The Child-centred Family Justice Strategy: Baseline Information from Family Law Practitioners

2.0  Survey on the Practice of Family Law in Canada

2.1  Demographics of Survey Respondents

A total of 117 surveys were completed and returned to CRILF. Of these, 92 percent (n=108) were completed by lawyers (80 percent private practice, 10 percent government/agency, and 2 percent legal aid clinic), 6 percent (n=7) were completed by judges, and 2 percent (n=2) were completed by others (i.e., law professor, mediator). The lawyers were asked how long they have been practicing family law, and the responses ranged from 1 to 36 years, with an average of 17 years. The vast majority of the lawyer respondents indicated, as well, that it is family law that they predominantly practice. When asked what proportion of their practice involves family law cases, the average response was 81 percent, with a range of 10 percent to 100 percent.

The largest proportion of respondents was from Ontario (32 percent), Alberta (18 percent), and Nova Scotia (12 percent) (see Figure 2.1). Over half of the respondents (excluding judges) (54 percent) have a client base that is mostly large urban (>100,000 population), almost one third (29 percent) have a client base that is mostly small urban (10,000 – 100,000 population), and five percent have a client base that is mostly rural (<10,000 population). Just over one fifth (12 percent) of the respondents reported a fairly equal mix of urban and rural clients.

One third (33 percent) of the lawyers said they are registered with a lawyer referral service. These lawyers reported that the proportion of their cases that come from the service range from 0 to 15 percent, with an average response of five percent. Lawyers were also asked if they conduct mediation sessions, and almost one third (30 percent) said they did.

All respondents were asked about any training that they have taken on family law issues in the past five years. The group was very supportive of continuing education, and most had participated in several programs. As indicated in Table 2.1, the most common subjects of the programs attended were: child support guidelines (80 percent); spousal support (72 percent); custody/access (71 percent); and property division (68 percent).

Table 2.1
Respondents' Continuing Education or Training on Family Law Issues in the Past Five Years

Family Law Issue n %
Dispute resolution (e.g., mediation) 58 49.6
Family violence 38 32.5
Custody/access 83 70.9
Spousal support 84 71.8
Collaborative family law 67 57.3
Child support guidelines 93 79.5
Property division 79 67.5
Other* 25 21.4

Figure 2.1  Percentage of Respondents from Each Province or Territory

Figure 2.1 Percentage of Respondents from Each Province or Territory

[ Description ]

2.2  Case Characteristics

One of the purposes of this project was to obtain current baseline information on the characteristics of cases handled by family law lawyers in Canada. Survey respondents (excluding judges) handled an average of 93 family law cases in the past year, ranging from 10 to 400 (see Table 2.2). When asked what proportion of these cases involved children, responses ranged from 9 percent to 100 percent, with an average of 74 percent. Over one quarter (28 percent) of respondents' family law cases with children involved were variations of previous orders/agreements.

Table 2.2
Characteristics of Respondents' Family Law Cases in the Past Year

Characteristic Mean Median Range n
Number of family law cases in past year 92.6 75.0 10 – 400 97
Proportion of family law cases involving children 74.1 80.0 9 – 100 108
Proportion of family law cases funded by legal aid 25.3 10.0 0 – 100 92
Proportion of family law cases with children involved that are variations of previous orders/agreements 28.1 25.0 0 – 100 106

Respondents were asked in what proportion, of the family law cases that they have handled in the past year, was either party funded by legal aid. While the average was 25 percent, there was a wide range of responses. Over one third (37 percent) of the 92 respondents said that none of their family law cases involved legal aid funding; 16 percent said that at least one party was funded by legal aid in 10 percent of their family law cases, and 11 percent of respondents reported that they dealt exclusively with legal aid clients.

Over three quarters of respondents (78 percent) classified the majority of their clients as comprising approximately equal proportions of custodial and non-custodial parents. Much smaller proportions reported that their clients were primarily custodial (or primary care) parents (17 percent) or primarily non-custodial parents (6 percent) (n=107).

Respondents were asked in what proportion, of their cases in the past year, was the final resolution accomplished in different ways. As indicated in Table 2.3, the most common response was settled by negotiation before trial; respondents reported an average of 48 percent of their cases were resolved in this manner. One quarter of respondents' cases (an average of 24 percent) were resolved by settlement conference. Smaller proportions were decided by a judge after a hearing or trial (14 percent), settled by parents (13 percent), settled by mediation (11 percent), or resolved by collaborative family law (9 percent). Respondents were also asked in what percent of their family law cases is there an interim order that is, in effect, the final judicial disposition (because the case is thereafter resolved without a trial). Responses varied widely (from 0 percent to 100 percent), with an average response of 56 percent (n=104).

Table 2.3
Proportion of Respondents' Cases in the Past Year Resolved by Various Methods

Resolution Method Mean Median Range n
Settled by parents 13.4 10.0 0 – 75 83
Settled by mediation 10.9 10.0 0 – 60 69
Settled by negotiation before trial 48.4 45.0 1 – 95 99
Settled by settlement conference 24.3 20.0 0 – 95 81
Resolved by collaborative family law 8.5 5.0 0 – 80 54
Decided by a judge after a hearing or trial 14.1 10.0 0 – 100 96

Table 2.4 presents the respondents' views—based on their experience—on which issues are most likely to require a trial and judicial decision in order to be resolved (in both divorce and variation cases). Respondents were given a variety of issues, and were asked to select all that apply. In divorce cases, three quarters of respondents (74 percent) said spousal support, over one half (54 percent) said custody, and almost one half (44 percent) said property division. Child support was mentioned by only 12 percent of respondents as being an issue most likely to require a trial and judicial decision to be resolved in a divorce case. In variation cases, the issue most likely to require a judicial decision was parental relocation (mobility) (64 percent), followed closely by spousal support (60 percent). The issues least likely to require a judicial decision in variation cases in respondents' experience were child support and undue hardship (each mentioned by 19 percent of respondents).

