The Child-centred Family Justice Strategy:
Survey on the Practice of Family Law in Canada 2004-2006
The workshops were intended to obtain more in-depth information from a smaller group of lawyers and judges concerning family law issues. Participants were obtained via a sign-up list on a first-come-first-enrolled basis. There were two workshops: one on access enforcement and related issues; the other was on the Spousal Support Advisory Guidelines (SSAG). Each workshop had two facilitators and two recorders. Approximately 52 people attended the workshop on access enforcement, and approximately 40 people attended the workshop on the SSAG. Professors Thompson and Rogerson, the primary drafters of the SSAG, attended the SSAG workshop, though emphasizing at the start that they were only there to
"listen and learn."
The workshops began with a brief introduction of the issue by the facilitators, and the balance of the workshop was spent discussing the issues and hearing participants' views. An effort was made by the facilitators to keep comments relatively brief in order to allow for as many people as possible to be involved. Participants were asked to identify their profession and province/territory when speaking. The facilitators asked for a number of questions to be answered by a show of hands. The following list of questions was prepared by the research team to assist the facilitators in guiding the discussion.
3.1.1 Outline of Questions to be Posed to the Group
- Are you seeing more cases where access enforcement is a problem compared to a few years ago? If so, why? Do you believe that there are actually more cases, or are more cases being pursued through the legal system?
- Is access denial a problem? If yes, under what circumstances? Are there circumstances in which you think that access denial is warranted?
- Are there specific characteristics of families in which access denial is an issue?
- How do you ensure that non-custodial parents can exercise their access rights when access is denied by the custodial parent? Are there specific mechanisms that you regularly use? Are some mechanisms more effective than others?
- Do you use your province or territory's civil child custody enforcement legislation to deal with enforcement of access? How often have you used the legislation acting for either an applicant or respondent? If you don't use civil enforcement legislation, do you proceed with an application to have the non-compliant parent found in contempt?
- In your experience, what do judges tend to do on an application dealing with denial of access? Hold a parent in contempt? Order fines? Provide for
"make-up"access? Make orders which empower police or authorities to enforce court-ordered access rights? Make changes in the custody arrangements (i.e., giving the parent who has been denied access more time or primary care of the children)? Withhold support payments? Other?
- In your experience, does the wording of an order make a difference? Do clearer provisions or specific provisions prevent access problems? What do you think would help prevent future access problems?
- In your experience, is supervised access and/or supervised exchange an effective mechanism for ensuring that non-custodial parents exercise access?
- In your experience, is mediation or counselling an effective mechanism for addressing cases where non-custodial parents are having difficulty exercising access?
- Is the non-exercise of access by non-custodial parents a problem? If yes, under what circumstances? What do you or your clients do to try to address this?
- Are there specific characteristics of families in which non-exercise of access is a problem?
- What are the effects on children of denial of access?
- What role do the wishes of children play in access problems?
- What role does parental alienation play in access problems?
- Is parental relocation an issue with respect to access enforcement? What factors should be considered when a custodial parent wants to relocate? Do you include provisions in orders or agreements that are intended to deal with relocation and access?
3.1.2 Workshop Results
Extent of Problem
Workshop participants were asked if they were seeing more cases where access enforcement was a problem compared to a few years ago. The majority of participants said that it was about the same. A judge from Ontario reported seeing more motions for contempt to enforce access, as well as more motions for change of access arrangements. A lawyer from Alberta said there had not been a change in the amount of access litigation, but they were seeing more refusals by custodial parents to permit access as a conscious method of abusing the system.
A lawyer from BC said it was less of a problem compared to a few years ago for two reasons: (1) he has a large mediation practice, which has a more positive outlook on access enforcement; and (2) it is now more frequently recognized by mothers that it is good for children to see their fathers. A judge from central Ontario thought the problem was about the same or less; counsel isn't automatically taking clients' instructions to resist access—lawyers are telling clients that they generally have to facilitate access.
Another judge from Ontario reported that he thought it was more of a problem, because there are more unrepresented parties. The parties don't know about the law or the importance of access for children because they haven't been given advice or attended a parenting class. Likewise, this judge reported more high conflict cases. A lawyer from BC reported an increase in access difficulties, but usually because one parent has moved, and is looking for longer extended periods of access due to the distance and financial circumstances. A lawyer from Quebec said there are various tools to use to deal with the problem, e.g., using mediation decreases the problem.
