 11 percent in 2004) or almost always (1 percent in 2006; 3 percent in 2004).
When asked to explain what the issues are with second families, 79 respondents to the 2006 survey made 102 comments. The most common comments were: child support payors with second families often refuse to acknowledge first family obligations (41 percent); second families create access problems (18 percent); and children's relationship with new partner and siblings (13 percent). Eight respondents commented that there is simply "Not enough to go around," and "There is competition for limited financial resources."
All respondents were asked if there are any other areas of the Child Support Guidelines that they have found to be problematic. A total of 196 comments were made by 114 respondents in the 2006 survey. Respondents identified the most problematic areas of the Guidelines as: section 9—shared custody and the 40 percent rule (38 percent of respondents) (including comments referring to the Supreme Court of Canada's decision in Contino), section 7—special or extraordinary expenses (28 percent); and imputing income (19 percent). Examples of comments that capture these issues are:
Things were okay until Contino—it will take child support back 15 years.
Determining what is extraordinary for school and extracurricular. Suggestion—list out what qualifies for school expenses. Perhaps a formula relative to income for extraordinary expenses.
Reliance on income only allows self-employed payors too much opportunity to under pay. There is much difficulty in getting income disclosure and convincing courts to deem income.
Respondents also touched on a number of other issues regarding the Child Support Guidelines, such as children over the age of majority, table amounts, and administrative procedures. Examples of comments made were:
Post-secondary expenses—we need a general formula with enumerated exceptions or criteria to provide more guidance to litigants and judges.
The Guidelines seem to fall short when dealing with 3 or more children. The amount is too high, especially for lower income earners. Adjustments should be considered.
Easier system for recalculation of annual support—parties, in simple cases, should be able to register change in support through administrative process versus court.
All respondents to both the 2006 and 2004 surveys were asked in what percent of their cases is spousal support an issue. The 2006 average was 46 percent, ranging from 0 to 100 percent (2004 average was 48 percent; range 2 to 100 percent). Respondents to the 2006 survey were then asked how often they use the Spousal Support Advisory Guidelines (SSAG) in cases where spousal support is an issue. Most respondents stated that they make use of the SSAG, with 36 percent of respondents indicating that they use them occasionally. A substantial number of respondents also said that they use the SSAG often (27 percent) or almost always (28 percent). Few participants stated that they never use the SSAG (10 percent).
Respondents were then asked if the SSAG have improved the handling of spousal support applications. Fewer than half of the participants who responded to this question agreed that the SSAG have made the handling of spousal support applications: more consistent (42 percent); fairer (39 percent); less conflictual (37 percent); or generally easier to resolve (44 percent). Some respondents said,
"It's too early to tell." Others expressed concerns, such as:
I'm worried that the quantum and duration of spousal support will be too onerous as we move into the use of guidelines—the expectation will be that spousal support is paid rather than expecting everyone capable to work. Entitlement in short term seems to lead to long term awards in longer marriages.
Further data analysis was conducted to explore regional differences. Four provinces had sufficient respondents to allow for meaningful comparisons: Alberta, Ontario, British Columbia, and Nova Scotia. For each of these provinces, the percentages of cases in which respondents reported spousal support is an issue were: Alberta—49 percent; Ontario—52 percent; British Columbia—54 percent; and Nova Scotia—38 percent. Each of these provinces reported similar usage of the SSAG with more than half using the SSAG often or almost always.
Differences between jurisdictions were noted, however, when respondents were asked if the SSAG have improved the handling of spousal support applications. When asked if the SSAG have made the handling of spousal support applications more consistent, 65 percent of respondents from British Columbia said yes, compared to 46 percent in Nova Scotia, 41 percent in Ontario, and 24 percent in Alberta. When asked if the SSAG have made the handling of spousal support applications fairer, similar results were obtained; 61 percent of respondents in British Columbia said yes, compared to 50 percent in Ontario, 41 percent in Nova Scotia, and 21 percent in Alberta. When asked if the SSAG have made the handling of spousal support applications less conflictual, 55 percent of respondents from British Columbia said yes, compared to 40 percent from Ontario, 29 percent from Alberta, and 27 percent from Nova Scotia. Finally, when asked if the SSAG have made spousal support applications generally easier to resolve, respondents were more positive; 71 percent in British Columbia said yes, compared to 44 percent in Nova Scotia, 43 percent in Ontario, and 34 percent in Alberta.