Table 2.4
Respondents' Reports as to Which Issues in Divorce and Variation Cases are Most Likely to Require a Trial and Judicial Decision to be Resolved

Issue In a Divorce Case In a Variation Case
n % n %
Child Support 14 12.0 22 18.8
Custody 63 53.8 33 28.2
Access 40 34.2 36 30.8
Spousal support 87 74.4 70 59.8
Property division 52 44.4 -- --
Child support arrears 28 23.9 41 35.0
Spousal support arrears 22 18.8 33 28.2
Undue hardship -- -- 22 18.8
Parental relocation (mobility) -- -- 75 64.1

2.3  Services

The survey asked respondents how they keep informed about family justice services (i.e., services available to clients to assist them in family law matters, such as counselling, education, mediation, etc.). The most common source of information, reported by 79 percent of respondents, was colleagues. Other helpful sources of information were: provincial/territorial continuing legal education courses (62 percent); local professional seminars (61 percent); professional associations and meetings (55 percent); national or international conferences (51 percent); and, professional publications (reporting services, journals, etc) (50 percent). Sources of information that were mentioned by fewer respondents included newsletters (33 percent) and the Internet (21 percent). When asked which of these sources is most helpful to them in keeping informed about family justice services, 31 percent of the 91 respondents said colleagues, 23 percent said local professional seminars, 20 percent said provincial/territorial continuing legal education courses, and 20 percent said professional associations and meetings.

Respondents (excluding judges) were asked, in general, how well informed their clients are about a number of family justice services/issues at the outset of their case. The results are presented in Table 2.5. Overall, lawyers reported that their clients are either somewhat informed or not at all informed about family justice services/issues at the outset of their case. Clients are most likely to be informed about child support issues; 85 percent of respondents reported that their clients are either very well informed or somewhat informed about this issue. Clients are also very well or somewhat informed about marriage or relationship counselling (80 percent) and individual counselling (79 percent). Over one half of the respondents also reported that their clients were very well or somewhat informed about the following services/issues: maintenance enforcement programs (66 percent); Legal Aid services/duty counsel (64 percent); domestic violence services (58 percent); spousal support issues (56 percent); and mediation services (50 percent).

According to the survey respondents, clients are least likely to be informed about collaborative family law; 70 percent of respondents reported that their clients are not at all informed about this approach to resolution of family law cases. Other services/issues about which respondents report clients are not at all informed include: child assessment services (66 percent); parenting plans (63 percent); supervised exchange (62 percent); Family Law Information Centres (58 percent); parenting education programs (56 percent); and supervised access (50 percent). Services/issues that respondents think their clients are misinformed about include: spousal support issues (16 percent); supervised access (14 percent); the psychological effects of divorce on children (13 percent); supervised exchange (11 percent); and parenting plans (10 percent).

Survey respondents (excluding judges) were then asked where their clients get their information about family justice services/issues. Almost all respondents (94 percent; n=103) said their clients get their information from friends and family members. Over half (58 percent; n=64) said the Internet was a resource, and half (50 percent; n=55) said their clients get information from media stories or advertising (e.g., television, radio, newspaper). Resources that were less commonly used were: court services (34 percent; n=37); another lawyer (32 percent; n=35); parenting education programs (20 percent; n=22); public legal education and information associations (19 percent; n=21); and books (16 percent; n=17).

Table 2.5
Respondents' Perceptions of How Well Informed Their Clients are at the Outset of Their Case

Service/Issue Very Well Informed Somewhat Informed Not at All Informed They are Misinformed N/A Missing
n % n % n % n % n % n %
Marriage or relationship counselling 12 10.9 76 69.1 14 12.7 4 3.6 0 0.0 4 3.6
Individual counselling 13 11.8 74 67.3 15 13.6 3 2.7 0 0.0 5 4.5
Mediation services 7 6.4 48 43.6 42 38.2 8 7.3 1 0.9 4 3.6
Child assessment services 3 2.7 19 17.3 72 65.5 9 8.2 2 1.8 5 4.5
Collaborative family law 1 0.9 20 18.2 77 70.0 5 4.5 1 0.9 6 5.5
Parenting education programs 4 3.6 33 30.0 62 56.4 4 3.6 3 2.7 4 3.6
Parenting plans (written document jointly developed by parents) 3 2.7 20 18.2 69 62.7 11 10.0 2 1.8 5 4.5
Psychological effects of divorce on children 3 2.7 40 36.4 48 43.6 14 12.7 0 0.0 5 4.5
Domestic violence services 5 4.5 59 53.6 31 28.2 6 5.5 4 3.6 5 4.5
Supervised access 3 2.7 31 28.2 55 50.0 15 13.6 1 0.9 5 4.5
Supervised exchange 3 2.7 20 18.2 68 61.8 12 10.9 1 0.9 6 5.5
Child support issues 12 10.9 81 73.6 8 7.3 5 4.5 0 0.0 4 3.6
Family Law Information Centres 1 0.9 22 20.0 64 58.2 2 1.8 16 14.5 5 4.5
Maintenance enforcement programs 10 9.1 62 56.4 25 22.7 8 7.3 1 0.9 4 3.6
Financial assistance services 5 4.5 45 40.9 40 36.4 4 3.6 9 8.2 7 6.4
Legal Aid services/
duty counsel
9 8.2 61 55.5 23 20.9 4 3.6 7 6.4 6 5.5
Spousal support issues 6 5.5 55 50.0 28 25.5 17 15.5 0 0.0 4 3.6
Variation or recalculation services 3 2.7 34 30.9 54 49.1 4 3.6 10 9.1 5 4.5

Recognizing that the lawyers themselves are valuable sources of information for their clients, survey respondents were asked how often they inform clients about, or refer clients to, various family justice services. Table 2.6 indicates that over half of the respondents will often or almost always inform their clients about, or refer their clients to, the following services: maintenance enforcement programs (78 percent); individual counselling (65 percent); parenting education programs (59 percent); mediation services (56 percent); parenting plans (56 percent); and marriage or relationship counselling (51 percent). The services that respondents report they are most likely to rarely inform their clients about are: supervised exchange (41 percent); variation or recalculation services (40 percent); collaborative family law (37 percent); and financial assistance services (37 percent).

