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

Part 1: Custody and Access (cont'd)

G: Service Options and Responses

The Family Law Committee has been asked to consider both legislative and service responses to the problems facing children when their parents separate.  The provincial and territorial experience has been that services are critical to support the policy and legislative intent to help families deal with the difficulties of separation in the healthiest way for the parents and their children.  A focus on legislative issues in isolation from service and practice needs would fall short of addressing the complex needs of families.

The program of research in custody and access supports this position.  Practically every research report produced recommends programs and services for parents and children.[85]  The public demand for a wide range of service supports to families was clear in the responses to the Putting Children's Interests First consultations.[86]  As the report on the consultations stated:

In response to a question about what factors enable "good parenting," respondents identified a wide variety of issues relating to the parents themselves and their relationship, the support offered to both parents by the legal system, and the various support services in place.

Respondents stressed the need for improved educational services (for parents as well as the legal profession), support services (such as supervised access centres or "parenting co-ordinators") and legal aid services.  To improve the effectiveness of services, respondents suggested that services be offered in a more co-ordinated, timely and accessible manner.[87]

Moreover, it is clear from experiences in other jurisdictions that legislative change creates an increased demand for services, and those rates of litigation may increase concomitantly with the increasing demand for services.  Change in the law may uncover an untapped dissatisfaction with the family law system and thereby place increased demand on all components of the system at once.  This increased demand may be sustained over the medium term (five to ten years).

For example, the creation and expansion of supervised access facilities accompanied legislative changes in Australia.  These services have proven to be a necessary part of the new system which promotes a child's "right of contact" with both parents.  There is now increased pressure to expand the supervised access services to more locations within the country.  Court applications for residence and contact more than doubled in the year following changes in the legislation, and remained relatively constant at that increased rate over the four years following the change.  Eighty new magistrates were appointed to deal with the increased demand for court adjudication.[88]

Recognizing the shared jurisdiction in family lawand shared concern with the welfare of Canadian children and families experiencing divorce and separation, the Family Law Committee believes that there is a role for provinces, territories and the federal government to support service delivery.

Five major themes for service development were presented to Ministers when they met in September 2001.  They are public and professional information and education, dispute resolution, enforcement, family legal aid, and completion of family court models.  These service responses require action not just by government, but also by individuals, communities, and professionals within an integrated framework.  These sectors working together can provide an integrated response to the evolving needs of children and families going through family transition.

Public and Professional Information and Education

The goals of public and professional information and education programs and services are to help families cope with the emotional trauma of separation, to enable parents to make informed choices about parenting and to help parents co-parent effectively.  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.  Separating and divorcing parents need information and may need help to understand the types of arrangements they can make for the care of their children, to understand what the impact of the arrangements will be on their children, and to understand what they and their children are experiencing.

Information can help parents and children understand the implications of divorce and separation, their options, and ways to develop positive relationships that sustain new family relationships.  Information is needed at a time of crisis so that parents can focus on immediate decisions and avoid generating unnecessary conflict.  During the divorce process information is important to help ensure that all options are considered and conflict is minimized.  After separation, information can help sustain arrangements and foster co-operation and positive interactions between parents and between parents and children.  Indeed, families on the brink of separation may still withstand separation with appropriate information and support.

Parent Information

A major response of participants in the national consultations, Putting Children's Interests First, was to call for increased access to timely information in a variety of forms.  Separated and separating parents need information about:

  • parenting arrangements (for example, residence, time with each parent; day-to-day decision making, child's perspectives and developmental needs, major decision making, mobility);
  • custody and access law;
  • dispute resolution options (for example, mediation, conciliation, arbitration, parenting plans, negotiation, court proceedings); and
  • resources and services that are available in their community.[89]

In search of this information, parents may speak with friends, family members, counsellors, doctors, religious leaders, teachers, childcare workers or other community members.  Often, friends, relatives or community services lack the information they need, or give incorrect information, and parents may receive different and at times conflicting advice from these community sources.  Many parents turn to lawyers for this information.  Lawyers in private practice must charge clients for their time spent in giving this information.  Since legal expertise is not required to provide basic information, this is not always the most efficient way to use a lawyer.  In addition, some lawyers may not have all the necessary information.  Much of the needed information is provided in a variety of forms by government and community agencies.[90]

The federal, provincial and territorial governments have all been active in recent years in developing and implementing various services and programs in this area.  The following are examples of some of the ways family law information can be made more accessible to the public, resources permitting:

  • Print materials  Publications that explain in plain language the vital information (parenting arrangements, the law, dispute resolution options, available services) should be broadly available.  Ideally, the print materials should be available in different languages where this is necessary to reach all members of the community.  For example, in Manitoba, Family Law in Manitoba, a booklet containing comprehensive, basic information on all these issues as well as on family law generally, is widely distributed to a variety of service providers for dissemination to parents throughout the province.

