Final Federal-Provincial-Territorial Report on Custody and Access and Child Support

Executive Summary

It is not enough that we in the justice system be reactive.  To do our jobs properly, we must also be proactive.  While our task is to solve people's problems, we can only really solve those problems in a thorough way if we take proactive steps to ensure that family law and procedure are modified to keep pace with changes in society.  Proactive means progressive, innovative thinking and action that strives to meet the actual problems in the lives of the men, women and children the law serves.  Family law is perhaps closer to the basic norms and values of our society than any other area of the law.  And if the law is to be effective, it must reflect these values.[1]

The following report is presented to Ministers Responsible for Justice in the hope that it will stimulate continued dialogue on family law issues, support continued development of needed family law services and promote thoughtful family law reform.

This paper reviews many of the challenges facing children and families before, during, and after family separation.  It reviews research, surveys, previous studies and the experiences of other jurisdictions.  It builds on public consultations and research undertaken for this project.  The report contains suggestions regarding custody and access legislation and family law services and processes that might assist in resolving family disputes and reducing trauma to children and their families.  This involves individual, professional, judicial and government action.

Children today live in a diversity of family forms.  Social change has resulted in an increase in single-parent families and blended families and the potential for children to face multiple family restructurings.  An increasing number of children face family separation at an earlier age.  An increasing number of children are born to parents who are not married, and children born to common-law couples face a greater risk of experiencing parental separation than do children whose parents are married.

When family breakdown occurs, adjustments must be made to parenting arrangements.  Adjustments may also be needed from time to time until the children are no longer dependent.  Conflicts that precipitated the family breakdown may make this process very difficult for many families.  Divorce or separation may aggravate pre-existing problems such as poverty or ineffective parenting.  New issues that may affect the parenting arrangement, such as a parent moving or having other children, may arise after the separation.

The family legal system in relation to custody, access and child support consists of the laws and the legal processes in place to resolve disputes when parents cannot agree.  In Canada, government responsibility for the family legal system is divided between the federal and provincial and territorial governments as a result of the distribution of legislative powers under the Constitution Act, 1867

The federal Divorce Act applies to custody, access and child support issues in divorce proceedings.  These issues are determined by provincial and territorial legislation for separating married parents who are proceeding under provincial legislation for orders of separation and other relief, and for divorcing parents who choose to have them determined under provincial legislation during their divorce proceedings.  They are also determined under provincial legislation for unmarried parents.  Provincial and territorial law governs all other aspects of family law in relation to parents and children, including establishment of parentage, adoption, child protection, guardianship of the estate of the child and consent to medical treatment.  The federal government is responsible for the appointment of judges of the superior courts, but the provinces are responsible for the administration of all the courts that deal with family matters.

Given the shared jurisdiction, as well as our increasingly mobile population, it is important that jurisdictions work collaboratively in the pursuit of family law reform.  In recognition of the need for a comprehensive and co-operative inter-jurisdictional review of this area of the law, the Family Law Committee was asked to look at legislation and services in relation to custody and access, and to review the recommendations made by the Special Joint Committee on Child Custody and Access.

The Ministers Responsible for Justice approved a set of guiding principles and objectives for family law reform in 1999, and the Family Law Committee proposes that these principles continue to guide the development of a longer term, collaborative, inter-jurisdictional response to family law reform and family law service enhancement.[2]  The Family Law Committee recommends that the principles and objectives of family law reform be as follows.

Principles[3]

Objectives

It is important to recognize that there are two interrelated components to family law reform:  legislation and services.  It is clear from public consultations, the report of the Special Joint Committee on Child Custody and Access and the submissions of organizations like the Canadian Bar Association, that many Canadians do not view legislative change as the sole or even primary focus for family law reform.  Legislative change without service improvements may have limited or no impact on the way families and children cope with family breakdown.  This report addresses both legislation and services, including dispute resolution processes.

Both the federal government and the provincial and territorial governments have important roles in supporting services in the family law legal system.  A commitment by governments for funding for services in the provinces and territories is needed to support a long-term integrated multi-sectoral approach to the provision of complementary and co-ordinated family justice services.