Table 2.6
Respondents' Reports of How Often They Inform Clients
About or Refer Clients to Various Family Justice Services

Family Justice Service Rarely Occasionally Often Almost Always Missing
n % n % n % n % n %
Marriage or relationship counselling 11 10.0 39 35.5 23 20.9 33 30.0 4 3.6
Individual counselling 6 5.5 29 26.4 46 41.8 26 23.6 3 2.7
Mediation services 10 9.1 34 30.9 32 29.1 30 27.3 4 3.6
Child assessment services 17 15.5 50 45.5 29 26.4 9 8.2 5 4.5
Collaborative family law 41 37.3 18 16.4 13 11.8 32 29.1 6 5.5
Parenting plans 14 12.7 26 23.6 31 28.2 30 27.3 9 8.2
Parenting education programs 12 10.9 28 25.5 23 20.9 42 38.2 5 4.5
Domestic violence services 25 22.7 53 48.2 21 19.1 7 6.4 4 3.6
Supervised access 33 30.0 54 49.1 10 9.1 9 8.2 4 3.6
Supervised exchange 45 40.9 44 40.0 8 7.3 8 7.3 5 4.5
Maintenance enforcement programs 6 5.5 15 13.6 36 32.7 50 45.5 3 2.7
Financial assistance services 41 37.3 35 31.8 16 14.5 11 10.0 7 6.4
Legal Aid services/duty counsel 29 26.4 36 32.7 19 17.3 21 19.1 5 4.5
Variation or recalculation services 44 40.0 30 27.3 14 12.7 11 10.0 11 10.0

Over two thirds of the survey respondents (67 percent; n=70) reported that their clients are somewhat willing to use family justice services. Almost one quarter (23 percent; n=24) said their clients are very willing, and one tenth (11 percent; n=11) said their clients are not willing at all to use family justice services. For clients who are not willing to access family justice services, respondents were asked what they thought was the biggest obstacle. The most common response was time delay (39 percent; n=43), followed by lack of trust in the service (37 percent; n=41), cost (29 percent; n=32), and location of service (16 percent; n=18). Nineteen respondents reported other reasons, the most common being lack of availability of the service in the community (n=6).

Respondents were asked to what extent they think their cases are more likely to be settled out of court because of the family justice services that are available. One half said somewhat more likely (51 percent; n=52), and 18 percent (n=19) said much more likely. Less than one third of the respondents (31 percent; n=32) did not think cases are more likely to be settled out of court because of family justice services.

The survey asked respondents if there are services not available in their community that they think would be helpful to them or their clients, and 61 respondents made 106 suggestions. The services that were suggested the most were: supervised access/affordable supervised access (21 percent of the respondents); mediation/affordable mediation (21 percent); parent information/education services or programs (20 percent); assessments/assessors/assessment centres (20 percent); affordable counselling services (8 percent) and collaborative family law (8 percent).

Respondents were also asked if family justice services were available to their clients in their official language of choice. Almost three quarters (73 percent; n=65) said yes, and over one quarter (27 percent; n=24) said no.

All survey respondents were asked if there is a Unified Family Court in their province/territory. Over half of the respondents (57 percent; n=66) said yes and 43 percent (n=49) said no. Respondents were then asked to what extent they agreed that Unified Family Courts accomplish specific objectives. Table 2.7 shows that, in general, about half of the respondents agreed or strongly agreed that Unified Family Courts have positive consequences, while about one quarter disagreed or strongly disagreed. In terms of simplifying procedures, 57 percent of respondents agreed or strongly agreed that Unified Family Courts accomplish this objective, while 23 percent disagreed or strongly disagreed. Likewise, over half of the respondents agreed or strongly agreed that Unified Family Courts provide easy access to various family justice services (55 percent) and produce outcomes tailored to individual needs (53 percent). Just under half of the respondents agreed or strongly agreed that Unified Family Courts provide timely resolution to family law matters (45 percent), while over one third (35 percent) disagreed or strongly disagreed that Unified Family Courts meet this objective. The high number of missing responses most likely reflects individuals for whom this question did not apply.

Table 2.7
Extent to Which Respondents Agree that Unified Family Courts Accomplish Specific Objectives

Objective Strongly Agree Agree Disagree Strongly Disagree Missing
n % n % n % n % n %
Simplify procedures 27 23.1 40 34.2 20 17.1 7 6.0 23 19.7
Provide easy access to various family justice services 24 20.5 40 34.2 19 16.2 8 6.8 26 22.2
Provide timely resolution to family law matters 20 17.1 33 28.2 28 23.9 13 11.1 23 19.7
Produce outcomes tailored to individual needs 18 15.4 44 37.6 24 20.5 8 6.8 23 19.7

Respondents who do not have Unified Family Courts in their province/territory were asked if they would like to see them implemented. Of the 56 respondents who answered this question, 59 percent said yes, and 41 percent said no. Respondents were asked to explain their answers, and 45 reasons were given. For individuals who would like to see Unified Family Courts implemented, the most common explanation was that there was a Unified Family Court in their province/territory, but it was not province-wide (n=7). Other explanations in support of Unified Family Courts were that two courts were seen as redundant and one-stop shopping made more sense (n=5); Unified Family Courts would rationalize procedures and services (n=2); and, judges with an interest or extensive background in family law were needed (n=2). For individuals who did not want to see Unified Family Courts implemented in their jurisdiction, the most common reasons given were: Unified Family Courts were of no benefit without the services to back them up (n=3); the current system works well (n=2); two-tiered courts (for represented and unrepresented parties) are needed (n=2); waiting times have increased since Unified Family Courts were implemented (n=2); and Unified Family Courts are not working properly because non-family court judges who lack family law experience are rotated in (n=2). As one respondent said:

The UFC system in our area…does not function properly because non-family court judges, who lack the desire and expertise are routinely rotated into UFC and hear motions. The result is that non-UFC judges are deciding cases on motions which directly impact on the litigants and the law often to the detriment of both. The non-UFC judges lack the family law knowledge and background in social science issues. They intentionally defer cases rather than deal with them even where child protection issues are prevalent. The current UFC process does not always provide timely resolution to urgent cases because of the Family Law Rules in Ontario and court backlogs.