Participants were then asked if they believe there are actually more cases, or if there are more cases being pursued through the legal system. A judge from Ontario said it was a difficult question to answer. This respondent's perception was that there is an increase in self-represented clients, who don't have the benefit of assistance and hence are more likely to resort to the courts, in addition to a general increase in the number of divorced families.
Workshop participants were asked if access denial is a significant problem, and their opinions on the adequacy of civil enforcement legislation to deal with the problem. A lawyer from Quebec said even though contempt might deal with the problem initially, it's only a Band-Aid solution; the remedies through the legal system are inadequate.
When asked why access is denied, a lawyer from Ontario said they often find it's the presence of a new partner, and about one-half of the participants agreed. About one-quarter of the group said access is often denied because of domestic violence concerns. Almost all the participants said it is often a reflection of underlying conflict between the parents, and the vast majority said it is often a manipulative tactic on the part of the custodial parent. A lawyer from BC said they often hear that the kids don't want to go, but it's difficult to say if it's manipulation on the custodial parent's part.
A lawyer from Nova Scotia said that judges view denial of access as a quasi-criminal proceeding, and the problem is that orders are loosely worded, so they are difficult to enforce. A BC lawyer said there are difficulties with perception; a parent with a child who is crying and having behavioural problems at school think it's justified to deny access, but is it really? Another BC lawyer said contempt is only available at Supreme Court, and it's very expensive. So the only remedy is going to the police, and they don't really want to enforce orders. There is a real gap in how to deal with non-compliance, because the provincial court in BC doesn't have jurisdiction.
Participants were asked how many have used the police to enforce access orders, and over three-quarters of the group said they had. When asked how many use the police regularly to enforce orders, only one participant said they did. A lawyer from BC said that
"under most circumstances, you don't want the police involved." Moreover, this participant said they have had difficulties in getting the police to enforce orders. Even when ordered by the Supreme Court, police are reluctant to enforce orders.
All participants were asked if they had experienced difficulties in getting police to enforce access orders, and over three-quarters indicated that they had.
A lawyer from Manitoba commented that in terms of involvement with the police, they feel for the child who is being torn. Involving the police puts the child in a real difficult position. It's a complex dynamic where the child is reliving the conflict from the marriage, including the frustrations and acting out.
A lawyer from Nova Scotia stated that she regularly represents children, and in mediation, children often say they don't want to go on access. The reality, however, is that there is going to be back and forth, and lawyers need to tell their clients that life is going to change. Parents need to be prepared for it.
Participants were asked how many had cases changing access orders, and about one-quarter indicated that they did.
Enforcement Legislation/Other Remedies
Participants were asked how many had provincial access enforcement legislation. A respondent from Manitoba said all provinces have legislation—the question of whether it's enough is a different issue. Is the legislation on access enforcement adequate, or are other remedies needed? When asked if their provincial legislation was adequate, nobody said it was. Participants were then asked what kinds of changes were needed. One participant said that a good place to start was in the social sciences, because we don't know if removing children from the alienating parent is the right thing to do or not. A lawyer and mediator from Newfoundland said there is a need to facilitate the parent/child relationship. In some cases the police are happy to jump in and take the child; in other cases they don't want to touch it. Regardless, it's always a trauma for the child if there is access denial or the police are involved.
Participants were asked what they'd like to see in terms of other remedies. One participant said they were trying to work with families by using family therapy with both parents and the child to see the dynamic of what's happening.
All participants were asked if they thought family therapy was the most effective solution, and roughly 90 percent indicated yes. Participants were then asked if there were adequate resources for counseling, and nobody said there was. A judge from Ontario expressed frustration at the lack of resources to help families at
"the front-end." There should be mandatory parenting classes and mandatory counseling. Further, there is unequal funding across the provinces.
Workshop participants were asked if they thought parenting education was helpful in addressing access problems, and everybody agreed that it was. Participants were then asked if the resources in this area were adequate in their province/territory, and about one-quarter of the participants (primarily those from Manitoba and Alberta) said it was. A lawyer from BC commented that there is an urban/rural problem because a parenting session may be 1 to 1½ hours away, and they don't want parents at the same session.
A lawyer from Quebec said they have mandatory mediation information sessions for anybody who is going to court, and they are currently in the process of changing that to mandatory co-parenting sessions.