  • Telephone lines  Many jurisdictions operate toll-free telephone lines where inquiries from the public are answered by knowledgeable staff who will refer callers to appropriate resources for more detailed information, assistance and legal advice.  British Columbia currently operates a toll-free family justice telephone enquiry line that provides taped information on a variety of topics.
  • Electronic information  Many families now have computers, and can access information in this form.  For example, Manitoba is currently expanding its Parent Education Program to enable delivery of information in CD-ROM format so those living in remote communities, those who are house bound or those who are simply interested in the topic can have access to information.
  • Internet sites and email  As increasing numbers of people gain access to the Internet, this is becoming a more important method of disseminating information.  Much family law information, such as legislation, is now readily accessible on the Internet.  It can also be used to provide information in language intended for the layperson and targeted at families experiencing custody and access issues.  Many governments, as well as providers of public legal information, are already making increasing use of government websites and the Internet to improve access to informational materials and to maintain up-to-date information products.  For example, Manitoba's family law booklet, mentioned above, is available on the Manitoba Justice website.  British Columbia recently began operation of a Family Justice website.  The site provides short, clear explanations and answers to over a hundred questions about the basics of family law, options for dispute resolution and services available to help parents.
  • Videos  These may be able to convey information in a way that is more easily understandable for many families, especially for families who have literacy limitations.

Some jurisdictions provide information to the public through information centres where the public can attend and speak with an individual and obtain print information.  For example, Ontario's Family Law Information Centres, which are located in the court building in most court districts, including all Unified Family Court sites, provide information and referral, and other assistance.  Court personnel provide information about court procedure, including court forms, and a lawyer provides summary legal advice.  Some information centres in other provinces offer other services as well.  These are discussed in more detail below.

Recommendation 14

It is recommended 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 Information and Education Programs

Parent education and information programs teach parents how to promote their children's best interests through co-operation and consultation when it is safe to do so.  The aim of these programs is to help parents understand the demands and challenges of parenting after separation and divorce, to suggest new ways to communicate and resolve day-to-day disputes and to suggest appropriate alternatives to the formal court process to settle any issues they may have.  If parents learn basic conflict resolution skills, these skills can help them to lessen conflict or dissension and use positive conflict resolution approaches with their children.  The programs provide parents with a basis for decision making and reduce conflict, frustration, confusion and costs to parents and to the legal system.

Parent education and information programs can play a key role in building awareness and skills for people experiencing relationship breakdown.  These programs, whether voluntary or mandatory, should target people before they begin litigation, and should contain clear guidelines to ensure the streaming of victims of abuse to the court system.  Parent education programs should contain a component about the increased vulnerability of victims of domestic violence and abuse at the time of separation, and should offer an expedited process for accessing the court in these situations.

Currently in Canada, most government-funded parent education programs are connected to a court site, either through intake or delivery.  For example, in Newfoundland and Labrador, the Unified Family Court in St. John's offers a parent education program called Parents Are Forever for parents experiencing separation and divorce.  It is a twelve-hour skills-building course that provides information on the effects of separation and divorce on children and teaches communication and negotiation techniques aimed at reducing parental conflict.

The Alberta Parenting After Separation Seminars provide separating or divorcing parents with information about the divorce process, its effect on their children, techniques for improving communication, legal issues, and encourages the use of mediation and parenting plans.  It is mandatory for parents who wish to access the courts, with exceptions for family violence situations.  An evaluation of the program reported that a significant majority of attendees indicated that they thought the information would help them deal with their children and that the information would help them deal with the other parent in the future.  There was also evidence that the program helped to reduce the level of conflict between the parents.[91]

The evaluation of Manitoba's parent education program, For the Sake of the Children, showed that the program had a positive effect on parents' abilities to cope with separation.  The evaluation report stated:

(I)t is significant that most parents felt they were dealing more effectively with their children, the other parent and their own feelings and reactions at follow-up.  Moreover, most attributed the program as having positively influenced these changes.[92]

