REPORT ON FEDERAL-PROVINCIAL-TERRITORIAL CONSULTATIONS

APPENDIX C: REPORT ON QUEBEC WORKSHOPS (cont'd)

Discussion Guide for Quebec
April 2001

Table of Contents

INTRODUCTION

The federal, provincial and territorial governments have undertaken a vast consultation on questions related to custody, access and child support. These consultations, carried out by the federal, provincial and territorial governments of Canada:

  • are directed toward improving services for parents and children who are experiencing a separation or divorce;
  • provide governments with additional insight regarding the importance of amending the present laws, in particular the Divorce Act.

Within the framework of this process, the Federal-Provincial-Territorial Family Law Committee has produced a consultation document and a discussion guide entitled Putting Children's Interests First: Custody and Access. These information tools are intended for the general public, and describe the present situation in order to facilitate discussions on possible avenues for change. The information contained therein is of general importance or connected to a particular province, as the case may be.

In Quebec, the discussions that will take place as part of this consultation will be based mainly on this document, which takes the ideas developed at the Canadian level but adapts them to the Quebec reality and the unique aspects of its legal system.

This document presents an overview of the situation and highlights particular problems. It does not claim to treat the numerous difficulties connected with separation and divorce exhaustively, but instead aims to encourage the persons and groups consulted to explore possible solutions. Furthermore, those involved in the consultation will be invited to present a report or make suggestions concerning an element that seems important to them and that the documents do not address. 

THE FOLLOWING ARE THE MAIN TOPICS:

  • reorganizing parental roles after separation or divorce;
  • exercising and complying with access; and
  • child support payments.

I. Reorganizing parental roles at the time of separation or divorce (Dominique Goubau)

1. THE EXERCISE OF PARENTAL AUTHORITY

When parents separate or divorce, they must decide the way in which they will assume their parental roles and responsibilities from that time on. They face a massive number of very concrete questions, such as:

  • With whom will the child live?
  • How will the choice of schools be made?
  • Who will organize the child's vacations?
  • Who will look after health concerns?
  • Who will decide about religious or moral instruction?
  • etc.

Most couples who are separated or in the process of divorce manage to get along and determine by themselves the new conditions of their life as a parent. Others, however, have difficulty agreeing on some questions. In the case of spousal or family violence, mental illness, problems of alcoholism or drug use, it is even more difficult to arrive at a sound agreement.

The laws can assist parents in reaching an agreement by offering solutions and suggesting support agencies, such as consultation or mediation services. When, for any reason, such agreements between parents are not possible, the laws give the courts the powers and tools needed to organize the parental roles in the best interests of the child and in a way that respects their rights.

In practical terms, this means that in Quebec parents who separate or divorce are asked to talk to each other and find a basis for agreement. This can take the form of sole custody with access rights, joint custody, a balancing of parental responsibilities, or the exclusive allocation of certain powers to one parent. The possibilities are endless. But whatever the arrangements might be, the goal of such an agreement should always be to best serve the present and future needs of the children. If an agreement is not reached, it will fall to the court to look after the children's interests. In any case, two big questions necessarily emerge:

  • With whom will the child live?
  • Who will make future decisions concerning the child?

These questions fall under different legislation, federal as well as provincial. One federal law, the Divorce Act, applies when parents divorce and when it is appropriate to determine access in particular. On the other hand, it is Quebec legislation that has jurisdiction when non-married parents separate or when married parents separate but do not want a divorce. It is in the Quebec legislation that one finds provisions touching on parent-child relations (parental authority, guardianship, etc.).

Links between federal and Quebec legislations with respect to couples who divorce or separate and who have children are complex and can lead to confusion. Thus, legally married couples with children can be subject to both the Divorce Act and the Civil Code of Quebec when it is a matter, for example, of their responsibilities related to the upbringing and care of children. For all other couples who separate, as well as for non-married parents who have never lived together, it is the Civil Code of Quebec that governs the effects of separation on children. The province of Quebec also has jurisdiction in the matter of the administration of justice. Quebec is responsible for establishing the rules of civil procedure and the administration of legal services in its area. All of this makes the legal context quite complex.

