REPORT ON FEDERAL-PROVINCIAL-TERRITORIAL CONSULTATIONS
APPENDIX C: REPORT ON QUEBEC WORKSHOPS (cont'd)
WORKSHOP B: MEETING ACCESS RESPONSIBILITIES
Workshop leader Sylvie Matteau
Secretary Lucie Ouellet
Problems arise when parents do not comply with the terms and conditions of their written agreement or court order, and deny access or fail to exercise their access rights. The workshop participants dealt with both aspects of the problem. They recognized that they happen for a variety of reasons, particularly a poor understanding of what the agreement or order requires of parents, but also from the ill will of the parents, who do not make a distinction between their parental relationship and their personal relationship.
Access problems range from relatively minor incidents, when access is denied on a particular occasion because the children are sick, to severe quarrels between high conflict parents, even serious accusations of dangerous behaviour with the children or behaviour leading to parental alienation.
On the other hand, the disruption of the child-parent relationship because a parent has failed to exercise his or her access rights also is a major problem for the children as well as the parent who bears sole responsibility for the children.
Participants tried at the beginning of the session to establish the extent and seriousness of the problem-what percentage of cases has these problems? Figures are not available at present. From the outset then, participants criticized the lack of statistics that would make it possible to determine the size of the problem. The group recognized that it would be useful to have these kinds of data.
However, it was also recognized that whatever the number of cases and the frequency of problems, exercising access remains a very difficult ordeal for the parents who must cope with these circumstances. As for the fathers' groups represented in the workshop, 100 percent of the fathers had made serious compromises or had had major difficulties exercising their access rights. According to them, no one is happy. Agencies that offer services to women also witness the significant impact that these difficulties have on mothers and children. An Aboriginal women's representative told the group there is virtually no respect for agreements or judicial orders among Aboriginal people, and local communities have no way of ensuring these judgments are respected.
The participants agreed that it is tomorrow's society that is being affected-the children-and the day's work began on that note.
Another important element emphasized from the beginning was the terminology parents deal with, which makes for bitter relationships. However, the group did not discuss the basics of this question, being confident that the participants in Workshop A would discuss the problem thoroughly.
Question 6.1 Do you think the family law system sufficiently encourages respect for access obligations?
THE CURRENT SITUATION
The participants were unanimous in answering "no" to this question.
Some participants thought that there are too many so-called "hallway agreements," made at the last minute at the courtroom door. These agreements are inappropriate, obtained by force or under pressure because of what the judge may decide in a few minutes, which sometimes may involve embarrassing revelations.
Others thought the frame of reference is the problem, again referring to the terminology and the presumptions underlying the judicial system and the law. According to them, everything should be looked at from the standpoint of the children's right to have equal access to both parents. Others added that the rights and obligations of the parents should also be seen from the perspective of their duty towards their children.
The fact that there is no coordination between the various services and practitioners leaves major gaps in the system. There is no longer anyone who can see solutions. Everyone is overwhelmed, and waiting times are enormous. In addition, parents do not know about the system or the available services. They feel vulnerable, isolated and frustrated, which intensifies conflict.
Participants emphasized the apparently very high suicide rate among Quebec fathers after separation and divorce. These statistics should soon be published. Likewise, the rate of child abandonment by fathers is proof that the system does not encourage respect for access.
Several participants mentioned the growing tendency of some parents to remain outside the system to prevent it from breaking the agreement they have between them or making the situation worse.
It was also emphasized that the system fails grandparents, who are also important and significant for children.
In addition, participants deplored the fact that judges do not use and give force to the section of the Divorce Act under which the custodial parent must encourage the other parent's access to the child as a condition of being given custody. The fact that there are too many false accusations and that judges do not follow up on contempt of court was also criticized.
As to having a lawyer represent the children, some participants had positive experiences with this kind of intervention, although several others saw them as a second lawyer for the mother, disturbing the balance of power between the parents. Should the children's lawyer have direct contact with the parents? In what way? How should he or she determine the children's best interests and take instruction from the children, particularly when they are very young?
The participants pointed out that asserting access rights in the judicial system has an enormous monetary cost, beyond the emotional cost.
The Barreau du Québec maintained that family law must be humanized and mentioned the work already done in this regard and its 1997 report Possible et actuelle, une plus grand humanisation du droit de la famille.
The participants made the following suggestions.
- The terminology should be modified to permit better parental involvement and provide a different perspective in terms of children's rights and the parents' obligation to their children. On the one hand, children would have the right to see their father as much as their mother. On the other, the custodial parent would have a duty to encourage access, and the non-custodial parent the duty to exercise that right-because a child is waiting.
- It would be appropriate to recognize socially some basic principles, such as the right to be different (i.e. the fact that it is normal for fathers to act differently from mothers, that a father who was not around much when the couple lived together can become a father with a much larger presence after separation and that it is normal for a mother to have doubts about that).