In addition to the Divorce Act, there are at least thirteen different provincial and territorial statutes governing custody and access in Canada.  None of the legislative provisions is exactly the same, although there are important common elements.  For example, all provide that the fundamental principle is the best interests of the child, and all use the term custody.  However, not all statutes use the term custody in the same way, and substantive provisions as well as terminology vary.  Relative consistency in federal, provincial and territorial legislation would help make the law clearer to Canadians, and also help to ensure consistent treatment of children.

The Family Law Committee recommends that jurisdictions work to ensure that children are treated similarly and provided similar protection in Canada by providing relative consistency in laws affecting custody, access and child support.

In the 2001 public consultations, Putting Children's Interests First:  Custody, Access and Child Support in Canada, the Family Law Committee identified several key legislative issues for reform.  They are defining "best interests" ;terminology; family violence; high-conflict relationships, addressing children's perspectives; and meeting custody and access responsibilities.

Defining Best Interests

Some, but not all, provincial and territorial laws list specific factors that parents are to consider when determining the best interests of the child.  The Divorce Act does not contain such a list.  The Family Law Committee recommends that custody legislation contain an explanatory non-exhaustive list of criteria for parents, judges and others involved in the decision-making process to consider when determining the custody arrangement that is in the best interests of the child or children.  The factors to be listed include:

  • factors related to the children themselves, such as the children's health and special needs;
  • the children's relationships with others;
  • factors related to parenting of the children in the past; and
  • factors related to the future of the children, including the potential for conflict or violence affecting the children.

The Family Law Committee also recommends that any list of best interests criteria be child-centred to ensure that the child's best interests remain the foremost consideration in custody and access decision making.

Terminology

The current terminology of custody and access has been criticized by some, including the Special Joint Committee on Child Custody and Access, which recommended that the terms no longer be used in the Divorce Act and be replaced by a new term, shared parenting.  The critics argue that the current language promotes conflict and focuses on parents' rights rather than on the child.  Others argue that the current terminology is neutral, flexible, well understood and that change could engender litigation, at least in the short term.  The Family Law Committee considered the five options articulated for public discussion in the public consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada First.  The five options are:

The Family Law Committee does not recommend Option 5 (shared parenting) for several reasons.  Parenting arrangements should be determined on the basis of the best interests of the child in the context of the particular circumstances of each child.  There should be no presumptions in law that one parenting arrangement is better than another.  It is also a term that seems to focus on parents' rights, rather than on the child.  Its meaning and application is ambiguous and this itself may promote litigation.  The Family Law Committee recommends that legislation not establish any presumptive model of parenting after separation, nor contain any language that suggests a presumptive model of parenting.  The fundamental and primary principle of determining parenting arrangements must continue to be the best interests of the child.

Fundamentally, the Family Law Committee recognizes that any reform should be aimed at clarifying parenting responsibilities and helping parents focus on the needs of the children.  Any terminology needs to be sufficiently flexible to respond to the range of needs and circumstances of children and their parents.  It is the workability of the arrangements rather than the terminology that matters most.

In general, the Committee believes that options 2, 3 or 4 could meet these principles for reform, depending on the specific statutory language and the supports available to promote implementation and understanding of the concepts.  All of these options could clarify the decision-making responsibilities of parents and unbundle the decision-making requirements to make it clear that parental responsibilities can be shared by, or divided between, the parents in a way that meets their children's best interests.  It is recognized that there may be difficulties if the current terminology is discarded, particularly with respect to international enforcement of Canadian orders, and the potential for increased litigation with the introduction of new terminology.  The Family Law Committee recommends that, where jurisdictions determine that their legislative terminology should be changed or clarified, any amendments to legislation should be child-centred, focus on parents' responsibilities to understand and meet their children's needs, and promote the positive and safe involvement of both parents.  It is agreed that Options 2, 3 and 4 could meet these criteria and that Option 5 does not.

Family Violence

The Divorce Act should explicitly address family violence issues and the current emphasis in the Divorce Act on maximizing contact must be appropriately balanced against the need to protect children from family violence.  Making one criterion more important than another seems contrary to a child-centred approach.  The Family Law Committee recommends that, with a view to ensuring that no court orders are made which may result in prejudice to the safety of children and place them at risk,

  • there be no legislative presumptions regarding the degree of contact a child has with his or her parents; and
  • legislative criteria defining best interests include, as factors to be considered,
    • any history of family violence and the potential for family violence; and
    • facilitating contact with both parents when it is safe and positive to do so.

