REPORT ON FEDERAL-PROVINCIAL-TERRITORIAL CONSULTATIONS
SUMMARY OF THE CONSULTATIONS
Consultations on child custody and access were held in the spring and early summer of 2001 in order to gather the opinions of Canadians on the following topics:
- best interests of children;
- roles and responsibilities of parents;
- family violence;
- high conflict relationships;
- children's perspectives;
- meeting access requirements; and
- child support.
The consultation process had two aspects: a paper-based process; and workshops. The paper-based process included briefs submitted by organizations and individuals; and feedback booklets, which were distributed with the consultation document. The workshops took place in every province and territory, and also included separate workshops for young people and Aboriginal people (although people from these two groups also attended other workshops).
Respondents submitted 2,324 completed feedback booklets, along with 71 briefs. Forty-six workshops were held, with approximately 750 participants in total.
A list of all the factors raised by respondents as affecting the best interests of children is provided here. These factors address the characteristics of the children, the historical parenting situation and forward-looking concerns.
Some respondents said that these factors should be specified in legislation, while others did not. Those in favour of listing factors felt that a list would help judges and parents make better decisions, ensure that concerns pertaining to children are systematically addressed, promote clarity and transparency in decisionmaking, and help harmonize federal legislation with that of the provinces and territories.
Those respondents not in favour of listing factors in the legislation said that a list would limit judicial discretion about the factors under consideration, reduce the legislation's flexibility and potential to evolve as it is used, and have the potential to increase conflict between parents and make rulings more complex. Respondents also said that a "checklist" approach to meeting children's needs was inappropriate.
A list of all the factors raised by respondents as enabling good parenting after separation and divorce is provided on here. These factors address the nature of the parents' relationship, the recognition and validation of parenting abilities, access to children and to timely financial support, services (including education, counselling and alternative dispute resolution) and information support systems.
With regard to the five options for legislative terminology presented in the consultation document, respondents said that the post-divorce parenting arrangement should be dictated by the situation of the family. Therefore, the majority favoured a flexible option that did not default to a particular arrangement. This option was option 4: replace the current legislative terminology and introduce the new term and concept of parental responsibility.
However, there was also some support for options 1 and 5. Those people who felt strongly that children need a primary caregiver and that violence is a large consideration tended to support options that allow for sole custody. Those who felt strongly that both men and women are equally capable of parenting tended to support options that presume a 50-50 split of parenting responsibilities. These people supported option 5, although in some cases they said that this option was not worded explicitly enough with regard to the equal sharing of parental responsibilities, including the residence of the children.
Respondents said that family law legislation should contain three points with regard to family violence:
- a statement that the best interests of the children are the first priority;
- a clear definition of violence (in particular, the scope of the definition); and
- an allocation of burden of proof.
Specific issues that respondents said should be addressed in any new legislation included mechanisms for investigating allegations of abuse, improvements to the family assessment process, and the role of the courts in incorporating family violence issues into custody and access decisionmaking.
With regard to the legislative options presented in the consultation document, respondents seemed to differ on what is in the best interests of children, and were polarized between making the children's safety and or the children's access to both parents the priority. Those who emphasized safety supported a rebuttable presumption of limited contact and decisionmaking input for the violent parent. Those who emphasized access to both parents supported a presumption of "maximum contact," except in situations when there is proof that the parent has been violent towards the children.
Most respondents agreed that a high degree of conflict between the parents is not in the best interests of the children, since it draws emotional and financial resources away from them. However, there was disagreement about how high conflict relationships should be managed.
Some respondents said that high conflict was, in fact, another form of family violence. They felt that separating high conflict from family violence implies that a certain level of abuse is acceptable. Other respondents said that high conflict was a natural by-product of the divorce process. They felt that a high conflict relationship between parents did not mean that the parents were any less able to care for their children.
Those respondents who supported addressing high conflict relationships through legislative changes generally supported a combination of options 2 and 3 or of options 2 and 4 (from those presented in the consultation document):
- A combination of options 2 and 3 would involve mandatory dispute resolution mechanisms leading to a very detailed agreement; supporters felt that this would reduce the likelihood of further litigation and conflict between the parents; and
- A combination of options 3 and 4 would discourage the use of mechanisms that require cooperation and joint decisionmaking (i.e. most alternative dispute resolution mechanisms), but would still result in a very detailed agreement; supporters of this option felt that forcing parents in high conflict situations into alternative dispute resolution programs was unsafe and unlikely to be productive.
Respondents identified several factors that should be taken into account when deciding whether and how to determine the children's perspective on custody and access arrangements. These included the children's age and culture, the support and information available, the children's relationship with each parent, emotional well-being and special needs, and the relationship between the parents.