2.4  Best Interest Criteria

Currently, subsection 16(8) of the Divorce Act provides that in making a custody order, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs, and other circumstances of the child. All survey respondents were asked whether, in their experience, most parenting arrangements that are made through specific processes are consistent with the best interests of the child. The results are presented in Table 2.8. According to the respondents, the processes most likely to be consistent with the best interests of the child are arrangements made as a result of mediation (84 percent), and arrangements negotiated by lawyers (on their own or after judicial conference) (80 percent). The process respondents thought was least likely to be consistent with the best interests of the child was an arrangement made by a judge after a trial or hearing (51 percent).

Table 2.8
Respondents' Perceptions of Whether Parenting Arrangements Made Through Specific Processes are Consistent with the Best Interests of the Child

Process Yes No Missing
n % n % n %
Arrangements made by parents themselves 86 73.5 19 16.2 12 10.3
Arrangements made as a result of mediation 98 83.8 7 6.0 12 10.3
Arrangements negotiated by lawyers (on their own or after judicial conference) 93 79.5 14 12.0 10 8.5
Arrangements that are a result of collaborative family law 77 65.8 3 2.6 37 31.6
Arrangements made by a judge after a trial or hearing 60 51.3 45 38.5 12 10.3

Respondents were asked if the provincial/territorial legislation in their jurisdiction included specific criteria for determining the best interests of the child. Of the 113 individuals who responded to this question, 63 percent said yes and 37 percent said no. Respondents who answered yes were also asked if they use those criteria in cases under the Divorce Act, and the vast majority (94 percent) of the 70 respondents said they did.

All survey respondents were asked, in their experience, in situations where parents are aware of the negative effects of separation/divorce on their children, does this awareness affect their behaviour. While the majority of the 109 respondents said it did (56 percent), a surprising 44 percent of the respondents said no. When asked, ‘why not’, respondents offered 53 reasons. The most common responses were: parents are unable to isolate their children's interests from their own (n=15); the emotional and/or financial repercussions of the separation interfere, and parents can't get past their anger (n=13); even when parents are aware, they have difficulties changing their behaviour (n=9); parents often use their new awareness against the other parent (n=8); and the ability to change depends on their education level, relationship between the parties, and their willingness to change (n=5). As one respondent put it, "They are humansome of them can't get by the hurt, anger, pain to deal with their children's hurt, anger, pain, sense of loss and fear."

Respondents were asked if, in their opinion, parenting plans (i.e., a detailed written plan jointly developed by parents to address their child's care and needs) are a good mechanism for ensuring that the best interests of the child are met. Over one half (56 percent; n=59) of the respondents said yes, in all cases, and over one quarter (29 percent; n=30) said yes, in high conflict cases. Sixteen respondents (15 percent) did not think parenting plans are a good mechanism for ensuring that the best interests of the child are met. One respondent said:

Parenting plans are most helpful in high conflict cases as a method to try to end the conflict. They do not necessarily…ensure that the best interests of the child are met. The best interests of a child are met when his or her parents co-operate. Parenting plans help to spell out details that "good" separating parents do not need to document. I would be very wary of opening up the use of parenting plans in every case which could lead to increased litigation by litigants and lawyers as a strategy rather than as an issue of real concern.

All survey respondents were asked in what proportion of their cases, in which children are involved, are parenting plans used; the responses varied widely (n=103). The mean response was 31 percent, and the median was 20 percent. When asked if they have a form that they use as a guide for parenting plans, one third (33 percent) of the 106 individuals who responded said they did. Respondents who reported that they didn't have a form were asked if they thought a guide would be useful, and 84 percent of the 74 respondents said it would.

The use of parenting plans was further explored when the survey asked respondents (excluding judges) how helpful parenting plans were to their clients. In general, respondents found parenting plans helpful: 47 percent (n=47) said they were somewhat helpful; 45 percent (n=45) said they were very helpful; and 9 percent (n=9) said parenting plans were not very helpful. When asked to explain their answers, 52 respondents made 65 comments. Respondents who thought parenting plans were helpful commented on the following: parenting plans can diminish day-to-day conflict between parents (15 percent of respondents); parenting plans help parents to focus on the child (15 percent); parenting plans help to identify aspects of parenting and provide guidelines for parents (14 percent); parenting plans provide predictability when dividing parental tasks (12 percent); and parenting plans give parents ownership of their plan and allow them to tailor the plan to their individual needs (10 percent). One respondent said:

Parents often are not aware of how flexible and age appropriate parenting plans are. In addition it is a low cost, circumstance-oriented approach that actually works for the parents by decreasing cost and encouraging child-focussed compromise, and for the children because they tend to see the parents co-operating ("getting along") in matters related to their well being and the sense of loss is thereby decreased.

Respondents who thought parenting plans were not very helpful made the following comments: parenting plans remove flexibility and have too many rules (eight percent of respondents); parenting plans are still very new and are unfamiliar to clients (six percent); parties may not be on a level playing ground for negotiating parenting plans (four percent); parents who get along well can manage well without a detailed plan (four percent); and parenting plans depend on the good will of the parents and won't work if the parents don't want to make it work (four percent).

2.5  Child Representation

The United Nations Convention on the Rights of the Child provides for the right of the child to participate in decisions that affect his or her life. Respondents were asked what they think are the best mechanisms to enable children to voice their views. The two mechanisms that were chosen by most respondents were assessment report (74 percent; n=87), followed by legal representation for the child (65 percent; n=76). About one third of respondents (34 percent; n=40) chose non-legal representation for the child, and about one fifth (21 percent; n=24) chose judicial interview. Very few respondents chose the alternatives of testimony of the child (three percent; n=4) or legislative provision that parents should consult their children respectfully when making parenting arrangements upon separation (three percent; n=3). One respondent noted:

It is very difficult to obtain views, as children may feel many different emotions, including protecting each parent. To seek a child's opinion may be very divisive and also provides a child with too much power and room to manipulate. The wishes of children are but one factor which must be sensitively obtained in an unobtrusive fashion and reviewed in keeping with the evidence.

When respondents were asked which factors are most important when deciding what weight should be given to the child's views, they were very supportive of all the factors listed. Specifically, respondents thought the following factors were important: age of child (89 percent; n=104); indication of parental coaching/manipulation (85 percent; n=99); ability of child to understand the situation (77 percent; n=90); child's reason for views (74 percent; n=87); ability of child to communicate (74 percent; n=86); and the child's emotional state (65 percent; n=76).