The Family Law Committee also recommends that governments work to strengthen supports to families exposed to family violence, including crisis counselling programs and counselling programs for children exposed to family violence.

High-Conflict Relationships

It is difficult to adequately define high-conflict cases, other than those involving family violence, in a way that lends itself to a legislative response or criteria.  The best approach to high-conflict cases involves finding better ways to identify them in order to intervene earlier and more effectively, and services which help parents focus on their children's needs and improve their communication and conflict resolution skills.  The Family Law Committee recommends that high-conflict cases be addressed through a mixture of services and procedural supports to minimize the negative impact of conflict on children and families.

Addressing Children's Perspectives

In order to determine the best interests of the child, decision makers need to hear the children's perspectives on the way their parents propose to care for them.  The desirability of giving the child a voice in the decision-making process must be balanced against the need to shield the child from parental conflict and prevent the child from becoming embroiled in it.  The Family Law Committee recommends that each jurisdiction review its legislation, procedures and services to ensure that:

  • the parents and the courts have access to information on the child's perspectives; and
  • the information is obtained from the child and is communicated to the parents and the court where necessary in a way that is appropriate to the child's best interests, age and maturity, and in a way that the child does not feel responsible for the custody decision.

Meeting Custody and Access Responsibilities

Although a considerable amount of attention is paid to the issue of wrongful denial of access, there are also problems of failure to exercise access and difficulties respecting enforcement of a right of custody.  Access enforcement is not an easy problem to resolve given the wide range of circumstances in which it is an issue, and given that decisions must be made in the best interests.  Moreover, the actual level and nature of access problems are not clear.  Rather than focus on punitive responses, strategies may need to focus on preventing conflict situations or misunderstandings that lead to access denial or non-exercise of access.

Although the Family Law Committee has identified a number of areas where improvements could be made to child custody and access enforcement legislation, and to legislation implementing The Hague Convention on the Civil Aspects of International Child Abduction, more work is needed to explore these options, to analyze work currently underway internationally, including a recently released British report, and to provide Deputy Ministers with refined recommendations.  The Family Law Committee recommends that, recognizing the breadth and complexity of the issues involved in child custody and access enforcement and parental child abduction cases, further detailed work be undertaken.

The current provisions in the Divorce Act governing jurisdiction in custody issues have resulted in the custody of children habitually resident in one province being determined in the courts of another province with which they have a more tenuous and/or recent connection.  Some, but not all, provincial and territorial legislation clearly sets forth jurisdictional rules for the determination of custody and access cases based on the habitual residence of the child, with certain consent and safety-based exceptions.  The Family Law Committee recommends that the Divorce Act and provincial and territorial legislation provide that the courts of the province or territory of the child's habitual residence have jurisdiction to determine custody and access, subject to exceptions based on consent or safety considerations, and taking into consideration, as applicable:

  • the jurisdictional provisions in some provincial custody and access legislation;
  • the provisions of child custody enforcement legislation; and
  • The Hague Convention on the Civil Aspects of International Child Abduction.

Public and Professional Information and Education

Public and professional information and education programs and services help families cope with the emotional trauma of separation, enable parents to make informed choices about parenting and assist parents to co-parent as effectively as possible.  This is done by providing information to families, and to professionals working with them, on legal issues, child development, dispute resolution options, methods of communication and resources, and by teaching parents skills and techniques to improve their co-parenting abilities.

The federal, provincial and territorial governments have all been active in recent years in developing and implementing various parent information services and programs.  Examples include toll-free telephone lines, booklets, pamphlets, Web sites and videos.  The Family Law Committee recommends that information on existing and new laws and services be disseminated to the public as widely as resources permit, and through a variety of communication modes, to be accessible to all families with children.

Parent education and information programs help parents understand the demands and challenges of parenting after separation and divorce, teach them new ways to communicate and resolve day-to-day disputes, and explain appropriate alternatives to the formal court process to settle any issues they may have.  The programs reduce conflict, frustration, confusion and costs to parents and to the legal system.  The Family Law Committee recommends that governments support parent education-mandatory or voluntary-which is broadly accessible and meets linguistic, cultural, geographic, and general parenting, legal and process information needs.