Participants were asked what judges tend to do on applications dealing with denial of access. About two-thirds of the group said they regularly provide for
"make-up" access, about one-third indicated that the courts regularly made police enforcement orders, about one-quarter indicated that the courts regularly make changes in the custody arrangements, about one-fifth indicated that the courts regularly ordered fines for a finding of contempt, and about one-tenth indicated that the courts held the parent in contempt with the threat of jail. Only one participant had a case where support payments were withheld. One participant said there was a program in Manitoba in the early 1990s that linked payment support to future access. It was pre Child Support Guidelines, but it worked at the time.
A judge from Alberta said that in high conflict access enforcement cases, she adjourns the application, and gets the child and access parent to a counseling intervention; in every case, it gets resolved through court-ordered counseling.
A lawyer from Ontario stated that it is important to get to the voice of the child. It is important to meet with the parents and the child to be able to focus on issues with children. A lawyer from Ontario who also acts as a children's lawyer said that when she is appointed to a situation like this, the conflict is often so entrenched that she can't do anything about it. A participant from Nova Scotia said we need to know better ways of getting kids' views known. Another participant believed that having a child advocate would make a good deal of sense in these situations.
A lawyer from BC thought that problems of access denial were better handled through family case conferences than judicial means, and that gender also had an impact. Women have custody and are denying access, but then they also say that fathers aren't exercising their access rights. This participant thought there should be repercussions for that behaviour.
Participants were asked how many found case conferences an effective method for dealing with access problems, and about one-half indicated that they did.
Non-exercise of Access
Workshop participants were asked if they thought non-exercise of access was a significant problem, and three-quarters of the group indicated yes. When asked what the solutions were, a lawyer from Alberta commented that
"some people are just crazy. There are some cases where everything that's tried is manipulated by psychopathic people. Unfortunately, there have always been people like that. There are some parents children are better off not knowing. Bad guys finish first, especially bad guys with money." This participant wondered if parenting education would help. Participants were asked how many thought parenting education was an effective mechanism for dealing with non-exercise of access problems, and about one-half of the group indicated yes.
A participant wondered if judges should be ordering more support if access is not exercised. Some participants said they've tried to seek it, but had not succeeded. A participant from Quebec said that under the Quebec Child Support Guidelines, they can get 20 percent more support if there is no access; it's built into the provincial guidelines.
Participants were asked if they had any other issues regarding access enforcement they would like to discuss. One participant commented that there is a big difference in access to a 15-year-old and access to a breastfeeding baby. A lawyer from Alberta mentioned the problems that arise where two parents live in different provinces. If an access order is breached and the child is with the primary caregiver, nobody wants to do anything. One participant said kids will say,
"why do I have to go to counseling when it's not my fault."
A judge from Ontario suggested that there should be more resources up front when faced with a contempt motion, and commented that enforcing access through a contempt motion should be a last resort.
A participant from Newfoundland concluded by saying we need to ask,
"what can we do to help this family?"
3.2.1 Outline of Questions to be Posed to the Group
- How many of you have used the Spousal Support Advisory Guidelines (SSAG)? How many have used them in the following circumstances:
- in discussions about spousal support with clients?
- in negotiations with other lawyers?
- in mediation?
- in collaborative family law?
- in settlement conferences or other case conferences?
For those of you who have used the SSAG in any of these settings, did they help in the resolution of the case?
- How many of you have been involved with a contested spousal support claim in a trial or hearing since February 2005? Of these participants, in how many cases were the SSAG referred to by yourself, the opposing counsel, or the judge?
- Do you make it a practice to prepare computer print-out sheets showing the range of possible outcomes under the SSAG when arguing spousal support cases in court?
- Have the SSAG resulted in more consistency and predictability for spousal support outcomes?
- The "floor" for spousal support amounts is set at $20,000 for the payor's gross annual income, with more flexibility downwards for those earning $20,000 to $30,000. Is that "floor" about right? Should it be raised?
- After the payor's gross annual income exceeds the "ceiling" of $350,000, the determination of spousal support is individualized. Should the ceiling be left at $350,000? Should it be raised or lowered?
- In general, do the without child support formula ranges fit the outcomes you would expect as to amount and duration? Are the ranges for amount in the right ballpark? Are the ranges for duration about right?
- In general, do the with child support ranges seem about right? How many think they are too high? Too low? Are the guidelines for duration about right?
- How many participants have used the "exceptions" under the SSAG? Which of the following exceptions have you used, or considered, in your cases:
- compensatory exception for shorter marriages?