Respondents were asked how much weight should be given to the preferences of a child regarding custody decisions at specified ages. Predictably, the older the child, the more weight respondents thought should be given to their preferences (see Figure 2.2).

Figure 2.2  Respondents' Views on How Much Weight Should be Given to the Preference of Children at Specified Age Ranges

Figure 2.1 Percentage of Respondents from Each Province or Territory

[ Description ]

While 56 percent thought no weight should be given to children under the age of 6 years, 71 percent thought the preferences of 6- to 9-year-old children should be weighed lightly, and 92 percent thought the preferences of children 14 years or over should be weighed heavily. For the age group of 10 to 13 years, 46 percent of the respondents thought their preferences should be weighed lightly, and 50 percent thought they should be weighed heavily. One respondent cautioned that "this depends less on age and more on maturity/sophistication and indication of parental manipulation."

2.6  Custody and Access

The issue of terminology for post-separation parenting arrangements has generated a lot of interest in recent years. Respondents were asked how often they use terminology other than "custody" and "access" in their agreements. The majority of respondents said that they do use other terminology with 50 percent (n=55) stating that they often use other terminology, and 21 percent (n=23) stating that they almost always use other terminology. Only 10 percent (n=11) stated that they rarely use other terminology in their agreements, and 19 percent (n=21) said they occasionally use other terminology.

When asked how often they use alternate terminology in their orders, however, the pattern was somewhat different. The majority of respondents stated that they rarely (26 percent; n=29) or occasionally (38 percent; n=42) use alternate terminology in their orders. About one quarter of respondents (27 percent; n=30) said that they often use alternate terminology, and only eight percent (n=9) said that they almost always use alternate terminology in their orders.

The survey asked respondents to what extent legislative amendments to the Divorce Act replacing the terms "custody" and "access" with "parenting order," (which includes decision-making responsibilities and parenting time), would promote a less adversarial process. Three quarters of respondents thought that legislative changes would have an effect, with 50 percent (n=58) indicating it would have somewhat of an effect, and 26 percent (n=30) indicating that it would affect the process to a great extent. One quarter (24 percent; n=27) stated that they thought changing the terminology would have no effect on the adversarial process.

Respondents were asked, based on their experience, how often parents are sharing decision making in specific areas. As indicated in Table 2.9, the majority of respondents said that parents shared decision making often or almost always in the areas of health (61 percent) and education (58 percent). The majority of respondents indicated that parents shared decision making occasionally or often in the areas of religion (63 percent) or culture (62 percent). Out of 23 respondents who indicated an "other" area, 15 (65 percent) said that parents were sharing decision making regarding extracurricular activities/recreation.

Table 2.9  Respondents' Perceptions of How Often Parents Share Decision Making in Specific Areas

Decision-making Area Rarely Occasionally Often Almost Always Missing
n % n % n % n % n %
Health 9 7.7 32 27.4 50 42.7 21 17.9 5 4.3
Education 7 6.0 37 31.6 52 44.4 16 13.7 5 4.3
Religion 22 18.8 37 31.6 37 31.6 12 10.3 9 7.7
Culture 21 17.9 36 30.8 37 31.6 10 8.5 13 11.1

Parents may not comply with their custody/access orders for a variety of reasons. Respondents were asked, in their experience, when parents do not comply, what are the circumstances of the case and how frequently do they occur (see Table 2.10). The most frequent circumstance was that the access parent was late returning the child, which 41 percent of the respondents (n=48) said occurred often or occasionally (39 percent; n=45). The circumstance that occurred least frequently was family violence, which half of the respondents (49 percent; n=57) said occurred rarely, and 35 percent (n=41) said occurred occasionally.

Table 2.10
Respondents' Perceptions of What the Circumstances are When Parents do not Comply with their Custody/Access Orders and How Frequently it Occurs

Circumstance Rarely Occasionally Often Almost
Always
Missing
n % n % n % n % n %
Access parent does not exercise access 17 14.5 58 49.6 38 32.5 0 0.0 4 3.4
Access parent is late returning child 16 13.7 45 38.5 48 41.0 3 2.6 5 4.3
Custodial parent refuses access for no valid cause 15 12.8 60 51.3 34 29.1 2 1.7 6 5.1
Custodial parent refuses access for cause (e.g., access parent intoxicated) 25 21.4 72 61.5 14 12.0 1 0.9 5 4.3
Child refuses visit with access parent 23 19.7 68 58.1 22 18.8 0 0.0 4 3.4
Frequent changes in schedule 27 23.1 53 45.3 30 25.6 2 1.7 5 4.3
Family violence concerns 57 48.7 41 35.0 12 10.3 3 2.6 4 3.4

Lawyers were asked what proportion of their cases (in which children are involved) included supervised access or exchange. Both supervised access and supervised exchange were relatively rare. Respondents reported that an average of only eight percent of their cases included supervised access (range of 0 percent to 60 percent), and an average of six percent of their cases included supervised exchange (range of 0 percent to 40 percent). Lawyers were then asked under what circumstances they would recommend supervised access or exchange to their clients. The results are presented in Table 2.11. Respondents were most likely to recommend supervised access in cases of: allegations of child abuse (85 percent); substance abuse (80 percent); and mental health concerns (80 percent). Respondents were most likely to recommend supervised exchange in cases of: high conflict (77 percent) and spousal violence (69 percent). Ten respondents stated an "other" circumstance in which they would recommend supervised access to their client. Of the 13 responses provided, the most common reason for recommending supervised access was for cases in which there had been a period of no contact between the parent and the child; this was to allow for reestablishment of the relationship. Only two percent of the respondents said that supervised access is not available in their jurisdiction, and only seven percent reported that supervised exchange was not available. One respondent commented that, "judges rarely order supervised access or exchange so it is difficult to recommend it."

