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

Part 1: Custody and Access

A. FAMILIES TODAY

Over the course of a child's lifetime, his or her family may form, break up and re-form.  The initial family unit may consist of one or both parents and one or more children.  Often, grandparents, aunts, uncles or other relatives form an extended family to care for the child.  Laws and services directed at the care and upbringing of children seek to recognize and accommodate the diversity of family forms in which children live.

Children are society's future.  Their health and well-being should be a primary concern.  Policy-makers need to consider how to respond to research and experience that demonstrates children's well-being can be harmed by separation and divorce, and the restructuring of the family.[4]  Problems faced by children during family restructuring seem to be increasing.  Social change has resulted in an increase in single-parent families and blended families and the potential for children to face multiple family restructurings.[5]

Recent surveys of family life have revealed four main trends.  First, most children are born into two-parent families, but an increasing number of these parents are not married.  Second, children are increasingly experiencing life in a single-parent family and doing so at an earlier age than previously.  For example, an analysis of data from the National Longitudinal Survey of Children and Youth (NLSCY) shows that one in four children born in the early 1970s saw their parents separate by age fifteen.  Just over ten years later, one out of four children born in the early 1980s had experienced their parents' separation by age ten.  By the late 1980s, almost one in four children born in 1987 to 1988 saw their parents separate by age six.[6]  Third, children born to common-law couples face a greater risk of experiencing parental separation than do children whose parents are married.[7]  Fourth, more children are subject to multiple family structures.  This is so because children are younger at the time of the first family separation and their parents are more likely to re-couple (perhaps more than once) with other adults, some of whom will also have children from another relationship.

An increasing number of Canadian children live with only one parent, while the other parent lives in another family structure.  Many children have parents who are not married.  A recent analysis of NLSCY data shows that in the early 1960s over ninety percent of all births were to two married parents who had never cohabited before marriage.  In contrast, by 1993–94, less than forty percent of all births were to married parents who had never cohabited before marriage, and twenty percent of children were born to unmarried parents.  This trend is strongest in Quebec, where only twenty-three percent of births were to parents who married without first living together, and forty-three percent of births were to common-law couples.[8]

Children, regardless of their family structure, need stable and nurturing environments, protection from negative influences such as conflict, poverty and violence, and positive relationships with at least one adult.[9]  Problems faced by a family prior to separation, such as poverty or ineffective parenting, may often be aggravated by divorce or separation.  Parents who are emotionally or financially challenged by the separation or divorce may feel bewildered, angry, victimized or diminished by the changes in the family structure.  Children may feel that they are responsible for the family breakdown, isolated from previous support systems and emotionally depressed.

The NLSCY shows that children at risk (e.g., low socio-economic status, low parental education, family dysfunction, prenatal problems, and children of single parents) have fewer behavioural problems when raised with positive and consistent parenting.  Parenting style, particularly a hostile parenting style, has a more negative effect on children's behaviour than other factors such as income or family structure.[10]

B. THE FAMILY LAW COMMITTEE PROJECT

The Deputy Ministers Responsible for Justice directed the Family Law Committee to make custody and access issues a priority, both as a matter of family law reform and as an integrated justice services project.  The project was given the following mandate:

Identify and make recommendations respecting custody and access issues that arise before, during and after family disputes.  This will involve developing a strategy to deal with legislative and service delivery issues requiring immediate priority for action, and also identifying an integrated, multi-sectoral process to respond to the longer term legal, environmental and service needs of children and families, for the purposes of:

  • responding nationally to the public concerns which continue to be raised concerning current practice, law and services, available in the custody and access area;

  • promoting the development of a public consensus or dialogue on appropriate types and levels of response; and
  • developing integrated and diversity sensitive approaches to services that better serve the client and the public interest.

In December 1999, the then Ministers Responsible for Justice reviewed and approved the work plan for the project, the plans to hold public consultations and a set of principles to guide family law reform.  As well, the federal Minister, with the concurrence of her provincial and territorial colleagues, also agreed to refer the recommendations of the Special Joint Committee on Child Custody and Access[11] to the Family Law Committee to include in its review.

In March 2001, a consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada,[12] was released and the public was invited to respond both in writing and through workshops that were held from April to June 2001 in every province and territory.  The issues identified and discussed in Putting Children's Interests First reflected concerns that had been raised nationally on custody, access and child support.  The consultations provided a wide range of comments on these issues.  A review of the report from the consultations[13] reveals a general consensus on certain broad themes, including:

  • the need to maintain a child-centred focus, including retention of best interests of the child as the key question to be addressed in determining family responsibilities;

  • the need to enhance the family law system and support services to more adequately ensure that the best interests of children are indeed served when dealing with family breakdown;

  • a recognition of the importance of children's need for physical safety, and emotional, psychological and financial security;

  • the importance of encouraging and supporting good parenting practices during and after separation and divorce; and

  • the need for continued flexibility in approaches to ensure that the unique needs of children and families during and after separation and divorce, including extended family, cultural and social needs, can be identified and addressed on an ongoing basis.