Respondents also said that some criteria should govern the process of including the children's perspectives, including these:
- children are not forced to participate;
- children are protected from repercussions;
- any hearings are private and recorded;
- children are directly informed of resulting decisions; and
- professionals involved are informed, trained and have a code of conduct governing their behaviour.
Respondents said that there are two main issues to be addressed under this topic: denial of access and non-exercise of access. Respondents felt that both of these were equally detrimental to children's well-being, and proposed that tools such as parenting plans, parental education and counselling be considered as ways of encouraging parents to meet their access responsibilities.
Respondents recognized that it would be very difficult to legislate solutions to the non-exercise of access. They felt that forcing an uninterested parent to have contact with their children would not be in the children's best interests and might even be dangerous.
Respondents did, however, say that there were some points that could be touched on in the legislation to address the problem of denial of access. These were enforcement orders, alternatives to court-based solutions and the provision of supervised access centres.
There were several aspects of child support addressed during the consultation, including the following:
- child support in shared custody situations;
- impact of access costs on child support amounts; and
- child support for children at or over the age of majority.
Respondents had differing opinions on how shared custody should be determined. With regard to time as the determining factor (as is currently the case with the 40 percent rule), respondents pointed out that this links access and support, which may encourage access for the wrong reasons (i.e. to reduce support payments). However, respondents did recognize that time would be a relatively easy determinant to apply.
With regard to cost as the determining factor, respondents said that this could address many access situations (for example, cases in which access costs are very high, even though the time spent with the children is much lower than 40 percent). However, respondents also recognized that the question of which costs were legitimate would have to be addressed in the legislation.
In general, there was support for transparent guidelines or a formula-based approach, as it was felt that the existing child support guidelines have served to reduce conflict and litigation over child support amounts.
Respondents generally felt that both unusually high and unusually low access costs should be addressed in child support guidelines and legislation. However, they recognized that, as unusually low access costs are generally a result of non-exercise of access, it would be difficult to compensate custodial parents without forcing access, which is not in the best interests of children.
Some specific points were made with regard to the undue hardship rule. Some respondents said that it was too difficult to prove undue hardship and that the concept is not clearly defined. Others felt that undue hardship should not automatically decrease child support amounts as high access costs may not reduce the custodial parent's expenses.
Some respondents were in favour of paying some or all of the child support payments directly to children at or over the age of majority. They felt that this would reassure paying parents that the money is being spent on the children. Other respondents were not in favour of direct payment, pointing out that custodial parents still have expenses related to maintaining a home for the children, regardless of the children's ages.
There was also some support among respondents for increased transparency with regard to the spending of child support payments by custodial parents after the children have reached the age of majority.
Aboriginal respondents pointed out that, as their traditional view of children and children's best interests is fundamentally different from that of other Canadians, many of the issues raised in the consultation document were of minimal relevance to them. They raised the following points with regard to their perspectives on custody and access issues:
- Legislation must take into account Aboriginal culture and traditions (for example, the role of grandparents as caregivers, the role of elders and others in providing services, and the role of the wider community in supporting families and children);
- Services must be linguistically and culturally appropriate and must be available in remote areas; and
- Alternative solutions must be considered that take into account the reality of life in remote, often cash-poor communities (for example, the provision of food as child support rather than money).
Services were addressed under several topics during the consultation. Several services stand out as being necessary in all family situations, including parenting courses, child peer reference opportunities, and help in developing agreements (such as mediation, family counselling, and other forms of alternative dispute resolution). Other supplementary services are needed for families experiencing a high degree of conflict or physical violence. These include behavioural counselling and courses (for example, those on anger and addiction management), violence-related counselling, court-based mechanisms for developing agreements, appropriate enforcement mechanisms, and supervised access and exchange facilities.
In general, respondents felt that services (existing and new) should:
- be well publicized;
- be timely;
- focus on early intervention;
- provide follow up after a given period of time;
- be accessible (to men and women, to various cultural and language groups, to both urban and rural Canadians, and to various social groups); and
- be free or low-fee (including subsidies for transportation and childcare).
Respondents highlighted several alternative delivery methods that they said would improve awareness of and access to services.
This consultation addressed many factors to be considered in the modification or revision of provincial and territorial legislation dealing with child custody and access, and the Divorce Act. While there were many varying opinions expressed on how to ensure that the legislation addresses the best interests of children, most respondents agreed that the current situation is lacking and that improvement is necessary. Respondents also made many comments on services, which included ideas on how to promote and enhance existing services, as well as suggestions for additional services that would be helpful to children, parents and others throughout the process of separation and divorce.
The results of the consultation, as captured in this report, will inform the Federal-Provincial-Territorial Family Law Committee's discussions on the child custody and access project as well as the discussions of federal, provincial and territorial Ministers responsible for Justice. They will form part of the background to the report to Parliament that the federal Minister of Justice will table before May 2002.
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