Lawyers, social workers and other professionals involved with families and family separation issues, including advocates, mediators and counsellors, are key sources of information for parents.  Professionals helping families deal with family breakdown and parenting issues need to have a solid understanding of the issues-emotional and legal-that families experience.  Professional organizations should consider requiring members to keep abreast of the key issues, the wider social dynamics that affect families, and the resources and services available to assist separating and divorcing families, and providing training to facilitate this.  The Family Law Committee recommends that support be given to professionals working with families during and after separation and divorce, such as lawyers, social workers, and psychologists, to engage in continuing education and training in child custody and support law, family violence issues, the dynamics of family separation and divorce and the effects on children.  Professional organizations should be encouraged and supported to facilitate professional development in this area, and to consider certification approaches incorporating professional development in this area.  Jurisdictions should work with law societies and the bar associations:

  • to explore options for legal professional development and training in appropriate ways to interact with children of separated parents in the litigation process; and
  • to review practice codes with a view to ensuring that they set out counsel's role and obligations in a way that adequately safeguards children's best interests, and to ensuring that counsel have an obligation to explore appropriate alternative dispute resolution options with their family law clients.

The provinces and territories have developed an inventory of the many custody and access services they currently provide, An Inventory of Government-Based Services That Support the Making and Enforcement of Custody and Access Decisions.  This inventory should be maintained and updated periodically.  The Family Law Committee recommends that the Inventory of Government-Based Services That Support the Making and Enforcement of Custody and Access Decisions should be maintained and updated periodically.

Dispute Resolution

Access to appropriate and timely dispute resolution options, either as part of the court process or independent of it, can allow parties to narrow the issues in dispute, resolve issues more quickly, and minimize parental conflict, emotional hurt and financial costs. The Family Law Committee recommends that governments and the professions work together to support the development of a broad spectrum of dispute resolution services, including mediation, arbitration and collaborative law, and other supports to parents to help identify and narrow the issues in dispute, such as custody and access assessments and parent education.

While mediation should be encouraged in appropriate cases, it is not recommended that mediation be mandatory.  Such an approach is inconsistent with the basic premise of mediation as voluntary, consensus-based decision making.  It is also not consistent with a focus on child-centred decision making.  It could put the child or a parent at risk and, where both parents are not comfortable with the mediation process, it may itself generate, rather than reduce, conflict.  The Family Law Committee recommends that:

  • mediation not be made mandatory; and
  • mediation be available for informed participants of relatively equal bargaining power where participation of both parties is voluntary and where appropriate screening exists to ensure that family violence cases are identified and generally screened out.

Traditionally, lawyers assist parties in resolving disputes through negotiation, and where this fails, advocate their clients' cases in court.  Recently, lawyers have developed a different approach to family dispute resolution:  collaborative family law, in which lawyers are retained for the sole purpose of helping the parties to reach an agreement and cannot represent the parties in any court proceedings.  The Family Law Committee recommends that jurisdictions encourage the development of collaborative family law practice as a further option for parties to consider as a method of dispute resolution.

The Divorce Act requires lawyers to advise clients of counselling and mediation facilities, and to discuss the advisability of negotiating custody and support issues.  Given the range of dispute resolution mechanisms that has been developed, from arbitration to collaborative law, the current requirements in the legislation, and any similar provisions in provincial and territorial legislation, may be too narrow.  The Family Law Committee recommends that family law legislation require lawyers to advise clients of the full range of available dispute resolution options.

Currently, under the Divorce Act, a judge can adjourn the divorce proceeding to allow the parents to attempt reconciliation.  It may be that the Divorce Act should also expressly state that a judge may adjourn the proceedings so that the parties can attempt to resolve their issues outside of court through mediation or other non-judicial dispute resolution mechanisms.

Courts across Canada have been attempting to promote early resolution of cases through a variety of mechanisms.  The Family Law Committee recommends that courts make appropriate use of judicial and non-judicial settlement approaches to avoid the hardening of positions and to promote early settlement and narrowing of issues in dispute.