Table 2.11
Proportion of Respondents Recommending Supervised Access or Exchange Under Various Circumstances

Circumstance Supervised
Access
Supervised
Exchange
n % n %
In high conflict situations 29 26.4 85 77.3
In situations of spousal violence 43 39.1 76 69.1
In situations where there are allegations of child abuse 94 85.5 34 30.9
In situations where there is substance abuse 88 80.0 37 33.6
In situations where there are mental health concerns 88 80.0 42 38.2
Not available in my jurisdiction 2 1.8 8 7.3
Other 10 9.1 4 3.6

The survey asked lawyers in what proportion of their cases with children involved, was parental relocation (mobility) an issue. While the range was widespread (0 percent to 65 percent), the average was relatively low (12 percent). In cases where parental relocation was an issue, lawyers were asked what reasons were given for the move, and how frequently they occurred. As indicated in Table 2.12, the most common reason was to be with a new partner, which 57 percent of the lawyers reported occurred often. Other reasons that lawyers reported occurred often were to be closer to family/friends (51 percent) and employment opportunity (49 percent).

Table 2.12
Respondents' Perceptions of How Often Specific Reasons are Given in Cases Where Parental Relocation is an Issue

Reason Rarely Occasionally Often Almost Always Missing
n % n % n % n % n %
Employment opportunity 7 6.0 23 19.7 57 48.7 21 17.9 9 7.7
Educational opportunity 25 21.4 43 36.8 23 19.7 1 0.9 25 21.4
To be closer to family/friends 2 1.7 28 23.9 60 51.3 13 11.1 14 12.0
To be with new partner 7 6.0 20 17.1 67 57.3 13 11.1 10 8.5
No particular reason 38 32.5 19 16.2 7 6.0 0 0.0 53 45.0

Lawyers were then asked what the circumstances were in cases of parental relocation, and how frequently they occurred (see Table 2.13). The most common circumstances were when the custodial parent wished to move within the province/territory (36 percent said this occurred often, and 44 percent said it occurred occasionally), and when the custodial parent wished to move to a different province/territory (36 percent said this occurred often, and 38 percent said it occurred occasionally). Parental relocation was rarely an issue when the custodial parent wished to move within the city (56 percent) or outside the country (61 percent). Not surprisingly, parental relocation was rarely an issue when the access parent wished to move.

Table 2.13
Respondents' Perceptions of What the Circumstances are in Cases Where Parental Relocation is an Issue and How Frequently it Occurs

Circumstance Rarely Occasionally Often Almost
Always
Missing
n % n % n % n % n %
Custodial parent wishes to move within the city 65 55.6 21 17.9 17 14.5 2 1.7 12 10.3
Custodial parent wishes to move within the province/territory 8 6.8 52 44.4 42 35.9 7 6.0 8 6.8
Custodial parent wishes to move to a different province/territory 7 6.0 44 37.6 42 35.9 16 13.7 8 6.8
Custodial parent wishes to move outside the country 71 60.7 24 20.5 6 5.1 7 6.0 9 7.7
Access parent wishes to move within the city 79 67.5 12 10.3 10 8.5 0 0.0 16 13.7
Access parent wishes to move within the province/territory 54 46.2 32 27.4 16 13.7 0 0.0 15 12.8
Access parent wishes to move to a different province/territory 56 47.9 34 29.1 10 8.5 1 0.9 16 13.7
Access parent wishes to move outside the country 84 71.8 14 12.0 1 0.9 1 0.9 17 14.5

2.7  Federal Child Support Guidelines

All respondents were asked the extent to which they thought the Federal Child Support Guidelines were meeting their stated objectives. Respondents overwhelming agreed that the Guidelines are meeting their objectives (see Table 2.14). Almost all respondents (92 percent) agreed or strongly agreed that the Child Support Guidelines have resulted in a better system of determining child support than the pre-1997 system. Similarly, 88 percent of respondents agreed or strongly agreed that cases are settled more quickly since the implementation of the Guidelines. A total of 86 percent agreed or strongly agreed that since implementation of the Guidelines, most cases are resolved simply by relying on the tables to establish amounts of support. Finally, 86 percent agreed or strongly agreed that in cases involving litigation, the issues to be resolved are more defined and focussed than prior to implementation of the Guidelines.

Table 2.14
Respondents' Opinions Regarding Objectives of the Federal Child Support Guidelines

Objective Strongly Agree Agree Disagree Strongly Disagree Missing
n % n % n % n % n %
Overall, the Child Support Guidelines have resulted in a better system of determining child support than the pre-1997 system. 46 39.3 62 53.0 6 5.1 2 1.7 1 0.9
Cases are settled more quickly since the implementation of the Guidelines. 42 35.9 61 52.1 10 8.5 2 1.7 2 1.7
Since implementation of the Guidelines, most cases are resolved simply by relying on the Tables to establish amounts of support. 42 35.9 58 49.6 11 9.4 5 4.3 1 0.9
In cases involving litigation, the issues to be resolved are more defined and focussed than prior to implementation of the Guidelines. 34 29.1 66 56.4 12 10.3 2 1.7 3 2.4

Respondents were asked what proportion of their cases involves undue hardship applications. Undue hardship applications were rare, with respondents reporting that they occurred in only 6 percent of their cases (range of 0 percent to 35 percent).

When asked how often income disclosure is a problem in their experience, the majority of respondents said that it was either often (49 percent; n=57), or almost always (seven percent; n=8), a problem. Just over a third of respondents (37 percent; n=43) said that income disclosure is occasionally a problem, and few respondents (seven percent; n=8) said that it is rarely a problem. When asked to explain what the problem with income disclosure is, 79 respondents made 130 comments. The most frequent comments were: self-employed income continues to be problematic (46 percent of respondents); unwillingness to disclose or provide supporting documentation (32 percent); problems with tax returns (14 percent); and undisclosed income/cash payments (11 percent).

Respondents were asked how often second families are an issue in their experience. The majority indicated that second families are an issue occasionally (50 percent; n=58), and over one third of respondents (36 percent; n=42) said that second families are an issue often. A relatively small proportion of respondents indicated that second families are an issue rarely (11 percent; n=13) or almost always (3 percent; n=3). When asked to explain what the issue is, 61 respondents made 83 comments. The most common comments were: affects standard of living because there are too many demands on a limited income (39 percent of respondents); creates access problems (21 percent); and child support payors with second families often refuse to acknowledge first family obligations (16 percent).