The Special Joint Committee on Child Custody and Access recommended that all parents seeking child care orders be required to participate in an education program, and that certification of such attendance would be required before parents would be able to proceed with their application for a parenting order.[93]  Some jurisdictions, such as Saskatchewan and Alberta, already have such a requirement in legislation or court rules.[94]  British Columbia operated a mandatory Parenting After Separation (PAS) program on a pilot basis at two provincial court locations.  The evaluation results indicated that parents who attended were highly satisfied with the information they received, and that they made less use of the court process than did parents in control sites where the program did not operate.[95]  British Columbia now requires attendance at a PAS session in ten court locations.

Some jurisdictions have also invested in programs specifically targeted to helping children understand the dynamics of divorce and separation.  In Saskatchewan, programs for three different age groups of children were developed and are being delivered by community-based organizations to help children understand that the divorce or separation is not their fault, learn how to distance themselves from the conflict between the parents, and learn how to communicate better with their parents on what they are feeling or experiencing.  Such programs are seen as very beneficial in reducing risk factors for children.[96]

Examples of other education and information programs include education for families in transition to help newly created or blended families adjust to new family dynamics, and self-help or targeted materials to help parents understand and make decisions on parenting issues through parenting plans or agreement booklets.[97]

Recommendation 15

It is recommended 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.

Professional Information and Education

Lawyers, social workers and other professionals involved with the family and its separation issues as advocates, mediators or 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 emotional and legal issues that families experience.

Professionals who are better equipped with information and understanding of the issues can help parents make better decisions and reduce the overall level of conflict, confusion and cost.  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.[98]  Research supports the view that people working with separating and divorcing couples, and the families they serve, would benefit from more training and education.[99]  Similarly, consultations with the public support increased training and the expansion of services to assist families in transition.[100]

In addition, there are professionals in a wide variety of front-line government and community agencies, whose primary function may be other programs, for example, crisis shelters, who are in regular contact with separating and separated families.  They can help parents by providing basic information and by making referrals for appropriate assistance.  It is important that these agencies have access to information that they can then share with their clients, and that the workers have training opportunities so that they can better assist their clients.  Governments can provide basic information that can be reformatted or included in publications of these agencies.  Standard workbooks or manuals and training materials could also be developed for use by these agencies.

Some parents have indicated that they feel that the lawyers rather than the parties are directing the dispute or they lack confidence in their ability to instruct counsel.  A family law case involving children is unlike most other areas of advocacy in that all parties to the matter are to make decisions based on the best interests of the child.  This may conflict with the lawyer's traditional adversarial role to advocate the client's position.  Lawyers, as officers of the court that is required to render decisions on the basis of the best interests of the child, need to take this into consideration in their practice.

Recommendation 16

It is recommended 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.

Recommendation 17

It is recommended that jurisdictions 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.
Providing Information to the Public on Government Initiatives

Canadian jurisdictions have developed different approaches and levels of support to provide education and information.  Jurisdictions could benefit from building a more common material base, relying on "best practices," and reducing development costs by sharing experiences.  The provinces and territories have an array of services.  They have developed an inventory of services, An Inventory of Government-Based Services That Support the Making and Enforcement of Custody and Access Decisions, which is available on the Department of Justice Canada website.[101]  This inventory should be maintained and updated periodically.

Recommendation 18

It is recommended that the Inventory of Government-Based Services That Support the Making and Enforcement of Custody and Access Decisions should be maintained and updated periodically.

As well, it would be beneficial if governments could reach a common understanding on how to better disseminate information, and who could and should do so.  This would assist in reducing the confusion for the public between the provisions of the various federal, provincial and territorial laws and services.

Dispute Resolution

Resolving separation and divorce disputes, particularly regarding children, can be distressing to the parents and the children.  Each family experiences different and varying levels of conflict depending on their circumstances.  Situations that were relatively stable can become volatile or conflictual due to a parent forming a new relationship, lingering relationship issues, changing needs of children, or a parent wanting to move for employment or education reasons.

The court process can be very lengthy, leave important issues unresolved for too long and cause more conflict between the parents.  The trial process is not always sensitive to the complex issues that affect children.  Consensual agreements are more likely to endure than decisions made by a judge after a contested court hearing.  Alternate dispute resolution processes can be used to support and facilitate positive conflict resolution approaches.  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.