While a diversity of views was expressed on most issues, the workshop format encouraged participants to listen to and learn from the perspectives of different people concerned about children and families experiencing divorce and separation.  Workshop participants, in total about 750 people, represented social service, education, enforcement, legal community, child welfare, health, women's interest groups, men's interest groups, grandparents' groups, non-custodial parents' groups, and Aboriginal organizations.  As well, there were youth workshops.

The Family Law Committee also reviewed the recommendations of the Special Joint Committee on Child Custody and Access.  In its report, For the Sake of the Children, the Committee made forty-eight recommendations on custody, access and child support, including legal and service issues.[14]  The Committee's recommendations concerning the issues addressed in this report are discussed in the relevant sections of this report.

The Family Law Committee's work on the custody and access project was informed by research on various topics conducted before and during the life of the project by the federal government, and through other consultations, research and reviews conducted at the provincial and territorial level.

For example, Saskatchewan began a review of service and legislative issues with the March 1998 release of Promoting Resiliency in Children and Families:  A Discussion Paper on the Effects of Separation and Divorce.[15]  The paper was available for public response and was discussed in five multi-sectoral workshops.  The results led to development of another paper, Promoting Resiliency in Children and Families:  Identifying Priorities,[16]released in fall 2000 for public discussion and a further round of multi-sectoral workshops.  Participants in both workshop sessions have provided feedback that helped direct provincial approaches to participating in the national Putting Children's Interests First:  Custody, Access and Child Support in Canada consultations.[17]

In Alberta, the Unified Family Court Task Force submitted a report recommending a single court to deal with family matters.[18]  The Government of Alberta has also initiated the Alberta Family Law Reform Project.  Public consultations on family law reform began in February and March 2002.

On April 29, 2002, Children Come First:  A Report to Parliament on the Provisions and Operation of the Federal Child Support Guidelines was tabled in the House of Commons by the federal Minister of Justice.[19]  The Report to Parliament contains the recommendations for amendments to the Federal Child Support Guidelines found in Part 2 of this report entitled Child Support.  The federal, provincial and territorial governments worked together through the Family Law Committee to develop these recommendations.  The Report to Parliament also provides information on how governments worked together to implement the guidelines across Canada through the delivery of family justice services, carrying out research projects, conducting public awareness and information campaigns for parents, lawyers and judges and improving the enforcement of support orders.

The Report to Parliament also outlines the steps that governments have taken to work together to improve the enforcement of support obligations.  For the family law justice system to work, family support obligations must be enforceable.  In Canada, the provinces and territories are responsible for the enforcement of family support orders.  However, over the past six years, the Government of Canada has taken a more active role in enforcement.

The federal government has concentrated its enforcement efforts in the areas of co-ordination and enhanced federal enforcement tools.  It has established a federal enforcement policy unit, increased project-based funding, and launched a comprehensive program of research on enforcement and compliance issues.  The results of some of the research are expected this year, and they will be extremely valuable in assessing ongoing efforts and, therefore, in planning for the future.

The scope of the custody and access and child support project did not include assessment of support enforcement policy or program issues.  For more information about federal/provincial/territorial work on enforcement of support, the reader is referred to the Report to Parliament.

The Deputy Ministers Responsible for Justice have asked that all policy work include discussion of diversity issues.  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.  Although Aboriginal workshops were held in Ottawa in June 2001,[20] and research was conducted in Nunavut,[21] the Family Law Committee suggests that more dialogue about the needs of specific communities is necessary.

Recommendation 1

It is recommended that continued dialogue, research and development be undertaken to address diversity and Aboriginal issues with respect to family law.

It is the hope of the Family Law Committee that distribution of the report from the national consultations, availability of research conducted for this project, and this report itself will continue to foster dialogue, discussion and the development of consensus on the important issues addressed in this report.

C. PRINCIPLES AND OBJECTIVES

As mentioned above, Ministers Responsible for Justice approved a set of guiding principles for family law reform in December 1999.  These principles were included in the text of the consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada,[22] and during the consultations there appeared to be agreement with these principles.  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.

Recommendation 2

It is recommended that the principles and objectives of family law reform be as follows:

Principles
Objectives

D. THE ROLE OF FEDERAL, PROVINCIAL AND TERRITORIAL LAWS

Custody, access and child support are areas of shared constitutional jurisdiction because of Parliament's responsibility for marriage and divorce and the provinces' responsibility for property and civil rights.  The Divorce Act applies to custody, access and child support when these issues are determined under that legislation during 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 when divorcing parents choose to proceed under provincial legislation during 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, for example, establishment of parentage, adoption, change of name, child protection, guardianship of the estate of the child and consent to medical treatment.