Respondents were also asked if, in various situations, reference was made to the SSAG and if the resolution of the matter was within the range prescribed by the SSAG. Results are presented in Appendix C, Table C15. Figure 2.8 indicates that reference was most likely to be made to the SSAG in discussions with clients, in cases settled by negotiation, and in cases settled by case conference. Reference to the SSAG was least likely to be made in cases settled by mediation and cases resolved by a judge after a hearing. Case resolutions that are within the SSAG range were most likely to be reported in cases settled by negotiation and in discussions with clients. Resolutions within the SSAG range were least likely in interim motions and in cases settled by mediation. No regional differences were found with respect to this question.
Respondents to both the 2006 and 2004 surveys were asked, in cases where spousal support is an issue, what the circumstances are and how frequently they occur. The results are presented in Appendix C, Table C16. The circumstances that survey respondents reported occurred often were: payor's income is considerably higher than claimant spouse's income (54 percent in 2006; 57 percent in 2004) claimant spouse is a stay-at-home parent (50 percent in 2006; 56 percent in 2004); and claimant spouse was a stay-at-home parent to children now grown and is not in the labour force (49 percent in 2006; 56 percent in 2004). The circumstance that respondents reported occurred rarely (47 percent in 2006; 44 percent in 2004) or occasionally (34 percent in 2006; 44 percent in 2004) was couple had no children and claimant spouse is not in labour force.
In cases where both child support and spousal support are issues, respondents to both the 2006 and 2004 surveys were asked which issue is typically dealt with first. Almost all respondents (95 percent in 2006; 94 percent in 2004) stated that child support is dealt with first. Only 5 percent in 2006 and 6 percent in 2004 said that both issues were resolved together, and no respondents said that spousal support was dealt with first.
The Government of Canada strongly believes that it is important to send a message that all aspects of the family law system must take into account incidents of family violence involving the child or a member of the child's family. Lawyers in both 2006 and 2004 were asked if they always make enquiries to attempt to identify cases of family violence. Approximately three-quarters of respondents in both years (72 percent in 2006; 76 percent in 2004) said yes, while 28 percent in 2006 and 24 percent in 2004 said no. However, when asked if they use a screening tool (i.e., standardized questionnaire) to identify cases of family violence, almost all lawyers (87 percent in 2006; 90 percent in 2004) said no, while 13 percent in 2006 and 11 percent in 2004 said yes.
Lawyers who said they did use a screening tool were asked what tool they used, and most said they use their own (n=3) or they use a general intake questionnaire which includes a question on domestic violence (n=3).
When asked if they are familiar with the services available for their clients in cases where there is family violence, the vast majority of lawyers (95 percent in 2006; 89 percent in 2004) said that they are; 5 percent in 2006 and 6 percent in 2004 said that they are not, and 1 percent in 2006 and 6 percent in 2004 said that there are no services available in their area.
Respondents to both the 2006 and 2004 surveys were asked, in cases involving spousal violence, how the court addressed the issue, and how frequently it occurred. When the court did address the issue, the most likely response in 2006 was to make a civil order restraining harassment/spousal contact (61 percent indicated this occurred often or almost always), followed by denying custody to the abusive parent (45 percent of the 2006 respondents indicated that this occurred often or almost always; 40 percent of the 2004 respondents said this occurred often or almost always) (see Appendix C, Table C17). Court responses that respondents stated rarely were used included: child was given legal representation (52 percent in 2006 and 41 percent in 2004); access was denied to abusive parent (49 percent in 2006 and 48 percent in 2004); and parents were educated on the effects of family violence on children (38 percent in 2006 and 43 percent in 2004).
Respondents to both the 2006 and 2004 surveys were also asked, in cases involving child abuse, how the court addressed the issue, and how frequently it occurred. When the court did address the issue, the most likely responses were: to deny custody to the abusive parent (59 percent of 2006 respondents indicated that this occurred often or almost always; 63 percent of 2004 respondents said this occurred often or almost always); and access supervision was ordered (59 percent of 2006 respondents stated that this occurred often or almost always; 61 percent of 2004 respondents said this occurred often or almost always) (see Appendix C, Table C18). Court responses that respondents stated rarely were used included: child was given legal representation (40 percent in 2006 and 32 percent in 2004); court made referral to child welfare agency (32 percent in 2006 and 29 percent in 2004); and parents were educated on the effects of family violence on children (30 percent in 2006 and 35 percent in 2004). Nearly half of the respondents indicated that the court only rarely did not address the issue.
