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

3.0  Workshops

The workshops were intended to gain more in-depth information from a smaller group of lawyers and judges concerning family law issues. Workshops included the following topics: (1) parenting arrangements; and (2) family violence. Each workshop had two facilitators and two recorders. The workshops began with a brief introduction of the issue by the facilitators, and the balance of the workshop was spent discussing the issues and hearing participants' views. An effort was made by the facilitators to keep comments relatively brief in order to allow for as many people as possible to be involved. The facilitators asked for a number of questions to be answered by a show of hands. A list of questions was prepared by CRILF to assist the facilitators in guiding the discussion.

3.1  Parenting Arrangements

3.1.1  Workshop Outline

  • Is there a typical parenting arrangement?
  • Are you seeing different parenting arrangements than a few years ago? If so, what type and why is that?
  • What would lead to better parenting arrangements? Would parenting plans help guide parents to arrive at parenting arrangements? Should they be formalized in legislation or regulations?
  • How much do separation agreements impact on the final parenting arrangements post-divorce?
  • Do you use terminology other than "custody" and "access?" If so, what do you use and under what circumstances? Does it benefit your clients to use other terminology? How so?
  • Is access denial a problem? If yes, under what circumstances? How do you ensure that non-custodial parents can exercise their access rights?
  • Are you seeing more cases where access enforcement is a problem compared to a few years ago? If so, why? Do you believe that there actually are more cases, or are more cases being pursued through the legal system?
  • Are you aware of the provisions that were in recently proposed amendments to the Divorce Act and, if so, has this had an impact on your practice (even though the bill wasn't passed)?
  • What issues regarding parenting arrangements are being heard in court? Is this an appropriate use of court time?
  • Is there a perception of gender bias in the courts and, if so, how can it be fixed?

3.1.2  Workshop Results

Terminology

Workshop participants were asked about their usage of terminology other than "custody" and "access." Approximately half the workshop participants reported that they use the term "custody." When asked what terminology they use, other participants said that they use such terms as: "shared parenting," "parenting," "co-parenting," "primary parenting," "primary parent," and "parallel parenting." About one quarter of the workshop participants said they use the term "access." Terms used by the other participants included: "parenting time," and "parent care and control." A participant from Toronto avoids using the "labelling" terms altogether, saying instead "the child resides with the mother…," or "the child resides with the father…." Likewise, a participant from Nova Scotia said agreements are done without labelling the arrangement; the parent is simply named in the agreement. When asked if anyone used the term "visitation parent," only one participant said yes. The comment was made that "you don't visit your kids; you parent your kids [even if you are not the ‘custodial’ parent]."

Workshop participants were asked why they use terminology other than "custody." One participant replied that "custody" makes it sound like the child is chattel. One participant said that some parents demand use of the terms "custody" and "access," but the participant tries to avoid it. Another participant said that it is sometimes hard to avoid using the terms because other ancillary matters require the traditional terminology. A participant from Montreal said that even though the heading in an agreement is labelled "custody and access," there is no use of that terminology in the actual paragraph. Instead, the paragraph would read: "the mother shall have the child…and the father shall have the child…."

Access Denial

Workshop participants agreed that access denial is a problem. Approximately one half of the group had been involved in enforcement applications for access, and almost one fifth of the group reported that the denial of access provided for in an agreement or court order occurs in over 25 percent of their cases. One participant said that two thirds of his cases involve an access dispute. Another participant said that it is definitely a problem, especially in cases involving an alcohol or drug addiction.

One participant said that the problem is broader than access; it is tied to money and parent control. The concern was raised that child support dollars may be lost if the amount of access obtained crosses the 40% threshold and it is then not exercised. A judge from Alberta had a number of cases of "attempted extortion," where access was being denied to gain more child support. One participant said that the government needs to consider the issue of separating amount of child support from time spent with children (i.e., Guidelines, s. 9).

A participant from Ontario thought that there should be a law that requires a family court order dealing with access after a bail hearing in cases of domestic violence. This participant said there are often inconsistencies of conditions of bail with prior family court orders.