- Emphasis should be placed on education that encourages fathers to look after children right from birth, that distinguishes among the different roles in life and recognizes their worth (i.e. the role of parent, a man and woman contributing to society and the family) and that recognizes that during separation partners have things to settle and parents must necessarily find common ground to protect their children from the effects of the conflict. This again reflects the perspective of the parents' obligation to the children and the children's right to a happy childhood, free from the conflict between parents.
- All practitioners-judges, lawyers, all the people providing legal and paralegal services-have an educational role to play.
- The practice of children's legal representatives should be better supervised and better utilized. Precise rules governing ethics and behaviour should be adopted to assist them in their role and to maintain their neutrality with parents.
- Finally, according to some, mediation is an obligation to children. It should be mandatory.
The participants were unanimously in favour of modifying the system so it could integrate and promote the following:
- a change in the terminology and the perspective of the law in terms of children's rights and the duty of parents with regard to their children;
- a stipulation that the judge who hears an access case remains responsible for the file from the beginning to the end of the case;
- better coordination of resources: there must be more cooperation between psycho-social interveners and the legal system; participants want a real integration of the social service and legal systems;
- the ability to identify difficult cases: action must be taken in advance and then followed up so that parents can quickly obtain the services and assistance they need;
- the availability of support, right from the beginning, even in difficult cases: the system must adapt to the needs of each family, providing parents and children with specialized services designed for their particular situation.
- a provision for direct access to the judge responsible for the file when access is not respected, through simple notification of the other parent; the judge could thus exercise his or her power of review over the follow-up measures and the parents' attitude; and
- supervision and definition of the role of the children's legal representative.
Question 6.2 Should parents be encouraged to resolve their differences about exercising parental authority and access through mediators, who are impartial, experienced,professional intermediaries, such as mediators? If so, how?
THE CURRENT SITUATION
To give parents a sense of responsibility about resolving their differences, it would be useful to make them aware of the harmful consequences to children caused by contentious relationships and non-respect of agreements and orders.
Everyone agreed that wanting to make parents more aware of their duties and responsibilities towards their children is worthwhile, but the process must begin with practitioners-psychologists, lawyers, social workers-who, according to several participants, do not give parents appropriate information or may even act in ways that create or sustain parental conflicts.
Mediation is underutilized, whether voluntary mediation or ordered by the court under article 815.2.1 of the Code of Civil Procedure . Several cases that would have been suitable for mediation were never sent there, because the parents did not have the right information or were badly advised.
Some people perceive mediation as integrated with the legal system. This is false and is detrimental to its development.
There is a critical window of opportunity for taking action, and parents must be informed in time to make good choices.
The participants suggested, therefore, that:
- judges should make sure that parents have seen a video on separation and mediation before the hearing;
- parents should have easy access to information on the judicial process, mediation and other possible types of neutral intervention;
- mediation should be compulsory (according to some participants);
- there should be more extensive use of pre-hearing mediation; and
- free services should be offered widely to make them more available in the case of non-compliance with access obligations.
Furthermore, parents in the focus groups led by Léger Marketing suggested that sensitizing parents to their roles and responsibilities and consulting the children were among the solutions to problems with access.
Question 6.3 Do you know about services outside the legal system that encourage respect of custody and access obligations?
THE CURRENT SITUATION
Participants were very familiar with the services available in their region and their field. And they unanimously agreed that there are not enough services, they are not well known in the community and they are often misunderstood by other practitioners. In addition, they are often very expensive and lack adequate financing.
Moreover, participants noted that services are often geared to a particular clientele, men or women. Certain services are victims of prejudice.
In conclusion, participants agreed on the following points.
- It is important, even essential in certain circumstances, to make neutral places available for supervised access. Not only should new resources be created but the current network should be consolidated.
- Some participants suggested that these centres should be accredited by a formal authority. Since they affect family members who are living though extreme and often complex situations, children and adults who go to these centres should be assured of finding qualified support personnel with specialized training.
- Although participants did not believe that support groups should be the government's responsibility, because they feared these groups would lose their neutrality, there is justification for more adequate funding.
- They also suggested the "case-management" approach, a new neutral resource capable of following the situation as it evolves and providing a link between the family and the legal system.
- Mediation service should be attached to the supervised access centres so the services are integrated and useful follow-up is carried out to resolve the conflict, and to ensure that use of the access service remains temporary.
- Emphasis should be placed on services for children. There must be a specific process for the children, to protect them and to move things forward.
- The stress of divorce sometimes causes a parent to lose control, so rapid and professional intervention is necessary. Therapeutic support and psychological and psychiatric services must be provided.
Question 6.4 Do you have any suggestions for better ways to inform people about these services?
As previously discussed, it clearly emerged that practitioners themselves are ill-informed about the nature and availability of these various services.
Therefore, the participants thought it was important, even essential to begin all information campaigns with the services network. Only when this is done will all members of the network be in a position to provide accurate and appropriate information to the parents who need it the most.