Parents may become frustrated by the lack of access to legal services and their inability to resolve initial or outstanding problems relating to parenting responsibilities.  This frustration may lead to parents attempting to represent themselves in court proceedings at an emotional and financial cost to themselves, their families and the administration of justice.  Alternatively, parents may decide to act unilaterally and aggravate an already deeply stressful situation by engaging in child abduction or failing to pay maintenance to attempt to force what they believe to be a more "equitable" arrangement.  Again, this leads to increased enforcement costs for the state and emotional and financial costs for the family.

Sadly, some parents may simply decide to try to leave the frustration behind and either fall into a pattern of disrespecting the terms of the order or agreement they feel is unsatisfactory, or walk away from the child's life.  Parents who have become disengaged from their children present complex reasons for their loss of contact with their children including discouragement because of access denial, practical difficulties of distance or work schedule, or an early pattern of no contact.[102]  As well, parents often absent themselves due to concern that ongoing conflict will be harmful to the children.  Obviously, this distancing and dissatisfaction can have a negative impact on parent-child relationships and also fails to provide an opportunity to demonstrate or learn ways to deal with conflict effectively.

A variety of mechanisms exist to help families resolve disputes outside court.  Lawyers play a major role in resolving disputes through traditional legal negotiation.  In many cases however, the settlement comes only after contested interim court proceedings and other steps in the litigation process, too late in the process to avoid the conflict and emotional and financial costs of the adversarial system.  More recently, some lawyers have been engaging in collaborative family law, in which lawyers for both parties are retained exclusively to help the parties reach an agreement and cannot represent the parties in any court proceedings.

Mediation, where a neutral third party helps parents reach an agreement, can be a very effective tool for two parents of relatively equal bargaining strength.  The mediator, who can be a lawyer, social worker or other professional trained in mediation, facilitates discussion and helps them work out their plans for parenting their children after separation.  Parents who participate in mediation still need the help and advice of a lawyer acting in the lawyer's traditional role as an advocate.  Mediation is available in all the provinces and territories and there is an increasing emphasis on it throughout Canada.[103]

A critical aspect of mediation is to ensure that power imbalances are recognized and mitigated and that the safety of the participants is maintained as a primary consideration.[104]  Certainly, these concerns arise in situations where there is a history of family violence, but there may be other circumstances where power imbalances do not allow the parties to meet on an equal basis.  In many cases, those involved in regulating or promoting mediation have established processes to screen out cases where mediation would not be appropriate.  Certainly, the Special Joint Committee on Child Custody and Access, while supporting mediation generally, recognized that screening individuals for family violence issues and assuring the safety of all parties are key to the timing and use of mediation.[105]

Perhaps the strongest and most comprehensive efforts to encourage mediation are being made in Quebec, where parents must attend a mediation-information session before their hearing on custody, access or child support.  Mediation may be voluntary or ordered by the court, which may direct parties to mediation at any point in the proceedings.  The service is free for up to six sessions, each of which lasts about one hour and fifteen minutes.[106]

Manitoba offers a Comprehensive Co-mediation Service where two mediators, one of whom is a lawyer and the other is a family relations specialist, assist parents in coming to an agreement on all issues in dispute.  In the evaluation of the pilot project that preceded the implementation of the current program, eighty-one percent of the respondents said that the most important benefit was that mediation addressed all issues (both child related and financial) requiring a resolution.  Over the course of the pilot project, agreement on all issues was reached in 52 percent of cases, and agreement on some or most issues was reached in a further 31.5 percent of cases.[107] The pilot project also had an internship component to facilitate the accreditation of professionals (lawyers and family relations specialists) from the private sector.

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, 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.

Recommendation 19

It is recommended 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.

Court proceedings to resolve disputes over parenting arrangements are still necessary in many cases, for example, where there is family violence and mediation is inappropriate, or where mediation or other alternate dispute resolution methods have been tried and failed.  However, modifications can be made to the traditional litigation model to encourage settlement of some or all issues early in the court process, and to manage cases more efficiently to reduce costs, conflict and delays.

Case managementprograms support early settlement of disputes by reducing unnecessary delay and expense by having judges and others actively manage the court process.  Experienced court personnel or judges focus the parents and their lawyers on the issues that are truly in dispute, and encourage parents to come to an agreement on other issues.  This may involve pre-trial conferences with the judge or mini-trials, where a judge offers parents his or her assessment of the likely outcome of a trial.  Another aim of case management is to ensure that those cases that do go to full trial proceed as efficiently as possible.