Access denial is a major problem according to a participant from Regina, who said it occurs in 30 to 40 percent of the participant's cases. For example, a father who has a visitation schedule worked out might ask, "What if she doesn't let me see the child? It's a good question. He could call the police, but they tend to take the view that it's not their business. It would be easier to have some sort of mechanism to enforce access."

The comment was made that the problem of access denial is "not a black and white issue," and that there is an unevenness in the judiciary with respect to enforcing access rights.

A legal aid clinic lawyer from Ontario commented that what needs to be addressed is resources, e.g., supervised access. When asked if they had supervised access services available to them, approximately two thirds of the participants said they did.

A Toronto lawyer said that access denial was a problem when they had a litigation-oriented approach to family law, but now that they practice collaborative family law it is no longer a problem because of the consensual nature of that process.

Proposed Amendments to the Divorce Act

Almost all of the workshop participants were aware of the provisions that were in the recently proposed amendments to the Divorce Act (formerly called Bill C-22, which died on the order paper in November 2003) regarding parenting arrangements. When asked if the proposed amendments had an impact on their practice (even though the bill was not passed), approximately 60 percent of the group said they did. A respondent from Halifax said that it was what started them to cease using the terms "custody" and "access". This respondent now uses "shared parenting," and avoids the "loaded" terminology. A PEI respondent thought the fact that the federal government had agreed in policy to the use of neutral terminology was very helpful. A mediator from Vancouver agreed, and said that from an educational perspective, it was very helpful to be able to use the new language.

One judge reported considerable reliance on the proposed amendments. A judge from Ontario commented that the cases that are reported are not a good cross section of cases. This judge said there is a much larger percentage of cases in favour of joint parenting than the reported cases would reflect.

A participant from Victoria reported that judges have been reluctant to use terms that do not have statutory definitions. The term "custody" is legally defined under federal legislation, as is "guardianship" under provincial law. When asked if anyone was resistant to using the proposed terminology, one participant responded yes, because it created problems with the passport office.

Parenting Arrangement Issues Being Heard in Court

Workshop participants were asked what issues regarding parenting arrangements are being heard in court. A participant from PEI said that an issue that continues to be litigated is that of the amount of access time and its interaction with the Federal Child Support Guidelines (s. 9), i.e., the 40 percent rule. When asked how many workshop participants had significant problems with the 40 percent rule, just about everybody raised their hand.

An Edmonton lawyer said a common issue is an insistence by parents for an equal 50/50 split of custody for shared parenting, i.e., one week on and one week off. This participant was seeing a more aggressive desire by fathers to ensure the 50 percent as an assertion of the importance of involvement of both parents, without consideration of whether it was meeting the child's needs. Almost all workshop participants agreed that they have seen an increase in "50 percent" cases.

There was a clear sense that the number of cases in which fathers are seeking more involvement with their children post-separation has increased dramatically in the past few years.

A participant from Calgary said that she thought the increase in shared parenting cases is because the issue is tied to the Federal Child Support Guidelines, and a potential decrease in the payor's financial obligation. Another participant disagreed, and thought that the increase is because fathers are more involved with their children than they were in the past. Another participant described this as men being more genuinely bonded to their children and, upon separation, these men are heartbroken, have a sense of loss, and need to be with their children. A third reason mentioned by another participant is that fathers are now more aware that there are other options available to them.

Workshop participants discussed these three reasons for an increase in the number of shared parenting cases. A judge from Alberta agreed with the second reason, and said she had not had a problem with fathers in shared parenting situations being unwilling to pay child support. A lawyer said that they try to avoid the "fight of time," and instead talk about financial contribution. One participant said they agree that all three reasons are valid, but perhaps the approach of tying child support to parenting time is an "insult." This participant didn't think dads are opposed to paying support, but the problem is that the receiving parent's income is not taken into account. A less offensive approach would be to look at what resources there are for two family units, which takes the issue of money away from parenting time.