There were interesting differences in respondents' reports on how the court addresses cases involving spousal violence and child abuse. The court is much more likely to deny custody and access to abusive parents in cases of child abuse than spousal violence. The court is also much more likely to order access supervision and use an assessment service in cases of child abuse.
All respondents were asked if training sessions on spousal violence issues are available to family justice professionals in their jurisdiction. A considerably larger proportion of 2006 respondents indicated that training sessions were available (62 percent) than 2004 respondents (42 percent). Respondents who indicated training was available were asked if they thought the training was adequate, and over one-half (64 percent in 2006; 53 percent in 2004) said yes.
When asked if training sessions on child abuse issues are available to family justice professionals in their jurisdiction, a substantially greater proportion of the 2006 sample said yes (60 percent) than the 2004 sample (36 percent). Respondents who said yes were asked if they thought the training was adequate, and 63 percent in 2006 and 59 percent in 2004 said yes.
Some respondents had critical comments regarding the issue of domestic violence in the Canadian family law system. For example:
Canadian family law fails to keep pace with developments and evolution of the law in other countries such as the U.S. on domestic violence issues. The lack of political will to ensure that children are protected by legislative direction to judges in all federal and provincial statutes is nothing short of alarming. The statistical data and social science research cry out for a response...
The survey concluded by asking respondents if they had any other comments about the family law system in Canada and suggestions for future research. With regard to general comments about the family law system; 56 respondents made 129 responses. The most common responses in the 2006 survey were: the need for unified family courts with case management and specialized judges (23 percent); the need for parenting education (20 percent); and the need for more continuing education and discussion within the profession (14 percent). Comments made by respondents included the following:
I believe we are all trying to do the best we can for our families who are separating or in crisis. We could do a better job of educating our young people prior to entering into conjugal relationships and having children about the realities of what happens when the relationship breaks down. We need, as a society, to remember it takes a village to raise a child and be more child/family friendly in our employment/child care/tax credit/benefit systems. My children are your future! Your children are my future!
There needs to be a greater emphasis in the early stages of court intervention of the issue of other professionals such as mediators, counsellors, education. While there is some, there is not enough. Family law should be an interdisciplinary approach to address the family breakdown and reorganization of the family units. Children need a better form of representation as their voices are often lost despite considerations of their best interests.
Some respondents commented on the lack of family justice services:
We are resource poor. We have the right philosophy, the best of intentions, the law available, but lack front-end and referral services to address up front the issues (child-parent) to successfully intervene and prevent revolving door. We have seen great positive changes in the last few years. We need more resources, particularly in rural areas to ensure every Canadian has access to the benefits of our changing philosophy.
Many respondents commented on the delays within the family justice system, and the need to have administrative procedures to streamline the process. Examples of these comments were:
We need simpler initial interim application procedures—speed is critical to settle things down. Mediation/conciliation is not quick enough. Collaborative family law recognizes this—immediate needs must be met before we can effectively negotiate.
More of the issues e.g., child support, spousal support, parental responsibility arrangements, could be delegated to standardized routines, processed through bureaucratic office (e.g., WCB, EI). Use SSAG to calculate presumptive spousal support, enforceable through MEP with reverse onus on party seeking to vary amount or duration, etc. Use a presumptive shared parenting model, unless the parties wish to opt out. More administrative; less adjudicative.
...Giving both parents the presumption of equal responsibility and time on marriage breakdown would be the best thing that could happen for children of divorcing parents.
Some respondents used the opportunity to comment on the family law system in Canada to praise it. An example was:
I'm proud of our system, the lawyers and judges who work within it. More than that, I'm reassured by parents' efforts to do their best in very trying circumstances...still, after 18 years of practice.
With respect to suggestions for future research, 48 respondents to the 2006 survey made 67 comments. The most frequent comments were: child protection (19 percent); long-term effects of different custody and access arrangements (15 percent); and long-term effects of different resolution methods such as mediation/negotiation; court imposed settlements, etc. (13 percent)
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