All respondents were asked if there are any other areas of the Federal Child Support Guidelines that they have found to be problematic. A total of 168 comments were made by 91 respondents. Respondents identified the most problematic areas of the Guidelines as: section 9—shared custody and the 40 percent rule (45 percent of respondents); section 7—special or extraordinary expenses (42 percent); children over the age of majority/post-secondary education (14 percent); and second families (11 percent). Comments that capture these problems are:

The 40 percent rule is a big problem. Often people are trying hard to get to the 40 percent rule in order to seek a reduction in support. There is also an issue in that the actual costs of raising the children, once the 40 percent time is reached, are not considered. The appropriate reduction in support (if any) once the 40 percent threshold is reached is problematic. A set off is common but not always fair.

Section 7 expenses—case law and judges are very inconsistent in their application, which leads to greater litigation—primarily in the areas of post- secondary school expenses and extraordinary extracurricular expenses. Health costs appear to be a lesser issue (clients usually identify these needs with the child). May have to define financial limits within ranges of income, so contribution limits can be better defined. For example, at what point are special expenses in relation to the parties' income unreasonable.

Over 18—post-secondary education costs—why do children from separated parents have the right to a paid education by parents who are often financially burdened by effects of separation and support obligations? This needs to be brought back to reality! Children from non-separated parents certainly don't have these privileges. This needs to be clarified and soon.

Payors with multiple recipients—should be a different table for payors, with obligations to children in different homes; it is not an appropriate use of payors' resources to pay unreduced full table amount for one child, to two recipients, as the child then has inappropriately reduced resources when with the payor.

2.8  Spousal Support

All respondents were asked in what percent of their cases is spousal support an issue. The average was 48 percent, ranging from two percent to 100 percent. Respondents were asked if there is consistency in how spousal support applications are handled, and three quarters (78 percent; n=88) said no, and 22 percent (n=25) said yes. Respondents were then asked, in cases where spousal support is an issue, what the circumstances are and how frequently they occur. The results are presented in Table 2.15. The circumstances that respondents reported occurring often were: claimant spouse is a stay-at-home parent (56 percent); claimant spouse was a stay-at-home parent to children now grown and is not in the labour force (56 percent); and, payor's income is considerably higher than claimant spouse's income (57 percent). The circumstance that respondents reported occurred rarely (44 percent), or occasionally (44 percent), was the couple had no children and claimant spouse is not in labour force.

Table 2.15
Respondents' Perceptions of What the Circumstances are in Cases Where Spousal Support is an Issue and How Frequently it Occurs

Circumstance Rarely Occasionally Often Almost Always Missing
n % n % n % n % n %
Claimant spouse is a stay-at-home parent 0 0.0 34 29.1 66 56.4 12 10.3 5 4.3
Claimant spouse was a stay-at-home parent to children now grown and is not in labour force 5 4.3 34 29.1 65 55.6 8 6.8 5 4.3
Couple had no children and claimant spouse is not in labour force 51 43.6 51 43.6 8 6.8 2 1.7 5 4.3
Respondent's income is considerably higher than claimant spouse's income 2 1.7 18 15.4 67 57.3 26 22.2 4 3.4
Potential payor has income of $75,000 or more 8 6.8 41 35.0 48 41.0 15 12.8 5 4.3
Trade off of property in lieu of monetary spousal support 26 22.2 55 47.0 27 23.1 2 1.7 7 6.0

In cases where both child support and spousal support are issues, respondents were asked which issue is typically dealt with first. Almost all respondents (94 percent; n=107) stated that child support is dealt with first. Only six percent (n=7) said that both issues were resolved together, and no respondents said that spousal support was dealt with first.

When asked if it is useful to try to establish non-binding spousal support guidelines, over three quarters of respondents (78 percent; n=87) said yes, and 22 percent (n=24) said no. In unsolicited comments, one respondent stated, "nothing could be worse than the current mess." On the other hand, another respondent cautioned:

I am very worried about this initiative. These will be "binding" as soon as they are released (i.e., now). We need to have a debate about whether we should even have guidelines.

2.9  Family Violence

The Government of Canada strongly believes that it is important to send a message that all aspects of the family law system must take into account incidents of family violence involving the child or a member of the child's family. Survey respondents were asked if they always make inquiries to attempt to identify cases of family violence. Over three quarters of respondents (76 percent; n=80) said yes, while 24 percent (n=25) said no. However, when asked if they use a screening tool (i.e., standardized questionnaire) to identify cases of family violence, almost all respondents (90 percent; n=94) said no, while 11 percent (n=11) said yes. Respondents who said they did use a screening tool were asked what tool they used, and most (n=5) said they use their own, which suggests they are not using a standardized measure.

When asked if they are familiar with the services available for their clients in cases where there is family violence, the vast majority of respondents (89 percent; n=93) said that they are; six percent (n=6) said that they are not, and six percent (n=6) said that there are no services available in their area.

Respondents were asked, in cases involving spousal violence, how the court addressed the issue, and how frequently it occurred. As indicated in Table 2.16, over one third of the respondents (35 percent) indicated that the court rarely addressed the issue. When the court did address the issue, the most likely response was to deny custody to the abusive parent (31 percent of respondents said this occurred often, and nine percent said it almost always occurred). Court responses that respondents stated were rarely used included: access was denied to abusive parent (48 percent); parents were educated on the effects of family violence on children (43 percent); and child was given legal representation (41 percent). Specific comments provided by respondents included:

There is a significant failure by court to recognize that an abuser's pursuit of access issues is possibly (in many cases) motivated by a desire to continue control or harassment of the victim, and to assess access claims in that light.

Courts do not get the effects of violence on kids—we need legislative change, training—we need "best interest" defined to include mandatory consideration of violence—we need a rebuttable presumption against custody or access to abusing parent.