- illness and disability?
- debt payment?
- prior support obligations?
- compelling financial circumstances at the interim stage?
- Do you have any other comments or suggestions regarding the SSAG?
3.2.2 Workshop Results
Use of the Spousal Support Advisory Guidelines
Workshop participants were asked how many have used the Spousal Support Advisory Guidelines (SSAG), and almost all of the participants indicated that they had. Participants were then asked how many have used them in particular circumstances. Again, almost all participants indicated that they used them in discussions about spousal support with their clients, and in negotiations with other lawyers. About two-thirds of the group indicated that they used them in settlement conferences or other case conferences, and about one-third of the group indicated that they used them in mediation, and in collaborative family law. Participants were then asked if the SSAG helped in resolution of the case, and the vast majority (80 percent) said they did. Only two participants said the SSAG were of no help.
Participants were asked how many had been involved with a contested spousal support claim in a trial or hearing since February 2005. About two-thirds of the group indicated that they had been. These participants were then asked in how many cases were the SSAG referred to by themselves, the opposing counsel, or the judge, and almost all indicated that the SSAG were referred to by somebody.
Participants were asked if they make it a practice to prepare computer print-out sheets showing the range of possible outcomes under the SSAG when arguing spousal support cases in court. Almost all of the participants (90 percent) indicated that they did.
Effectiveness of the Spousal Support Advisory Guidelines
Workshop participants were asked if the SSAG have resulted in more consistency and predictability for spousal support outcomes. Just over a quarter (25-30 percent) of the group indicated yes, and about 15 percent indicated no. A lawyer from Ontario said that the SSAG don't work with clients who have very low incomes. This participant also commented that the duration of spousal support awards in the SSAG aren't long enough for recipient spouses with mental health issues.
The "floor" for spousal support amounts is set at $20,000 for the payor's gross annual income, with more flexibility downwards for those earning $20,000 to $30,000. Participants were asked if this floor was about right. A lawyer from BC thought that the floor was too low, and that even with $30,000 to $35,000, there are "not enough dollars." A participant from New Brunswick said that it varies regionally, and that $20,000 was a reasonable floor in New Brunswick. When asked how many thought the floor was about right, approximately one-half the participants indicated that it was. When asked if the floor should be raised, only four participants agreed.
After the payor's gross annual income exceeds the "ceiling" of $350,000, the determination of spousal support is individualized. Participants were asked if this ceiling was about right, or if it should be raised or lowered. A lawyer from Ontario involved in quite complex high income cases said that the recipient often misreads the guidelines and uses it for the "climb." They ignore the ceiling altogether.
"Once you go past $350,000, it's the wild blue yonder." This participant was waiting for a decision to come down on the first case with the payor's income over $350,000. This participant also felt that it wouldn't matter if the ceiling was $250,000 or $450,000; the result would be the same.
Participants were asked if anyone had experience with cases where the payor's gross annual income was over $350,000. A lawyer from BC thought that $350,000 was about the right amount for a ceiling. This participant had experience with a case in the $500,000 per year range, and found the numbers were still useful in analysis, and in arguing where the capital has gone in seven years. Another participant commented that anybody who actually has the ability to make over $350,000 usually doesn't report that level of income; businessmen rarely have taxable income over $350,000; they divert income to their business or to new intimate partners or other family members.
The Without Child Support Formula
Participants were asked if, in general, the without child support formula ranges fit the outcomes they would expect as to amount. The vast majority of respondents (80 percent) indicated that they were higher than what they were expecting prior to the introduction of the SSAG. No participants said they were lower. When asked if the amounts were too high, about six participants indicated yes. Another participant said it depends what side of the fence you're on. A Nova Scotia lawyer said the guidelines have created an expectation of what she would like to get; now she is waiting to see how many judges will follow the SSAG.
A lawyer from Manitoba said that lawyers and judges in that province don't follow the SSAG at all. Payment of debt is not taken into account, and lawyers in the province think they're
"way out of whack" with respect to cases where there are children. There is also a huge disparity in rural versus urban cases. This participant said that most Manitoba judges and lawyers did not go to the SSAG presentations at the conference.
Participants were asked if they had any other comments on the without child support formula. A lawyer from BC questioned the percentage differentials between spouses, and whether 50 percent was reasonable. This participant thought that it is high when one spouse is not working; if both are working, then 50 percent seems reasonable. Another lawyer from BC said it's like the old standard; the ideal was equal standards of living if there are equal efforts. When people don't perceive there's equal effort, that's where they have the problem. If they're both working hard (or both working three days a week), it's a better fit.