For example, in Manitoba's case management system, case conferences may be set in a number of ways.  Parents may request a case conference date or the court may schedule one on the occurrence of certain triggering events, such as a request for a contested motion date.  Parents must attend all case conferences unless excused by the case conference judge.  The case conference judge assigned to preside at the first case conference will remain available to assist parents and their lawyers in managing the case until it is finished.

In Saskatchewan, prior to proceeding to trial, the parties and their lawyers must meet with a judge in a pre-trial conference.  The process is relatively informal and in most communities can take place within eight weeks from when the parties have the necessary information prepared.  The focus of the conference is on settlement.  A judge is there to advise lawyers and parents on legal issues.  A settlement can be quickly converted into a judgment.  A majority of cases are settled during this pre-trial process.

Some provinces and territories have early settlement programs or procedures, such as allowing judges to direct parents to case management events and to adjourn a case to allow parents to try another method of dispute resolution.  British Columbia has a pilot project in several provincial court registries that requires parties involved in custody, access guardianship or support proceedings to meet separately with a family justice counsellor to go over their options prior to their first court appearance.  Urgent cases can be heard immediately by a judge.

In some situations, where there is consent or the order is unopposed, the court will grant custody, access and support orders without the need for a court hearing.  In Quebec, the Special Registrar can approve any agreement between parties that provides a full settlement on custody and support issues.  The Registrar can hear the parties, separately if necessary, and in the presence of counsel, to determine if the agreement protects the best interests of the children and consent was not given under duress.  If not, the Registrar may refer the matter to a judge.  The intent of this system is "to simplify the procedure and accelerate the processing of cases involving child custody and support."[108]

Independent custody and access assessments are also useful in resolving disputes.  They can help parents focus on the needs of the child and reduce the level of conflict.  They may also induce settlement because many parents are prepared to accept the recommendations of a neutral third party and because parents may feel further litigation would be unproductive as the courts tend to give such reports a great deal of weight.  Research indicates that these services help parents reach settlement in the majority of cases.[109]  The investigations of the Children's Lawyer of Ontario have similar beneficial effects.[110]

In Manitoba, two pilot projects are underway to assist the court and parents to address child-related issues in a timely fashion.  One is the Brief Consultation Service whereby a counsellor is available to the court to meet with parents and see the child within a short time.  The counsellor then provides a brief written or verbal report to the court that may include information respecting the wishes or concerns of the child.  The other pilot project involves the preparation of timely "focussed assessments" which replace traditional comprehensive family assessments in situations involving resolution of a single issue.

Another way jurisdictions have attempted to support and assist separating and separated parents in resolving parenting issues, either prior to court proceedings or after they have begun, is by providing multiple services through one agency or facility.  Parents have better access to information and dispute resolution services when these services are located in one place.  Family Law Information Centres in Edmonton and Calgary provide legal information, help parents deal with the justice system and refer them to other organizations that can help them with court proceedings.  The goal of these centres is to help parents resolve disputes before they go to court.[111]

In British Columbia, Family Justice Centres are located in many communities across the province, but are not attached to courts.  Family Justice Counsellors provide dispute resolution services such as conciliation and mediation, help parents with court applications and help parents negotiate and prepare consent orders and written agreements.

Ontario has Family Law Information Centres (FLIC) in most family court districts, where people can obtain more information about the court process, about alternatives to litigation including mediation, and also obtain summary legal advice from a lawyer.  Information and Referral Coordinators are available in Unified Family Court FLICs to provide referrals to community resources, such as counselling or support groups.  In addition, clients can register for voluntary parent information sessions provided at each Unified Family Court.  These sessions stress the importance of keeping children out of the middle of disputes between the parents.

In Newfoundland and Labrador, Family Justice Services Western (FJSW), a pilot project operating out of Corner Brook, gives separating parents an alternative to the court system.  FJSW is a multi-disciplinary team of professionals who provide on-site education, mediation and counselling services to adults and children involved in divorce, custody, access, or child or spousal support proceedings.  All applications to court are referred directly to FJSW before a court date is issued.  Both parties are expected to attend the initial three-hour education session.

Parents should be able to assess the appropriateness of, and have access to, a variety of dispute resolution processes.  However, these services may not be available or accessible to all parents due to cost, location or awareness of the service.  In many cases, the court should be the arena of last resort in a family law dispute, but inability to access other dispute resolution processes may require parties to follow a traditional litigation route.