When a court grants custody to one parent, the other parent can generally obtain access. In Quebec, however, that does not mean that the non-custodial parent loses his or her parental authority. The court can, in the interests of the child, modify this authority by according more or fewer powers to each parent. But allocating custody to one parent alone does not deprive the other of authority. On the contrary, Quebec legislation is based on the principle that even after their divorce or separation, the parents continue to exercise their parental authority jointly.

Of course, in daily life custodial parents have the greater authority, since the child spends most of the time with them. Thus, the law and the courts recognize the custodial parent's right to make everyday decisions alone. In principle, it is the custodial parent also who determines the place of residence of the child. However, unless the court orders specific restrictions, non-custodial parents still have an important role, not only through the exercise of their access, but also by their right to participate in important decisions concerning the child. For example, the non-custodial parent always has input when it is a matter of school, health care or the upbringing of the child in general. The two parents also continue to act as legal guardians of the child; this means that they administer the child's property jointly and represent the child in the exercise of his or her civil rights.

In the context of separation or divorce, the combined exercise of parental authority is not always easy in everyday life. On one hand, it implies a minimum of cooperation and communication between the parents, which is not always the case after a separation or divorce. On the other hand, the power of each parent to make decisions concerning the child is not clearly defined by the law. This last difficulty is even more real when it is a matter of divorce cases, since judges do not all give the same significance to the expression "custody" within the framework of the federal law on divorce. In fact, one notes that according to some judges, when a court order grants sole custody of a child to one parent, this parent should also have the right to make principle decisions concerning the child's upbringing. According to this view, non-custodial parents should only have the right of supervision. Their role would be essentially limited to verifying whether the custodial parent is properly doing his or her job. But according to most of the case law, the divorced parents who do not have custody of their children nonetheless have the right to participate in important decisions related to upbringing, health, school, etc. This is also the Quebec civil law solution. As far as the application of the Divorce Act is concerned, this divergence in the attitude of the courts creates an uncertainty in Quebec as to the actual effect of an order that grants sole custody to one of the two parents.

Questions:

2. TERMINOLOGY

In the context of divorce and separation, it is usual to use the expressions "droit de garde" [custody] and "droit de visite et de sortie" [access] or "droit d'accès" [access] that are found in various pieces of legislation. Some people, especially in other provinces of Canada, criticize this vocabulary, considering it to be too aggressive or too emotionally charged. According to this criticism, the words "custody" and "access" indicate that there is a winner parent and a loser parent. The terminology incites parents to do anything to win (that is, gain custody) rather than to attempt to find, in a co-operative spirit, the most advantageous solution for the child.

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3. REVIEW OF LEGISLATION

As we saw above, the Civil Code of Quebec honours the principle of joint exercise of parental authority after the separation of the parents. However, this is not the case with the Divorce Act. The law often serves as a reference for spouses at the time of entering into agreements and it is of course the law that the judges apply to resolve disputes when the parents do not reach an agreement. This is the reason why the Federal-Provincial-Territorial Family Law Committee questions whether the Divorce Act should or should not be amended in order to construct a better tool for the use of parents and judges when it is a matter of arranging the terms for the exercise of parental authority.

In this respect, the Committee proposes a series of options upon which you are invited to give your opinion, although there may be other solutions that you can put forward. Here are the five options as presented by the Committee.

FIRST OPTION – KEEP THE CURRENT LEGISLATIVE TERMINOLOGY

Keep the present terms custody and access, but try to develop and implement additional and improved family services, and educational and training services over and above the broad range of provisions for the care of children that already exist in the present legislation. Although the terms custody and access are used in numerous agreements and orders, their use is not obligatory as long as the responsibilities of each of the parents are clearly stated. These documents can state the access rights for the parent with whom the child does not usually reside or can indicate the dates and times when the child will be with this parent, without using these terms even once. The objective would be to improve in practice the ways in which the parents, lawyers, judges and other specialists approach the parental roles and the resolution of disputes over the children within the framework of family law. In this context, families undergoing a separation or divorce would be provided with the information and assistance they need in order to understand the various types of arrangements they can make to ensure the care of their children, and would be offered the necessary educational and training sessions to reduce as much as possible the conflicts that might exist between them and to protect the children from some of the negative effects of their parents' separation or divorce.

According to this option, we would keep the present terminology of custody and access so there would be no effect on the present laws that already use or include these terms.