A participant from Quebec said that the process for determining child support is different in Quebec, since Quebec opted out of the Federal Child Support Guidelines. In Quebec, both parents' incomes are taken into account and prorated with time spent with the child(ren). This participant said that she represents more mothers than fathers. In her experience, the fathers always paid the support. When the mother was the payor, however, every case but two ended up going to court.

When the group was asked what they thought the most predominant reason was for an increase in shared parenting cases, approximately one quarter of the workshop participants thought it was due to Federal Child Support Guidelines provisions, one quarter thought it was because fathers are more aware of their options, and one half thought it was because fathers are more involved with their children. When asked who thought it was "all of the above," approximately one half to two thirds of the group said yes. A participant from Nova Scotia agreed that all three reasons were valid, but also thought that it depends on the degree of involvement of the father. This participant had a case where the father thought he should be paid to babysit his children. The father expressed indignation when he was sent to a parenting class.

Typical Parenting Arrangement

None of the workshop participants thought that there is a "typical" parenting arrangement.

Workshop participants were asked what services they were using, and what the trends were. A Calgary lawyer responded that he used judicial dispute resolution, which is similar to lawyer-assisted mediation, but had better results in high conflict cases. An Edmonton lawyer reported the use of collaborative family law and four-way settlement meetings. Another participant also reported use of the collaborative process and child specialists.

Gender Bias in the Courts

Approximately one half of the workshop participants thought that there is gender bias in the courts. When asked against whom, these participants said against men. No participants thought that gender bias against women was a problem. One participant said that male clients think there is a gender bias against them. When the group was asked if this is increasingly so, approximately ten participants raised their hands, while about four disagreed. One participant commented that it depends on the judge, and that is it a huge problem in the part of Nova Scotia where they practice.

The workshop participants who thought there was gender bias in the courts were asked if they thought the problem was getting worse, getting better, or about the same as in the past. Approximately three quarters thought the problem of gender bias in the courts was about the same; about one quarter thought it was getting better, and nobody thought it was getting worse.

One participant said that they have observed a shift away from gender bias in the courts as children become more involved in the process, and let it be known what they want. The question was raised as to whether children are being involved, or whether parents are manipulating the children. The group was asked if they thought parental alienation was a significant problem. Approximately one half of the group said it was. One participant said they have a number of interim custody applications where parental alienation is an issue.

Impact of Separation Agreements on Final Parenting Arrangements

Workshop participants were asked about the longer-term effects of separation agreements, and whether the agreements are generally honoured post-divorce. One participant responded that it was hard to answer that since, as lawyers, they only hear from clients again when there is a problem; if the clients are happy, the lawyers don't hear from them. Participants were then asked what percentage of their clients calls them back to renegotiate a separation agreement. About one third of the group reported that it occurs in 10 percent of their cases, three participants said it occurs in about 25 percent of their cases, and nobody reported that it occurs in 50 percent or more of their cases.

Interestingly, one workshop participant said that they find that the most hotly contested agreements are the ones that tend to stand up over time. "It's the ones who just want to get it over with that make a mistake." Another participant said that good detailed agreements stand up, especially if they include fall-back conditions (e.g., if no decision is made by a certain date, then this will happen).

3.2  Family Violence

3.2.1  Workshop Outline

  • How aware are lawyers and judges about the issue of family violence and its effects on family law cases? Are lawyers and judges aware that the social science literature shows that exposure to spousal violence is harmful to children?
  • In cases involving spousal violence, do you always raise the issue with the court (e.g., through pleadings, affidavits, submissions)? If not, why not?
  • Does the presence of spousal violence affect how you resolve a case? If so, how?
  • Does the presence of spousal violence affect custody and access determinations by the courts? Do you think it should? Do your clients think it should?
  • Does the presence of spousal violence affect the exercise of access? If so, how?
  • Is there a perception of gender bias in the courts and, if so, why?
  • Is the family justice system adequately protecting victims of abuse (i.e., are parenting arrangements compromising safety)?
  • Are you aware of the provisions that were in recently proposed amendments to the Divorce Act in regard to family violence and, if so, has this had an impact on your practices (even though the bill wasn't passed)? Family violence was listed as one of best interest criteria—would this particular change influence the approach taken by practitioners in these cases? If so, how?
  • To what extent are false allegations of spousal or child abuse an issue? To what extent are intentionally false allegations of abuse an issue? How should these problems be addressed?
  • Do you have cases where clients don't raise legitimate concerns of family violence? If so, why do your clients not raise these issues?

