Voice and Support: Programs for Children Experiencing Parental Separation and Divorce

2004-FCY-2E

APPENDIX B
CANADIAN CHILDREN'S INCLUSION IN CUSTODY AND ACCESS PROCEEDINGS

Table B.1 British Columbia

Proceedings and Services

Children's Inclusion

Information
Counsellors

Children not directly involved.

Voluntary Conciliation Mediation

  • Children are rarely directly involved in the conciliation provided by family justice centres around the province (Morgan, pers. comm.).
  • Occasionally older children (12+) are interviewed separately by conciliators. Guidelines require conciliators discuss the interview with the parents beforehand, and clarify the purpose of meeting with the child at the outset of the interview.
  • The ministry has begun to explore ways to increase children's involvement in court-provided conciliation or mediation.
  • Children may be more frequently involved in private custody and access mediation, but it is not common.

Custody and access reports

Comprehensive Reports

  • Involve interviews with parents, collateral interviews with officials familiar with child and family, interviews with children and each parent separately at home, in the playground, etc., interviews with child and siblings, and interviews with each child alone (observation of preschoolers). Adolescents are asked for feedback, but younger children's wishes are not directly solicited (Morgan, pers. comm.).
  • Children not interviewed in cases where mental health expert judges they risk being harmed from excessive interviewing. In those cases assessors use existing expert reports.
  • Assessment directly addresses each of the criteria provided by the legislation to determine the child's best interests. Brief account of marital history and plans for future.
  • A 6-8 month waiting list for court-provided (free) comprehensive reports. Given the backlog in preparing reports, reports now most frequently ordered for children with high conflict parents, enmeshed in litigation, where one or more parents may be self-litigating, the child's health or safety is feared at risk, or there has been prolonged access denial.

Views of the Children Reports

Short reports that assess and present teenagers' wishes in specific access disputes.

Focused Assessments

Assessments focused on specific access issues such as overnight visits, and bracket or exclude other ongoing conflicts.

Children interviewed, as well as other relevant parties.


Table B.2 Alberta

Proceedings and Services

Children's Inclusion

Information Counsellors

Provide information to parents initiating legal custody and access proceedings. Children not involved.

Voluntary Mediation

Children not normally involved in court-connected voluntary mediation available to families with custody and access disputes. Older children (15-16) may sometimes be present with parents, or seen separately by mediator (Delanghe, pers. comm.).

Court Assessments / Home Studies

  • Social workers in provincial court, and social workers and/or psychologists in Queen's Bench, provide standard assessments involving home visits with each parent and child to observe family, and further interviews with the children if needed (or observation of young children at activities), and with parents.
  • Some mini-assessments for older children, where specific issues are in dispute. May be court-ordered or initiated by parents or their lawyers. Typically are not used by families felt to be on their way to final hearing, since assessors prefer not to present these "snapshots" in court, or appear as expert witnesses to present them.
  • Parents liable for costs of assessments, although they may be eligible for some subsidy if they have participated in court-connected mediation.

Amicus Curaie

No longer provided to children and youth. Court can appoint counsel for the child; this occurs in exceptional circumstances.


Table B.3 Saskatchewan

Proceedings and Services

Children's Inclusion

Voluntary Mediation

Children are rarely involved in court-connected mediation. Similar situation applies in private mediation (Acton, pers. comm.). Where children are involved, they are most likely to be older.

Court Assessments

  • Provide standard assessments typically involving home visit with each parent and child, to observe family, and further interviews with children if needed (or observation of very young children at activities), and with parents.
  • Recent sharp increase in use of focussed/mini-assessments for children 12 and older, which focus on resolution of specific issues, and in which only children are interviewed (may be collateral interviews as well) (Behr, pers. comm.). Especially likely to occur in application to vary custody and access orders, and with older children. (Saskatchewan judges follow assessments' recommendations in about 90percent of cases.)

Table B.4 Manitoba

Proceedings and Services

Children's Inclusion

Voluntary Mediation

Children present at mediation (where parents request it and mediator judges it suitable), or mediators meet separately with the child to assess the child's best interests, in less than fivepercent of cases (estimate) (Bewski, pers. comm.).

Court Assessments

  • Provide standard comprehensive assessments, typically including home visits with each parent and the child by the assessor, to observe family, and meetings with parents. Children's preferences not solicited, but reported if offered by the child. The assessor is not bound by these preferences in assessing the child's best interests.
  • The court is increasing its use of focussed assessments, in which children may play a more direct role in the assessment.

Amicus Curaie

  • Service eliminated March 2001.
  • More than 40 older children a year used the support of amicus curaie attorneys in recent years, partly because of long waiting lists for assessments. Court officials are planning to make more mediators and evaluators available to replace this service (Bewski, pers. comm.).

Table B.5 Ontario

Proceedings and Services

Children's Inclusion

Information Services

Children not believed to be included (Dwyer-Hunte, pers. comm.).

Voluntary Mediation

Children included in voluntary mediation programs only sometimes. Typically older children (Dwyer-Hunte, pers. comm.).