Case management systems support early settlement of disputes and reduce unnecessary delay and expense by having judges and others actively manage a case by conferences and the imposition of timelines.  Experienced court personnel or judges focus the parties and their lawyers on the issues that are truly in dispute, encourage agreement, and attempt to ensure that unresolved issues are heard as efficiently as possible.  In family law matters, case management systems need to be sensitive to the particular issues families face.  In particular, they have to ensure that in urgent matters, such as those involving violence or wrongful removal of a child, case management procedures do not impede families having their case heard by a judge without delay.  The Family Law Committee recommends that case management systems provide for expedited access to judicial decision making where it is in the best interests of the child to have the matter dealt with on an urgent basis.

Court orders should be in clear, unequivocal language, setting out each parent's responsibilities to the children.  This is important both for enforcement purposes and also to provide rules and guidance to the parents to help them resolve issues as they arise.  The Family Law Committee recommends that orders be worded clearly and consistently to ensure that the parties understand their obligations and that the orders can be enforced.

Parenting arrangements set out in a court order may have to be changed many times over the course of a child's life.  Even where parents agree on the change, they cannot change the order without a further order.  In many cases, however, there is no need for a court hearing, and if there is one, it may itself trigger discord.  The Family Law Committee recommends that procedures for variation of orders provide that, where there is consent, custody, access and child support orders can be varied expeditiously and without a court hearing.

Enforcement

As noted above, enforcement of access denial and failure to exercise access is a problematic policy area.  The magnitude of either problem is difficult to assess; the problems arise in varied circumstances; and it is difficult to fashion remedies which may not have unintended adverse effects on the child.  Certainly, proactive approaches such as parent education programs may help to prevent the problem.  The Family Law Committee recommends that problems of access denial and failure to exercise access be monitored through research to identify best practices and the most effective ways of dealing with these problems, and that further research be undertaken to develop and assess innovative remedial approaches.

Family Legal Aid

Legal aid for family law matters is available in all jurisdictions but the availability of legal aid is limited and the range of family law matters that are covered varies considerably from one jurisdiction to the next.  In a few jurisdictions, family legal aid is available only in cases where domestic violence is present.  There is a serious concern that lack of access to family legal aid can result in very negative consequences for children and their parents.  In addition, large numbers of self-represented litigants (and the number appears to be increasing) strain the court system.  The Family Law Committee recognizes that issues relating to legal aid family law services are currently being reviewed at the national level, and that there are other options that should be considered for assisting families in dealing with parenting legal issues, such as law help lines and manuals to help self-represented parties.  The Family Law Committee recommends that governments continue to work at improving components of the legal system that are critical to families' access to the legal system to resolve family breakdown issues, such as family legal aid.

Completion of Family Court Models

By combining a streamlined court structure and a specialized judiciary with services such as mediation and assessments, unified family courts provide an effective mechanism for resolving family disputes.  The Family Law Committee recommends that the federal government work with jurisdictions to establish unified family courts, where there is a jurisdictional request.  Further, it is recommended that persons appointed to, and serving in, specialized family courts have expertise in family law issues.

Research and Further Work

This report draws upon a considerable body of research conducted in Canada and elsewhere, including work undertaken through the Family Law Committee's custody and access project.  The Family Law Committee believes that further research is required to continue to develop and enhance our understanding of families, family transitions and family-law related problems and issues.  The Family Law Committee recommends that there be a continued national emphasis on research and evaluation to monitor trends and the impact of reforms in law and services.

In the course of its review of the family justice system in Canada, the Family Law Committee identified several particular issues that require further work or research.  For example as noted above, further detailed work is needed in the area of custody and access enforcement and parental child abduction.  Another area is provincial and territorial legislation governing custody and access rights and responsibilities upon the birth of a child to unmarried parents, and legislation respecting the establishment and recognition of parental status.  The legislation varies from province to province.  Considering the increasing number of children who are born to parents who were never married, the Family Law Committee recommends that the provinces and the territories review their legislation respecting establishment and recognition of parental status, and entitlement to custody and access on the birth of a child, with a view to identifying any issues that require a legislative or service response, and making recommendations in the future.