Concerns have been expressed that an increasing number of people are appearing in family court proceedings who are not legally represented, either because they cannot afford a lawyer and legal aid is not available, or they prefer to represent themselves.  Where they are unable to represent themselves effectively, this can have negative consequences for the parents and the children.  Without legal advice and representation, some parents engage in destructive behaviour such as child abduction and refusing to pay support.  Moreover, they can drain the legal system through unnecessary and protracted litigation.  While improvements in access to legal aid are one way of dealing with this problem, another approach is to provide self-represented litigants with supports to help them through the court process.  For example, information packages or kits can include information on how to apply for child support, how to apply for custody or access, how to vary an existing order, and how to oppose an application.  The kits can include copies of court forms and instructions on how to complete and file documents.  The services offered by agencies such as BC's Family Justice Centres, and the Ontario and Alberta Family Law Information Centres are another example.

Recommendation 20

It is recommended 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.

Enforcement of Custody and Access

The goals of enforcement services are to ensure that parents fulfil their obligations and responsibilities toward their children, to limit the level of conflict and distress experienced by parents and children due to non-compliance with court orders and agreements, and to increase respect for the administration of justice through compliance with orders and agreements.

Problems arise when parents fail to abide by the terms of their agreement or order and deny access or fail to exercise access rights.  Reasons for doing so can include a misunderstanding about what parents are required to do.  Consequences can range from minor incidents to high-conflict disputes.  Research shows that serious problems with access are much more likely to occur when there is a history of abuse or high conflict between the parents.[112]

For example, the roles of the state and of the parents may become linked when there are allegations of neglect or abuse by a parent that raise a child welfare concern.  In such cases, parental willingness to comply with the terms of orders or agreements relating to the child may decrease and there may also be a decrease in trust between the parties.  Child welfare authorities may face specific pressures when dealing with this type of case as the allegations have implications for family court proceedings.  As well, front line professionals dealing with custody and access matters may become aware of situations of harassment or abuse that call for a remedy beyond the remedies available for custody and access enforcement.  For example, a parent may need to obtain a restraining order against the other parent.

The Special Joint Committee on Child Custody and Access recommended that:

... the federal government work with the provinces and territories toward the development of a nation-wide co-ordinated response to failures to respect parenting orders, involving both therapeutic and punitive elements.  Measures should include early intervention, parenting education programs, a make-up time policy, counselling for families experiencing parenting disputes, mediation and, for persistent intractable cases, punitive solutions for parents who wrongfully disobey parenting orders.[113]

Most of the legal remedies and services recommended by the Special Joint Committee already exist.  The legal issues and remedies are outlined under Key Legislative Issues in this report and the services are described above in this part of the report.  The legislation could possibly cost and the inability of the remedies to resolve the underlying problem.[114]  While court orders and agreements should be respected by all involved, emotional demands and frustrations may lead parties to disrespect agreements or orders they do not see as fair or sufficiently flexible or sufficiently clear.

Custody and access enforcement issues involve a complex web of physical, psychological and emotional needs for children and parents.  Parents need to be supported and encouraged to understand that the children's needs come first and that as parents they have responsibilities to ensure the children's emotional, psychological and financial well-being, to the extent possible.

The Family Law Committee has looked at legislative and service approaches to enforcement both within Canadian jurisdictions and in other countries.  The research in this area consistently underscores the difficulty of developing effective and cost-effective approaches that do not have unintended deleterious consequences for the family.[115]

For example, Manitoba operated an access assistance project from 1989 to 1993.  The two main components of the project were voluntary conciliation aimed at resolving the root problems of the access difficulty, and a legal component whereby court action could be taken at no cost to the parent seeking to ensure compliance with the access order.  Demand for the service was relatively low.  It was found that the families who accessed the service had multiple issues demanding significant time and resources.  The program was not cost-effective and it was discontinued for fiscal reasons.

This is an area where more work is required to identify and develop more effective ways of dealing with the problems some parents experience.  Service responses can help parents to better understand the terms of their agreement or order and provide support to help them work through conflict and focus on the child.  Supervised access services can help parents meet their access obligations in situations where high levels of conflict exist between parents, or where it would be in the best interests of the child for access with the non-custodial parent to be supervised.