SECOND OPTION – CLARIFY THE CURRENT LEGISLATIVE TERMINOLOGY: DEFINE CUSTODY BROADLY

We could continue to use the terms custody and access, but define them better. An open-ended list would indicate the elements contained in the term custody, including the following responsibilities:

  • responding to the everyday needs of children, particularly in relation to accommodation, food, clothing, physical needs, personal needs and supervision;
  • making everyday decisions concerning children; and
  • making important decisions concerning the well-being of children, such as decisions regarding the place of residence, health care, studies and religious instruction.

The law would give parents and judges a framework for dividing the various responsibilities related to the custody of children in sole custody or joint custody arrangements in a clear and intelligible way. So it would not be necessary to indicate whether the parental arrangement was sole or joint custody. The parental arrangements or court orders could use the expression custody but they would not need to do so as long as the responsibilities of each parent were clearly stated. They could refer to access times for the parent with whom the children are not usually residing or simply indicate on which dates and at which times the children will be entrusted to this parent, without ever finding it necessary to use the term access.

THIRD OPTION – CLARIFY THE CURRENT LEGISLATIVE TERMINOLOGY: DEFINE CUSTODY NARROWLY AND INTRODUCE THE NEW TERM AND CONCEPT OF PARENTAL RESPONSIBILITY

Keep the terms custody and access, but give the concept of custody a narrower meaning. Introduce the term parental responsibility, which would refer to all of the rights and responsibilities of parents with respect to their children, including:

  • the responsibility for meeting the everyday needs of children (residence, food, clothing, physical needs and supervision);
  • the responsibility for making everyday decisions concerning children; and
  • the responsibility for making important decisions concerning the well-being of children, such as those relating to the place of residence, health, education and religious instruction.

Custody would be a component of parental responsibility, that is, the responsibility for maintaining a residence for the children.

Custody, then, would refer to the responsibility for determining the place of residence of children, but not the way in which important decisions concerning them are made. Each parent should be responsible for everyday care and decisions when the children are with that parent. In the agreements and orders, we could clarify the procedures for exercising other parental responsibilities. The parents would also be called upon to exercise solely or jointly various parental responsibilities, according to what is in the best interests of the children in their particular situation.

FOURTH OPTION – REPLACE THE CURRENT LEGISLATIVE TERMINOLOGY: INTRODUCE THE NEW TERM AND CONCEPT OF PARENTAL RESPONSIBILITY

Replace the terms custody and access in family law by a term covering a new concept, parental responsibility. The specific elements of this new concept could be defined in the legislation. In place of custody and access orders, courts would be called upon to issue orders regarding parental responsibilities in which they would prescribe precise terms for exercising parental responsibilities. The law would not require that the exercise of parental responsibilities be allocated equally or that they be exercised cooperatively. Certain responsibilities could be exercised by one or the other of the parents or by both jointly, in accordance with the best interests of the child. If it became necessary to protect the best interests of the child, one of the parents could be entrusted with the power to exercise exclusively almost all of the parental responsibilities.

FIFTH OPTION – REPLACE THE CURRENT LEGISLATIVE TERMINOLOGY: ADOPT THE TERM "SHARED PARENTING"

Introduce the principle of "shared parenting" into family law. The recommendation in the report of the Special Joint Committee on Custody and Access, For the Love of Children, stated in particular that the sharing of parental responsibilities should be interpreted as "also encompassing all of the meanings, rights, obligations and interpretations" which were previously expressed by the terms custody and access. This approach did not imply that the children had to live for equal periods of time with each parent. Nonetheless, it was based on the principle that it would be beneficial for children to have an extensive and regular interaction with both parents, and that there should therefore be an equal or almost equal sharing of the rights and responsibilities of the parents, including the power to make decisions. Parents who do not want this should provide proof that the sharing of parental responsibilities is contrary to the best interest of the child.

In addition to these five options, we could add that option provided by Quebec civil law, according to which the allocation of custody to only one parent still leaves the principle of joint parental authority intact. As we have explained above, this means that without an agreement and detailed instructions from the court, the non-custodial parent can continue to exercise his or her parental authority and, in particular, to participate actively in important decisions regarding the education and care of the child.