Finally, the Family Law Committee recognizes that its review has not yet sufficiently addressed diversity and Aboriginal issues with respect to family law and family law services.  More work is required to meet this expectation.  The Family Law Committee suggests that more dialogue about the needs of specific communities is necessary.  The Family Law Committee recommends that continued dialogue, research and development be undertaken to address diversity and Aboriginal issues with respect to family law.

As well as reviewing custody and access issues, the Family Law Committee, as part of its on-going work, identified and consulted on specific issues related to child support guidelines.

The Federal Child Support Guidelines came into effect on May 1, 1997.  Since that time, all of the provinces and territories have enacted child support guidelines legislation.  The Family Law Committee believes that, in general, the Guidelines have succeeded in meeting their objectives. However, some fine-tuning is required to provide greater clarity while maintaining flexibility. 

Taking into account the results of the 2001 consultation as well as previous consultations on other issues, research results and case law analysis, the Family Law Committee makes the following recommendations.

The 40 Percent Rule

When a parent exercises access to, or has physical custody of, a child for forty percent or more during the year, the court has broad discretion to order a support amount different from the amount prescribed in the Guidelines.  While the 40 percent time threshold has been criticized because it links child contact and support, no alternative has been found that demonstrably improves the test.  The Family Law Committee recommends that no change be made to the 40 percent threshold rule.  However, further guidance should be provided in the child support guidelines on how to determine or analyze the elements that contribute to the determination that the 40 percent rule has been met.

Presumptive Formula

Broad discretion to determine the amount of support in shared custody situations has lead to inconsistent results.  To improve certainty and predictability while maintaining flexibility, the Family Law Committee recommends that the current factors used to determine the amount of support in shared custody situations be replaced by the use of a presumptive formula.  The formula amount would be the difference between the table values for each parent given the total number of children in the shared custody arrangement, unless that amount is deemed inappropriate based on, for example, how the parents share the child's expenses.

Definition of "Extraordinarys,"

Section 7 of the Guidelines provides for a proportional sharing for six categories of special child-related expenses.  Included in those categories are extraordinary expenses for education and extracurricular activities.  The term extraordinary has been interpreted differently across the country, leading to some confusion and inconsistency.  In order to increase predictability and certainty, the Family Law Committee recommends that the term extraordinary be defined in the Guidelines.

Disclosure

For children at or over the age of majority, the guidelines do not require disclosure of information relevant to the child's ongoing entitlement to support.  To ensure transparency and accountability, it is proposed that the Guidelines be amended to require such disclosure.  To insulate the child from direct involvement in the litigation, the amendment will require the recipient parent, not the child, to provide the information.  The Family Law Committee recommends that no change be made to the provisions regarding the eligibility for support of a child at or over the age of majority.  It is recommended that the Guidelines be amended to require recipients of support for children at or over the age of majority to disclose information respecting the child's ongoing eligibility for support.

If payment of the Guidelines amount would cause either parent or a child to suffer undue hardship, judges may order a different amount of support.  Courts are currently applying the section as intended.  In many cases where the paying parent resides far from the child, courts are making provision for high transportation costs incurred by the parent exercising access by way of a separate order.  The Family Law Committee recommends that no changes to deal specifically with high access costs be made to the Guidelines.  These situations should be dealt with on a case-by-case basis and any accommodation appropriate to a particular case should be addressed as part of a custody and access order.

A person who "stands in the place of a parent," to a child may have child support obligations similar to a natural parent.  Broad judicial discretion to determine the amount of child support for these "step-parents" has led to inconsistencies.  However, the question of how to allocate child support among natural parents and step-parents is complex and largely driven by the facts of each case.  A rigid formula could create unfair results.  The Family Law Committee recommends that no changes be made to the provisions in the child support guidelines respecting the obligations of those who stand in the place of a parent.

When the Guidelines were adopted, the intent was for changes to be made to the tables when changes to the tax rates significantly affected the table amounts.  The Family Law Committee recommends that the child support tables be updated every five years, or more often, if there are changes to federal, provincial or territorial taxes that would have a major impact on the table amounts.

Full citations of research papers and other documents referred to in the footnotes can be found in the References section at the end of the report.  Appendix D contains a list of research reports produced under the custody and access project.  Appendix E contains a list of all the recommendations made in this report.

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