Some participants suggested that there should be "open house" events for agencies and organizations to publicize their services to the community and to other interveners, including other services, judges and lawyers. All professionals should be informed and visit the services in their region.
At the end of the discussion, however, participants agreed that information alone is not enough to change attitudes and points of view, and it is necessary to go as far as educating new parents about their shared responsibility for their children.
Television information programs should be encouraged to produce documentaries on these subjects. Government should also create advertising campaigns and broadcast them regularly. Flyers should be available throughout the CLSC network, at the court houses and on the Internet.
Question 6.5 Have you any concrete suggestions for establishing mechanisms that would guarantee that access is exercised?
Some participants believed that when a parent violates the other parent's rights, there should be sanctions, a monetary payment, for example, for contravening an order or an agreement or in compensation for costs incurred.
However, in terms of coercive measures, which were far from receiving universal approval, all participants were very hesitant about the contempt of court proceeding, which is considered inappropriate and even very harmful when, for example, a parent could use this conviction against the other parent to damage that parent's image in the eyes of the children.
For non-custodial parents who have difficulty exercising their rights, it is a crime to see custodial parents abusing their rights with the aim of preventing the other parent from exercising theirs. Children should never be taken hostage, knowingly or unknowingly. There could be a mechanism to ensure that the non-complying parent would receive a notice and then sanctions afterwards.
Another proposal was for a follow-up committee, not subject to judicial control and made up of professionals who would make suggestions to the court about sanctions and remedies (such as loss of sole custody, when the custodial parent fails to ensure that the non-custodial parent has peaceful access). The participants insisted that there must be appropriate measures for appropriate cases.
Other participants firmly opposed coercive measures, seeing the problem more as one of education. They proposed that young people and parents should be educated about parental responsibility, communication, mediation and conflict resolution.
In summary, the participants suggested the following.
- There should be a family court made up of judges interested in the human aspects of law and trained in the factors related to family law, and well informed about all the available services and their nature. *
- At the very least, a judge should remain responsible for a case until the end and ensure follow up on difficulties the parents encounter in applying their agreement or the court's decision. The judge should have the knowledge and information necessary to refer the parents to other available services in the network, and order that they have recourse to these services, if need be. *
- Parents should have low-cost access to a judge to review the case.
- In cases of non-compliance, there should be a gradation in intervention. First, the reasons for non-compliance must be understood and the problem identified in order to respond appropriately to each situation. *
- The motion for contempt of court should be replaced by a motion requiring the parent to come and give reasons why he or she is not complying with the order or agreement.
- Difficult cases should be identified quickly by the court and follow-ups put in place and carried out by neutral, specialized teams. *
- There should be more extensive use of pre-hearing mediation, and no-charge services should be available widely to make them more accessible in cases of access non-compliance. *
- Mediation should be used with different conciliation models, so it is available in more difficult cases, when parents cannot immediately be brought together, for example, or when children or other family members may be involved.
- Mediation should also be used for therapeutic or transformative purposes, to improve communication between parents.
- Ensure that the greater the parental conflicts, the more detailed are the specific plans for exercising access rights that are laid out in agreements and decisions.
- Services must be well adapted to the needs of each family, rather than setting up compulsory, ready-made models, which can only respond to the needs of the majority of people, and rarely to all those who really need them. *
- Abusing the process should have real consequences.
- Children should have a higher priority, and be assured of services that support them in their difficulties and include them in mediation services and support groups.
- Establish preventive services, such as information seminars for parents, so that they become aware of the impact that their conflicts and, more particularly, their problems with access, have on children. *
- There should be better financing for parent support services and family support centres to encourage discussions between "delinquent" parents and children, and for setting up co-parenting seminars and producing videos on this subject.
Question 6.6 Do you think that parenting after separation seminars are useful? Should certain aspects of these programs be compulsory?
After the discussions described above, all participants said they were in favour of this kind of seminar. There should be a minimum amount of mandatory content. For some parents, such a course should be a prerequisite for all proceedings.
Several were familiar with the Service de médiation et d'expertise program at the Montréal Superior Court and spoke in favour of this kind of intervention.
Some participants thought this program could include information on ways of resolving conflicts, including mediation, thus replacing the present group meeting on mediation offered under the pre-hearing mediation legislation.
CONCLUSIONS FROM WORKSHOP B
In sum, participants agreed that an urgent change of course is needed. The situation is critical. Society and the legal system must change their point of view on granting and exercising access rights.
Participants want the necessary resources to integrate the legal system and social services, to recognize the human aspect of the separation phenomenon within a legal system that was set up to settle legal conflicts, to establish an education program that will be able to promote the values of both parents sharing their duties and responsibilities, and children's rights; and to inform people about the services that are available when parents find themselves in difficult situations.
Participants want the needs of families who are experiencing breakdown to be recognized so they can be given the support and assistance that parents and children need.
They recommend a collaborative network so prevention programs and mediation programs could be set up, as well as case follow up, rapid identification of high conflict cases and tailor-made intervention carried out by neutral and highly qualified professionals.
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