Note that the third option proposed by the Federal-Provincial-Territorial Family Law Committee in fact represents the solution of Quebec civil law, apart from the difference that the expression "parental authority" happens to be replaced by the expression "parental responsibility."

Questions:

4. THE CONCEPT OF THE BEST INTERESTS OF THE CHILD

Both federal and Quebec legislation attach great importance to the concept of "the best interests of the child." It is now well accepted that all decisions concerning children must be made their best interests, whether the decision-maker be a judge, parent, teacher, educator, physician, etc. This principle, which is accepted, moreover, by the United Nations Convention on the Rights of the Child, applies equally to agreements made by parents at the time of their separation or divorce. The arrangements that they make regarding children must serve the interests of the latter.

However, contrary to some legislation in other provinces, neither the Divorce Act, nor the Civil Code of Quebec stipulate what the term "interests of the child" actually means. The Divorce Act only says that the interests of the child must be "defined in terms of his or her resources, needs and, generally speaking, situation." For its part, the Civil Code of Quebec defines the concept by emphasizing that it is necessary to take into consideration "besides the moral, intellectual, emotional and physical needs of the child, his or her age, health, character, home environment and other aspects of his or her situation."

When, at the time of a divorce or separation, it has to be decided where the child will live and how custody (sole or joint custody) or access (every other weekend, a part of vacation time, etc.) will be structured, the criterion of the best interests of the child must still take precedence. In other words, the legislation does not favour one way over another. Only the interests of the child will dictate the best solution in each particular case.

Some people think nonetheless that the law should be more explicit and that it should list the criteria to consider in determining the best interests of children. According to them, a list of factors could sensitize people to different aspects that they must consider when making decisions regarding children. One can consider, among other things, the cultural environment, ethnic origin, religious beliefs, the child's ability to adapt, relationships with brothers and sisters or with other family members like grandparents, etc.

Opinions vary on this issue. Some consider that establishing a list would not increase the predictability of decisions and would not reduce disputes. Others believe that it could be useful to add some key factors, but that if these are too numerous, it could prove to be difficult, or even useless, to apply.

However, in connection with deciding custody and access, the Divorce Act provides an additional explanation by laying down that in principle the child must have the most contact with each parent that is compatible with the child's interests. This act even provides that the court, which must make a decision regarding custody, has to take into consideration whether or not the parent who claims custody is disposed to facilitate contact between the child and the other parent. This is what some call the principles of "maximum contact" and "friendly parent."

These two principles raise a controversy. Some think that they are unjust and create dangerous situations, particularly in cases of spousal violence or especially high conflict relations between the parents.

The Divorce Act clearly provides that the court must consider the behaviour of the parent when it affects the ability of this parent to act as father or mother. Consequently, the courts can consider the existence of a violent family environment in their decisions regarding the allocation of custody. And they do this regularly in their judgments. But the law does not make it a specific factor in the decision. It is the same in cases where, although there is no violence, the relations between parents nonetheless have very high levels of conflict.

Questions:

5.THE CHILD'S PERSPECTIVE

Decisions made by parents or judges in the context of separation or divorce directly affect the children. In their interest, it is therefore desirable that the children's perspective be taken into account. Considering their opinion does not mean letting children themselves decide. However, it is important to examine the conditions under which children's opinions are taken into consideration.

Parents face a dilemma when they try to reach an agreement: to what extent should they take their children's ideas into consideration? But the judge also asks the same question when the time comes to consider the appropriateness of listening to the child as part of the legal proceedings. In some special cases one can in fact find it necessary to have the child heard by the court.

In accordance with the United Nations Convention on the Rights of the Child, the Civil Code of Quebec prescribes that "the court shall, in every application brought before it affecting the interest of a child, give the child an opportunity to be heard if his age and power of discernment permit it." Depending on their age and development, therefore, children could present their point of view before the court.

Moreover, Quebec legislation also provides a certain number of mechanisms providing a framework for the child being heard by the court. Thus, children can be accompanied by someone capable of assisting and reassuring them. In some cases, the child could be represented by a lawyer, whether this be at the request of the judge, a parent, or even at the request of the child himself or herself. In other cases, the point of view of the child can be explained by means of a psychosocial evaluation or through the process of mediation.

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