3.2.2  Workshop Results

Awareness Level of Lawyers and Judges about the Issue of Family Violence and its Effects on Family Law Cases

A participant from New Brunswick in practice 29 years said that the judiciary is sensitive to the issue of family violence. This participant, however, wanted to distinguish between interim and final orders. On interim orders, lawyers often don't have the opportunity to cross-examine on affidavits and judges have a limited basis on which to resolve credibility issues arising from conflicting affidavits. Judges are then reluctant to factor in family violence because there is no way to independently test the claim. So, for example, you might want a supervisory order, but don't get it. When asked if there was enough judicial training, the participant from New Brunswick said that it varies from court to court, with younger judges having more of an understanding of family violence issues.

Workshop participants were asked if they thought judges needed significantly more education on the issue of family violence, and approximately one fifth of the group said yes. A participant from Manitoba said that it wasn't just judges who needed more training; magistrates in that province who deal with emergency civil orders also needed more education on the issue, adding that all "first instance," or emergency response people need more education.

The group was asked if they thought judges were aware of the social science literature that shows that exposure to spousal violence is harmful to children. Approximately one half of the workshop participants thought that judges needed to be more aware of the social science literature. Participants were then asked if they thought lawyers who represent family clients were aware of the literature. A participant from British Columbia said that they didn't want to be "unpolitically correct," but in their experience, family violence is used as a tactic. If a fight is provoked, the police will be called and will remove the husband from the home. This participant said it is difficult to distinguish between a "true case" of family violence and one that has been blown out of proportion. For example, an affidavit might say, "my husband is abusive." The word "abusive" is overused. You don't get "my husband hit me on such and such a day…."

False Allegations of Spousal Abuse

Workshop participants were asked if they thought false or exaggerated allegations of spousal abuse are a significant problem. Almost one half of the group raised their hands. Participants were then asked if they thought false allegations are not a significant problem, and about one quarter of the group agreed with this statement.

Participants were then asked if they thought that there are significant numbers of women who are being abused, but are not being brought before the courts. Almost one half of the group reported yes. A lawyer pointed out that this question is being asked of people who don't have training in family violence. While training is key for judges, it is also very important for lawyers.

Workshop participants were asked if they thought they had adequate training in family violence issues, and about one third said yes. Participants were then asked how many thought that they needed more training, and almost three quarters of the group said yes. One participant who teaches family law at the University of Manitoba said that there is only one required course in family law for students and, in that course, only one week is spent on domestic violence; the participant felt it was not enough. Participants who had received training in family violence issues were asked where they received their training, and the response was in shelters, often as a volunteer. A judge from Alberta said that it doesn't matter how much training you have, it's still a credibility issue if the courts do not have screening up front.

Another participant said that cases involving males who are domestically abused are harder to deal with than cases where women are abused. Participants were asked how many had cases with male victims, and about one fifth of the group said they did. One participant said it doesn't happen very often, but it's a very difficult problem when it does. The distinction was made that while the numbers might not be significant, the issue is.

Workshop participants were asked if mutual abuse was a prevalent problem. About eleven participants reported that it was, while three reported that it was not a prevalent problem.

A lawyer from Nova Scotia said that the biggest problem is that men will not admit being abused. Even if it is reported, they often don't want you to do anything about it. The issue only comes out after there is an establishment of trust between the lawyer and the client. Men will often not see themselves as victims of abuse, but will admit that inappropriate actions have taken place, e.g., their spouse hit them, or pushed them.