The SSAG state that entitlement is still an issue to be resolved in each case. Participants were asked how many thought entitlement has effectively disappeared, and three said yes. The remainder thought that it is still an issue. An Ontario lawyer brought up the problems that arise in cases with relatively short marriages, but older clients; a 55-year-old woman in a four-year marriage is looking for lifetime support.
Participants were asked if the without child support formula results in appropriate outcomes for duration, and about one-half indicated that it did. About one-third thought it should be one year for every year of marriage.
When asked to identify specific concerns, one participant said it's the rule of 65. They keep running into it again and again. A payor aged 55 to 57 has a younger wife and the big income is his, but he wants to retire and can't. Participants were asked if they thought the rule of 65 was about right. Approximately one-quarter of the group indicated that it was, but there was no consensus about how to alter it. One participant said their concern was that we might be linking duration of marriage to time-limited support, even in short marriages. Participants were asked how many had the type of fixed duration orders or agreements apparently contemplated by the SSAG, and nobody did.
Participants were asked how they felt about 20 years as the right threshold for indefinite support. Was it the right number? About one-half of the respondents indicated that it was; two respondents said it should be lower. Another respondent said it depends on the age and education of the couple. A lawyer from BC who also has a mediation practice said that people want to have fixed terms or lump sums because the cost of reviewing it is too high, and people don't want to do it again.
The With Child Support Formula
Workshop participants were asked if, in general, they thought the with child support ranges were about right. Two respondents thought they were too high. When asked how many thought the effect of the SSAG was to increase the amount of spousal support, about one-quarter of the group indicated yes. Nobody thought the effect was a decrease in spousal support amounts. One participant commented that most spousal support orders do not take into account the high amount of child support.
Participants were asked if there should be a shorter maximum duration that is in some way related to the duration of marriage. About one-quarter of the participants indicated yes, and four participants said they like the present situation. One participant commented that in a very short marriage, to have indefinite support until the child is out of high school greatly increases the duration of the award. Participants were asked if they agreed that duration outcomes were longer, and 80 percent indicated yes.
Regarding the re-partnering issue, workshop participants were asked if there should be a formula tied to the length of new relationships. A lawyer from Alberta said that everyone on the street believes that spousal support will end when re-partnering occurs; it's just a general public feeling. A BC lawyer thought that re-partnering should be left out of the equation. The purpose of SSAG is for interim support.
Exceptions under the SSAG
Participants were asked how many had used the "exceptions" under the SSAG, and only two said they had. A lawyer in Alberta used the illness and disability exception in negotiations, and another participant used the debt payment exception. Another participant commented that it's important to keep the discretionary aspect. For example, for a recipient spouse who is an immigrant from Afghanistan with no education, the duration of support would be too short.
Workshop participants were asked if they had any other comments on the SSAG. A mediator from Alberta questioned the duration with kids. She has half a dozen files with young children and very short marriages. When the clients see the numbers for duration, they think they're ridiculously long and just discard them, and come up with their own duration. A lawyer from Alberta agreed with these comments, and said the SSAG don't work well in these cases. This participant usually tries to come up with a lump sum, or finite term, and would like to see more definition of duration of marriages with young children. A lawyer from Nova Scotia echoed these comments, but thought that the SSAG generally tie duration of support to length of marriage. The expectation is that child support will continue until the kids are 18. With spousal support, perhaps the duration should continue until the children are all in school or, at least, spousal support should be reviewed then. Another participant said clients want to have a sense of finality, and would like to see the SSAG push toward resolution and finite time.
Participants debated the issue of duration of spousal support related to the age of any children. One participant thought it was bizarre that spousal support should continue until the youngest child reaches 18 since child care is freed up immensely when the youngest turns 12. Another participant disagreed that spousal support should end when the youngest reaches 12; as a hockey parent, she argued that the needs change as the child gets older, but they don't end.
One participant commented that there is a problem in the SSAG with regard to shared parenting, since the guidelines ignore it and treat spousal support the same. Another participant said that with respect to short-term marriages, clients often fail to recognize that there's an ongoing impact and spousal support could go on longer than the marriage. One participant brought up regional differences, and, lastly, a lawyer from BC thought the guidelines were way too complex, particularly with respect to the with child support formula.
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