Table 2.16
Respondents' Reports on How the Court Addressed the Issue in Cases Involving Spousal Violence and How Frequently it Occurred

Court Response Rarely Occasionally Often Almost Always Missing
n % n % n % n % n %
Assessment services were used 34 29.1 32 27.4 21 17.9 2 1.7 28 23.9
Child was given legal representation 48 41.0 31 26.5 12 10.3 2 1.7 24 20.5
Access supervision was ordered 17 14.5 47 40.2 26 22.2 5 4.3 22 18.8
Exchange supervision was ordered 29 24.8 36 30.8 21 7.9 6 5.1 25 21.4
Counselling services were used 27 23.1 35 29.9 26 22.2 8 6.8 21 17.9
Parents were educated on the effects of family violence on children 50 42.7 24 20.5 16 13.7 2 1.7 25 21.4
Access was denied to abusive parent 56 47.9 29 24.8 9 7.7 1 0.9 22 18.8
Custody was denied to abusive parent 15 12.8 27 3.1 36 30.8 11 9.4 28 23.9
Court did not address the issue 41 35.0 25 21.4 12 10.3 10 8.5 29 24.8

Respondents were also asked, in cases involving child abuse, how the court addressed the issue, and how frequently if occurred. Table 2.17 shows that one half of the respondents (50 percent) indicated that the court rarely addressed the issue. When the court did address the issue, the most likely responses were: to deny custody to the abusive parent (63 percent of respondents said this occurred often or almost always); and access supervision was ordered (61 percent said this occurred often or almost always). Court responses that respondents stated rarely were used included: parents were educated on the effects of family violence on children (35 percent); child was given legal representation (32 percent); and court made referral to child welfare agency (29 percent).

There were interesting differences in respondents' reports on how the court addresses cases involving spousal violence and child abuse. The court is much more likely to deny custody and access to abusive parents in cases of child abuse, than in cases of spousal violence. The court is also much more likely to order access supervision and use an assessment service in cases of child abuse. Surprisingly, the court is also more likely to not address the issue of family violence when child abuse is involved than when spousal violence is involved.

All respondents were asked if training sessions on spousal violence issues are available to family justice professionals in their jurisdiction. Over one half (58 percent; n=57) said no, while 42 percent (n=41) said yes. Respondents who said yes were asked if they thought the training was adequate, and one half (53 percent; n=18) said yes, and 47 percent (n=16) said no.

Table 2.17
Respondents' Reports on How the Court Addressed the Issue in Cases Involving Child Abuse and How Frequently it Occurred

Court Response Rarely Occasionally Often Almost Always Missing
n % n % n % n % n %
Assessment services were used 11 9.4 26 22.2 24 20.5 27 23.1 29 24.8
Child was given legal representation 37 31.6 22 18.8 23 19.7 10 8.5 25 21.4
Access supervision was ordered 2 1.7 22 18.8 45 38.5 26 22.2 22 18.8
Exchange supervision was ordered 22 18.8 27 23.1 22 18.8 10 8.5 36 30.8
Counselling services were used 23 19.7 28 23.9 31 26.5 5 4.3 30 25.6
Parents were educated on the effects of family violence on children 41 35.0 26 22.2 14 12.0 3 2.6 33 28.2
Access was denied to abusive parent 22 18.8 29 24.8 29 24.8 8 6.8 29 24.8
Custody was denied to abusive parent 6 5.1 9 7.7 34 29.1 40 34.2 28 23.9
Court made referral to child welfare agency 34 29.1 26 22.2 15 12.8 9 7.7 33 28.2
Court did not address the issue 58 49.6 14 12.0 2 1.7 2 1.7 41 35.0

When asked if training sessions on child abuse issues are available to family justice professionals in their jurisdiction, approximately one third (36 percent; n=35) said that they were, while 64 percent (n=62) said no. Respondents who said yes were asked if they thought the training was adequate, and 59 percent (n=17) said yes, and 41 percent (n=12) said no.

2.10  General Comments

The survey concluded by asking respondents if they had any other comments about the family law system in Canada. Respondents used this opportunity to voice their views; 42 respondents made 117 responses. The most common responses were: the need for affordable support services (17 percent of the respondents); shortfalls in legal aid (14 percent); and, the need for case/settlement conferences (12 percent). Comments made by respondents included the following:

Collaborative law is the best dispute resolution system that I have seen in my 21 years of practice. I am a trained mediator but use services of other mediators. I am trained in collaborative law and do participate in collaborative law cases. Mediation is good and collaborative law is great as far as accomplishing dispute resolutions.

Legislative amendments are required to mandate that judges shall: a) order early risk assessment; b) order early custody and access assessments; c) put in place safety planning techniques such as supervised exchange, supervised access, restraining orders to err on the side of caution pending the outcome of assessments; and d) order therapeutic intervention to protect children—i.e., gear access to abusive parents based on successful completion of therapy recommendations.

It takes too long to get an order because we have too few judges.

The criminal justice system has more court judges, prosecutors and legal aid defence [than the family law system] because of the risk of incarceration. Victim services are under funded, family law services are also under funded, and whole families are at risk of devastating results of separation (financial difficulties, emotional damage, self esteem).

Stop focussing on assessments and put resources into mediation and settlement conferencing. Assessments often alienate or are unhelpful because they are superficial and really allow parties to be/remain passive in the system—i.e., someone else will decide the future by way of recommendation. Parties with lawyers and judges need to take ownership of issues and work out a future plan, but parties need resources through more parent education, more counsellors available, more/better mediation and more focus on judicial settlement processes.

I would like to see a special program (multidisciplinary, fast-track) for resolution of custody and access issues. A mediator should work with the parents as intensively as possible and, if consent can't be reached, the mediator should report to a judge, with recommendations as to involvement of counsellors and/or independent legal representation for children. This should be available to families even pre-separation—to encourage the development of a parenting plan (even an interim plan) so that the parent can advise the children about what will be happening at the same time as they inform the children of the separation. I would like the family justice system to be more proactive, rather than reactive.

Legal aid is something that needs to be reformed. The rates are so low that lawyers cannot take the work or must cheat when rendering accounts. The effect is to cheapen the work that family lawyers do and I see an erosion of pride and an increase in indifference. Some legal aid lawyers go through the motions. Young lawyers stay away from legal aid cases, not only because of the rates but because they do not want to be stigmatized as a "legal aid lawyer."

The biggest problem is time delay. There are so many cases which, at least in Nova Scotia, don't meet the criteria necessary for an emergency hearing, with the result that parents and children are left in limbo for significant periods of time. People may be left without support or child access for months to years—and this can't effectively be addressed retroactively. Interim arrangements need to be addressed more effectively.


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