There needs to be a focus on the impact of violence in the home, including the impact on children. Often, even women will not see themselves as victims, but will say they are the recipients of family violence. The facilitator asked if "victim" labels should be avoided, and the lawyer said yes. It is important to find out what is going on in the household.

Workshop participants were asked if they ask family law clients screening questions related to physical abuse. Just over one half of the group reported that they did, and five participants reported that they did not.

Raising the Issue of Family Violence with the Court

Workshop participants were asked if they always raise the issue of family violence with the court. A lawyer from Ontario said it's a "judgment call" as to whether or not they will raise it. They have to analyze the actual circumstances and strengths of the client, and ascertain whether she can go through that process and survive it. The process itself can be very damaging to the client. The facilitator asked if this occurred in cases where relief from violence was sought, such as an exclusive possession order, or in cases of custody and access. The participant said that they always raise the issue with the court when it is for relief from violence; in cases of custody and access, it is a judgment call.

A lawyer from Calgary said she had a client whose husband threatened to kill her a year previously. The lawyer didn't think she would be able to get a restraining order, so she advised her client to go to court to seek an emergency protection order under Alberta domestic violence legislation by herself. The client did get the emergency order, but was killed by her husband two weeks later. Another respondent agreed that judges want to see if the violence has happened recently before it is taken into account.

A judge from Alberta said that whether a case involved spousal violence or conflict, it was all going to harm the child. Instead of getting into a "he said, she said" dispute resolution process, the judge should establish a regime that does not require the parents to interact (parallel parenting). This might involve mutual restraining orders, but this is not necessary in all cases.

Workshop participants were asked how many do not always raise the issue of family violence with the court, and about one half of the group said that they do not always raise the issue. When asked how many always raise the issue "right off the bat," about nine participants reported that they do. A lawyer from Nova Scotia said that he often doesn't raise the issue of family violence unless on instruction from the client, because if the issue is raised, there is a mandatory checklist and Social Services has to get involved. It creates a huge problem in his jurisdiction, as clients may be concerned about loss of their children to Social Services if the agency becomes aware of family violence issues.

A participant from Winnipeg said that it is important to think about the question of whether to raise the issue of family violence, because the court is not always the best way of managing conflict. The participant stated that "a court order does not stop a knife." Often the conflict can be better managed in other ways.

Resolving a Case that Involves Spousal Violence

Workshop participants were asked if the presence of spousal violence affected how they resolve a case. A participant from British Columbia said that she assumes that a man who hits his wife will also not pay spousal support or child support on a regular basis, and will warn their client. The presence of spousal violence makes this participant automatically feel that she can't rely on average law-abiding actions, because the fellow is not socialized enough. A participant from Winnipeg said that the presence of spousal violence changes the process she uses. She will not go to mediation, and even has to be careful in court itself. There could be a raised eyebrow or tic that the lawyer might not catch, but the client will. A participant from Nova Scotia said that there is a heightened sense of awareness of just how vulnerable clients can be. It also underscores the need for training.

Workshop participants were asked if they had ever been threatened by abusive partners of their clients themselves, and about four fifths said they had been threatened. Participants were then asked if they had ever been assaulted, and about one sixth said yes.

A judge from Vancouver said that there is a trend across the country to require people to go to a judicial case conference to try to reach a resolution. As judges, the participant said that they sometimes don't pick up on the underlying issues, and don't know how to do that at a case conference. The group was asked how many shared this concern, and about one fifth reported that they did.

A participant from Manitoba said that there are various "flash points" where domestic violence can escalate, such as following separation and following orders. One of the worst murders this participant was aware of occurred shortly after an interim order was made, so there are ramifications of raising the issue.

Spousal Violence and its Effect on Custody and Access Determinations

Workshop participants were asked if they were satisfied with how the courts deal with the relationship between spousal violence and custody and access issues. A judge from British Columbia said that it is often difficult to get enough information about these cases. Are the children victims now? Did the children witness the spousal violence? This participant felt that there was a need for more training in the area.