Thus there are at least fourteen different statutes and fourteen different statutory provisions governing custody and access in Canada.  Some provinces and territories have more than one statute that affects custody and access.  Appendix C outlines the statutory provisions in all Canadian jurisdictions.  None of the provisions is exactly the same, although there are important common elements.  All provide that the governing and fundamental principle is the best interests of the child.[23]  All use the term custody, although is it is not always the primary term used to define parental rights and responsibilities.  For example, in British Columbia and Alberta, guardianship is the primary term employed in the legislation.

The specific definition or use of the term custody varies from statute to statute, but, except in the Quebec legislation, the term usually refers to all the rights and obligations related to the care and control of a child, including legal custody, the responsibility to make all important decisions about a child's care and upbringing, and physical custody, the responsibility for the everyday physical care and control of the child.  This bundle of rights and responsibilities is sometimes called "guardianship of the person" of the child.  It generally does not include responsibilities related to the children's property or estate, which is often referred to as "guardianship of the estate" of the child.[24]

For example, in Saskatchewan, The Children's Law Act, 1997 defines custody to mean "personal guardianship of a child and includes care, upbringing and any other incident of custody having regard to the child's age and maturity."[25]  Under Quebec law, in contrast, custody has a narrower meaning.  It refers only to physical custody.  The Quebec concept of parental authority is closer to the concept of custody as it is used in other Canadian jurisdictions.  The common denominator across Canada is that, at the least, the term custody implies the actual physical care and control of the child and the practical day-to-day decision making required to fulfil that responsibility.

Access, as it is used in the legislation, refers to the non-custodial parent's contact with the child, through visits or otherwise.  Some of the statutes contemplate a somewhat broader definition of access than do others.  For example, some legislation specifies that access includes the right to be provided with important information about the child.  Others specify that this is a right to information only, and not a right to be consulted or participate in decision making.

Joint custody, while not defined per se in any statute, is a term usually used to refer to a situation where both parents have legal custody of the child, although one parent may have physical custody, or primary physical care and control.  Its usage is akin to the Quebec concept of joint parental authority.

Shared custody is not a term currently used in Canadian custody legislation.  It generally refers to a situation where parents share physical custody, as well as legal custody.[26]

Canadian legislation generally allows the court wide discretion to fashion the kind of order it considers appropriate in the circumstances.  The courts can and do order a wide variety of parenting arrangements, both under the Divorce Act and under provincial and territorial legislation.  Some examples are:

  • orders that do not use the terms custody or access at all;

  • sole custody to one parent with access to the other;

  • joint custody with primary residence, or primary physical care and control, to one parent, and physical care and control to the other parent at specified times or times to be agreed;

  • joint custody, but with one parent to have ultimate decision-making authority;

  • shared custody;

  • joint parental exercise of authority; and

  • joint guardianship.

The legislation also does not preclude the parents from entering into, by agreement, whatever parenting arrangement in their view best suits their divided family.  Parents are not bound to use the statutory terminology in their own agreements, although precision in a custody order is essential to enforcement should disputes arise.

E. OVERVIEW OF RESEARCH AND CONSULTATIONS

In recent years, a number of countries have made significant changes to their laws governing child custody and access.  The Family Law Committee studied changes in the State of Washington, the United Kingdom, and Australia in some detail. [27]  These jurisdictions were chosen for several reasons.  Each has made significant changes to the terminology of custody and access.  The new legislation has been in effect in these jurisdictions for a number of years and, as a result, some evaluation material concerning the impact of the legislation is available.  Although none of the evaluations are conclusive in terms of the effects of the legislation, the available research does indicate that the legislation has not yet had positive benefits in terms of reducing litigation and conflict between parents.  The Family Law Committee also looked at custody and access reforms in civil law countries, particularly in France.[28]

This report also draws upon research conducted here in Canada.  Much of this recent research has been undertaken in co-ordination with the Family Law Committee.  Most of it is fairly recent, having been undertaken in the last four years following the release of the Special Joint Committee on Child Custody and Access report and its suggestion that further Canadian research was needed and should be undertaken.[29]  Different types of research projects have been undertaken, including legal research, empirical research and consultative research.

Examples of the kinds of legal research undertaken include analyses of options for reforming access enforcement or addressing high-conflict cases.[30]  The empirical research includes projects that have looked at available statistical data from existing surveys such as the National Longitudinal Survey of Children and Youth and the General Social Survey,[31] as well as related sociological reviews of available literature on topics of concern such as false allegations of abuse and high conflict.[32]  The consultative research includes consultations with the general public[33] as well as consultations with professionals who work with families in transition.[34]

This report draws on this Canadian research.  Throughout the report, where appropriate, research results are offered and references to the research are provided for the interested reader.  Taken as a whole, the research is another example of the fruits of federal-provincial-territorial co-operation and the benefits of informed policy development.  The body of research is fairly large, but it is the view of the Family Law Committee that further research is required to continue to develop and enhance our understanding of families, family transitions, and family-law related problems and issues.[35]

Recommendation 3

It is recommended that there be a continued national emphasis on research and evaluation to monitor trends and the impact of reforms in law and services.

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