Custody Assessments/Social Work Reports

Social worker-lawyer teams

Office of the Children's Lawyer

  • About one third of the Office of the Children's Lawyer's 3000-3500 cases—typically high conflict, chronic litigation cases—receive family assessments (social work reports). Children are always interviewed, and their preferences will be included in the report if it is considered in the child's best interests (Moyal, Martin and McTavish, pers. comm.).
  • Assessments may include may include interviews at child's home. Children may be observed with family members and may be interviewed privately, if appropriate (http://www.attorneygeneral.jus.gov.on.ca). Children's interviews outside the home done in "comfortable environment," and may include play, drawing or stories to elicit children's feelings. Children not asked to choose between parents. Reports are prepared by social workers whose mandate is to serve as an advocate for the children's best interests.
  • While preparing the report, social workers also attempt to mediate parents' dispute. Reports are presented to court with recommendations where no agreement reached.
  • Another third of the Office's families receive combined assessment and legal guidance and representation through the Office's social worker-lawyer team program. The social worker-lawyer teams integrate information about the family dynamics and parenting capacity, etc., explored in the assessment, into legal guidance and suasion provided by the children's representative on the team. Conversely the legal options and guidance are used to inform the social workers efforts to facilitate agreement in the child's best interest before the case proceeds to court.

10-15percent of Office's assessments are focussed assessments.


Table B.6 Quebec

Proceedings and Services

Children's Inclusion

Voluntary Mediation

  • Children not usually included in mediation usually. Children, usually older, sometimes involved (Canozzi, Tanguay, pers. comm.). Where children are involved, mediators involve them in different ways, depending on family and mediator's approach (Canozzi, pers. comm.).
  • Quebec currently considering regulatory changes to its free mediation services that will include meetings between mediators and the children alone. At present the free service officially only covers meetings between mediators and parents, or parents and children (Tanguay, pers. comm.).

Psycho-social Evaluations (family assessments)

Comprehensive assessments involving interviews with parents. Also interviews with children, either alone or with their parents (Canozzi, pers. comm.).


Table B.7 Nova Scotia

Proceedings and Services

Children's Inclusion

Mediation or Conciliation

Children not usually included in court-based mediation, although older children may sometimes be, where parents want to involve their children and mediators consider this beneficial (Hebert, pers. comm.).

Custody Assessments

Custody assessments, prepared by social workers or psychologists may include interviews with children alone, depending on age and circumstances. Scope of the assessment varies according to assessor's judgement (Nichols, pers. comm.).

Family Group Conferencing

None at present, but under consideration.


Table B.8 New Brunswick

Proceedings and Services

Children's Inclusion

Mediation or Conciliation

Children may be included in mediation provided through the government's domestic legal aid services, depending on individual mediators. However, most avoid including children, especially younger children (Guravich, pers. comm.).

Custody Assessments

Custody assessments contracted out to private assessors and the provincial department of family and community services. Assessors always interview children in some capacity, often meeting privately with children, but assessment practices vary significantly (Guravich, pers. comm.).


Table B.9 Prince Edward Island

Proceedings and Services

Children's Inclusion

Voluntary Mediation

Children rarely included in mediation (Bulger, pers. comm.).

Home Studies (court assessments)

Standard comprehensive assessments, involving meetings with parents, meetings with parents and children, and meetings with children at school (Bulger, pers. comm.). In transition to doing more mini-assessments (1-2 completed) (Bulger, pers. comm.). Expect children will be as involved in these as in standard comprehensive assessments.


Table B.10 Newfoundland and Labrador

Proceedings and Services

Children's Inclusion

Voluntary Mediation

Children not involved in mediation. Mediator may meet with children at the end of the mediation to help explain the outcomes to them (Foster, pers. comm.).

Corner Brook integrated court services pilot program.

Short term counselling for children, or children and parents, in families involved in custody and access disputes, including access enforcement disputes (Reynolds, pers. comm.).

Court Assessments

  • Standard comprehensive court assessments provided, that include interviews with parents, parents and children, and collateral interviews with school and other officials.
  • Mini-assessments are also conducted in some cases. These may involve children meeting alone with the assessor for their perspective on the specific issues on which the assessments focus, or meetings with parents and children together (Foster, pers. comm.).

Table B.11 Yukon

Proceedings and Services

Children's Inclusion

Mediation or Conciliation

No court-based mediation or conciliation services available at present (McLeod, pers. comm.).

Custody Assessments

Few, if any, assessments completed, since very few cases reach court hearing.


Table B.12 Northwest Territories

Proceedings and Services

Children's Inclusion

Mediation or Conciliation

Little mediation or conciliation available (Laycock, pers. comm.).

Custody Assessments

Few, if any, assessments completed, since very few cases reach court hearing.


Table B.13 Nunavut

Proceedings and Services

Children's Inclusion

Mediation or Conciliation

None yet available. Program planned but in program model not yet decided (Berzins, pers. comm).

Custody Assessments

Few, if any, assessments completed, since very few cases reach court hearing.

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