Another participant said that the Muriel McQueen Fergusson Centre for Family Violence Research in New Brunswick just finished a study on the issue. The study found that in cases of documented spousal abuse, there is often child abuse as well. It raises a lot of questions such as: Do we need child representation legislation? Should custody assessments be funded? Legal aid is only available to clients who will say that there are domestic violence issues. All of these issues point to the need for more social science research.

An Ontario lawyer agreed, and said that she had a case where the abusive husband was removed from the home after he was charged. An adolescent son then started to abuse the mother, so the court gave the children back to the father. The children are being raised by an abusive man, and learning the abusive behaviour only continues the cycle of violence.

Proposed Amendments to the Divorce Act

Workshop participants were asked if they were aware of the provisions that were in recently proposed amendments to the Divorce Act (formerly Bill C-22, which died on the order paper in November 2003) in regard to family violence, and approximately 75 percent of the group said yes. When asked if this proposed provision on domestic violence had an impact on their practice (even though the bill wasn't passed), nobody said that it did.

Gender Bias in the Courts

Workshop participants were asked if they thought there was gender bias in the courts, in cases of family violence. One participant said that there is a gender bias against men. He said that one time when he raised the issue of a male client being abused, the judge nearly threw him out of court. Participants were asked if they thought gender bias against men was a significant problem in the family law system. Ten participants said yes. Participants were then asked if they thought gender bias against women was a significant problem, and five participants said yes.

A lawyer from Nova Scotia said that a recent cartoon illustrates how pervasive the problem is. The cartoon shows a couple going into family court; the woman is walking through a "normal" door and the man is entering through the "dog door." This participant said that they were also almost thrown out of court for raising issues of violence against men. A participant from British Columbia told of a case where an abused man committed suicide, resulting in a huge outcry against the judge in the case. This participant did not think the courts are biased, but thought that the media reporting often unfairly raises this issue.

Workshop participants were asked how many had a significant number of male clients who thought the system was biased against them. Over 90 percent said they did. When asked how many had a significant number of female clients who thought the system was biased against them, only two said yes.

A lawyer from Toronto said that there are also cultural issues in terms of reporting abuse and shame, particularly with new Canadians. Participants were asked how many thought this was a significant issue, and two thirds of the group thought it was. One visible minority lawyer disagreed, and said that in her 15 years of practice, culture was not a significant issue at all in regard to domestic violence, because it affects all ethic groups.

A lawyer from Nova Scotia said that she was asked to represent a 15-year-old girl who had immigrated to Canada. The child said that in the country she was from, it was legal to beat your children with sticks. This lawyer said that there are cases where culture comes into play. She also had other cases of excessive discipline that raised cross-cultural issues.

Workshop participants were asked if spousal abuse is an issue among minorities. A participant responded that it is a significant issue as well. Participants were asked if the cases were more complex. A participant said yes, because they still have to live in the same social milieu after the separation. A participant from Ontario mentioned the issue of "Sharia" (Muslim law), and questioned whether Muslim clients truly have a choice about whether to use this approach when the alternative is to be an outcast from the community. Another lawyer from Ontario said that it is often assumed that people from different cultures have lower incomes, but that domestic violence is prevalent throughout all income levels, although reporting practices may differ.

Protecting Victims of Abuse

Workshop participants were asked if the family justice system is adequately protecting victims of abuse. A participant from Nova Scotia had some concerns, and said that some judges order joint custody, even in cases of proven domestic violence.

One participant said that there are a lot of lawyers who don't even raise the issue of family violence, and as a result victims of abuse are not being adequately protected. Lawyers themselves are minimizing the problem. Lawyers are frequently not raising domestic violence concerns at the interim stage. If they do raise it later, the court will question why it wasn't raised previously and there may be doubts about the credibility of the allegation. Another participant said that assessments are not being done early enough, and they should still be paid for.

Participants were asked whether they would like to see legislation that specifically raises domestic violence as a factor in custody and access cases, and three quarters of the group said yes.


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