Service elements-identified in this report under Public and Professional Information and Education and Dispute Resolution-are also important in helping parents make informed decisions in the area of enforcement.  This includes, for example, parent education, mediation or collaborative law.  Some issues that are particularly relevant to enforcement and require further consideration are outlined below.

  • Protocols may be needed to clearly establish an understanding of the role of child protection authorities in custody and access cases involving enforcement issues.
  • Those involved in providing services to families need to understand the dynamics of family violence and the available criminal and civil remedies.
  • All jurisdictions may need to review the remedies that are currently available under their legislation or services and determine whether there is a need to enhance them.
Recommendation 21

It is recommended 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

The Special Joint Committee on Child Custody and Access recommended that the federal government provide adequate resources for legal aid "to ensure that parties to contested parenting applications are not prejudiced by the lack or adequacy of legal representation."[116]  In the Putting Children's Interests First consultations, respondents highlighted the need for access to legal aid in family law cases.[117]

Legal aid for family law matters is available in all jurisdictions.  Generally speaking, financial eligibility guidelines for legal aid are below the Statistics Canada low-income cut-off.  Thus, the availability of legal aid is limited to the very poor.  The range of family law matters covered varies considerably from one jurisdiction to the next.  Most legal aid plans provide services in a range of family law matters (for example, divorce, custody, access, maintenance, property division, child protection and restraining orders).  In certain jurisdictions, priority is given to cases in which there are issues related to safety of the spouse or children.  In all jurisdictions, priority is given to child protection cases following the case of New Brunswick  v. G.(J.).[118]  In a few jurisdictions, family legal aid is available only in cases where domestic violence is present.

The Family Law Committee recognizes a strong body of opinion in Canada that there is a high level of unmet need for family legal aid.  There is a serious concern that lack of access to family legal aid can result in very negative consequences for children and their parents.

Family legal aid issues are not a major part of the current national legal aid research initiative.  However, at present, limited research is under way using existing data sources to determine the number of unrepresented litigants in family courts.  The Committee looks forward to the results of this inquiry.

There is only preliminary empirical evidence at this time relating to unrepresented litigants in family court.  Depending on the jurisdiction and the level of court, preliminary data show that between about forty and eighty percent of litigants in family law matters are not represented at the time of first filing.

However, more access to legal aid is not the only solution.  There are other options that should also be considered for meeting the needs of families who require assistance in dealing with parenting legal issues.  Providing access to justice for families may involve a multidisciplinary approach using both legal and non-legal strategies to address problems arising from family breakdown.  These include services such as law help lines, non-litigation strategies such as mediation and family case counselling, unbundled services in which legal aid lawyers provide limited advice dealing with only certain aspects of legal matters and assistance designed to enable clients to handle other matters themselves, and pro bono services provided by the private bar.  These efforts might also include public legal information materials combined with some hands-on assistance aimed at helping parties with completing and filing court documents at least in uncontentious proceedings.  These are areas in which the legal profession can partner with the major funders of legal aid services to develop innovative solutions for low and middle-income families.

Recommendation 22

It is recommended 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

In 1974 the Law Reform Commission of Canada prepared an extensive paper on family courts and recommended that courts be created with exclusive jurisdiction to deal with all matters related to family law.[119]  At that time, sometimes two or three courts exercised family law jurisdiction in a province or territory.  Since that time, many jurisdictions have created dedicated unified family courts or structured models that allow family law jurisdiction to be exercised by one court or one division of a superior court.  More recently, the Special Joint Committee on Child Custody and Access also recommended the expansion of unified family courts. [120]

A key element of a family court model is a specialized judiciary, knowledgeable about or genuinely interested in family law issues and sensitive and knowledgeable about the complex social and legal issues raised in these cases.  This specialized knowledge, it is argued, makes these courts more effective and efficient and, as a result, leads to better and less costly results for the clients.

Family court models need to be supported by a range of services and programs to be truly effective.  The Special Joint Committee on Child Custody and Access also recognized the need for unified family courts to provide comprehensive services in addition to their adjudicative function.  By combining the streamlined court structure and specialized judiciary with a selection of the services and dispute resolution models described above, these courts provide an effective mechanism for resolving family disputes.

Recommendation 23

It is recommended that the federal government work with jurisdictions to establish unified family courts, where there is a jurisdictional request.

Recommendation 24

It is recommended that persons appointed to, and serving in, specialized family courts have expertise in family law issues.

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