Purpose of the Project
In December 2002, the Department of Justice Canada announced its plan to proceed with the Child-centred Family Justice Strategy (CCFJS). The CCFJS is intended to encourage an approach in which family law, the court system, and the legal and social services that implement the law, meet the needs of families undergoing relationship breakdown in a way that promotes the interests of children. In order to meet these needs, the CCFJS will provide new funding to support family justice services; increase the number of judges appointed to Unified Family Courts; and, reform legislation dealing with custody and access.
The Canadian Research Institute for Law and the Family (CRILF) conducted this research project on the current state of the practice of family law in Canada with funding from the Department of Justice Canada. The purpose of the project was twofold: (1) to obtain current baseline information on the characteristics of cases handled by family law lawyers in Canada; and (2) to obtain feedback from both lawyers and judges concerning family law issues based on their knowledge and experience.
Data collection for this project was held in conjunction with the National Family Law Program of the Federation of Law Societies of Canada in La Malbaie, Quebec, July 12-15, 2004. Data collection consisted of two components: (1) a survey completed by conference participants; and (2) workshops conducted with smaller groups of conference participants on specific topics.A project advisory committee was established at the beginning of the project to identify issues to be addressed in the survey and workshops, review the draft survey, and decide on the format and content of the workshops in La Malbaie.
Highlights of Survey and Workshop Findings
Demographics of Survey Respondents
- Of the 117 surveys returned, 92 percent were completed by lawyers, six percent were completed by judges, and two percent were completed by other professionals.
- The lawyers involved in the survey had been practicing family law an average of 17 years, and 81 percent of their practice involved family law cases.
- A substantial proportion of respondents had attended education and training programs in the following areas: child support guidelines, spousal support, custody/access, and property division.
- Survey respondents handled an average of 93 family law cases in the past year; an average of 74 percent of those involved children.
- Survey respondents reported that cases were resolved most frequently in the following manners: settled by negotiation before trial (48 percent) and settlement conference (24 percent), with only a minority (14 percent) being decided by a judge.
- Issues that survey respondents identified as most likely to require a trial and judicial decision to be resolved in divorce cases were: spousal support (74 percent); custody (54 percent); and property division (44 percent).
- Issues that survey respondents identified as most likely to require a trial and judicial decision to be resolved in variation cases were parental relocation (64 percent) and spousal support (60 percent).
- Survey respondents said they keep informed about family justice services through the following mechanisms: colleagues; provincial/territorial continuing legal education courses; local professional seminars; professional associations and meetings; national or international conferences; and professional publications.
- Lawyers who responded to the survey 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, marriage or relationship counseling, and individual counselling. Clients are least likely to be informed about collaborative family law, child assessment services, parenting plans, and supervised exchange.
- Survey respondents said that their cases are somewhat more likely (51 percent) or much more likely (19 percent) to be settled out of court because of the family justice services that are available.
- Survey respondents reported that the following services would be helpful to their clients, but are not available in their community: supervised access/affordable supervised access; mediation/affordable mediation; parent information/education services or programs; and assessments/assessors/assessment centres.
- Over half of the survey respondents (57 percent) said there is a Unified Family Court in their province/territory. 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.
- Over half of the survey respondents (59 percent) who do not have Unified Family Courts in their jurisdiction said they would like to see them established.
Best Interest Criteria
- A somewhat surprising 44 percent of survey respondents said that even when parents are aware of the negative effects of separation/divorce on their children, this awareness does not affect their behaviour. The most common reasons given for this were: parents are unable to isolate their children's interests from their own; the emotional and/or financial repercussions of the separation interfere, and parents can't get past their anger; even when parents are aware, they have difficulties changing their behaviour; parents often use their new awareness against the other parent; and the ability to change depends on their education level, relationship between the parties, and their willingness to change.
- Over one half of the lawyers responding to the survey (56 percent) thought that parenting plans are a good mechanism for ensuring that the best interests of the child are met in all cases, and over one quarter (29 percent) thought they were a good mechanism in high conflict cases.
- Survey respondents said that parenting plans were used in just under one third of their cases (31 percent) involving children. One third of respondents (33 percent) said they have a form they use as a guide for parenting plans, and 84 percent who said they did not have a form said they would find a form useful.
- The vast majority of lawyers responding to the survey reported that they found parenting plans were somewhat or very helpful to their clients. Respondents said parenting plans can diminish day-to-day conflict between parents, help parents to focus on the child, help to identify aspects of parenting and provide guidelines for parents, provide predictability when dividing parental tasks, give parents ownership of their plan and allow them to tailor the plan to their individual needs.
- Survey respondents thought that the best mechanisms to enable children to voice their views were assessment reports (74 percent) and legal representation for the child (65 percent).
- Survey respondents thought the following factors were important when deciding what weight should be given to the child's views: age of child; indication of parental coaching/manipulation; ability of child to understand the situation; child's reason for views; ability of child to communicate; and the child's emotional state.
Custody and Access
- Almost three quarters of survey respondents said that they often or almost always use terminology other than "custody" and "access" in their agreements. However, almost two thirds reported that they rarely or occasionally use alternate terminology in their orders.
- Workshop participants said they use the following terms instead of "custody": "shared parenting," "parenting," "co-parenting," "primary parenting," "primary parent," and "parallel parenting."
- Workshop participants said they used the terms "parenting time" and "parenting care and control" instead of "access."
- Almost all of the workshop participants were aware of the provisions that were in the recently proposed amendments to the Divorce Act (formerly Bill C–22, which died on the order paper in November 2003) regarding parenting arrangements. Approximately 60 percent of the group said that the proposed amendments had an impact on their practice with increased use of parenting plans or new terminology even though the bill was not enacted.
- Three quarters of survey respondents thought that legislative changes to the Divorce Act to replace the terms "custody" and "access" with "parenting order" would promote a less adversarial process.
- Lawyers who responded to the survey reported that very few of their cases involved supervised access (eight percent) or supervised exchange (six percent). Supervised access was most likely to be recommended in cases of child abuse allegations, substance abuse, and mental health concerns. Supervised exchange was most likely to be recommended in cases of high conflict and spousal violence.
Federal Child Support Guidelines
- Survey respondents overwhelming agreed that the Guidelines are meeting their objectives. Almost all respondents agreed or strongly agreed that the Federal Child Support Guidelines have resulted in a better system of determining child support than the pre-1997 system. Similarly, the vast majority of respondents agreed or strongly agreed that cases are settled more quickly since the implementation of the Guidelines; that most cases are resolved simply by relying on the tables to establish amounts of support; and, in cases involving litigation, that the issues to be resolved are more defined and focussed than prior to implementation of the Guidelines.
- Over one half of survey respondents said that income disclosure is often or almost always a problem. The most frequent reasons for this were self-employed income, unwillingness to disclose or provide supporting documentation, problems with tax returns, and undisclosed income/cash payments.
- Over one third of survey respondents said that second families are an issue often, and one half said they are an issue occasionally. The most common reasons were that: second families affect the standard of living because there are too many demands on a limited income; they create access problems; and, child support payors with second families often refuse to acknowledge first family obligations.
- Survey respondents identified the most problematic areas of the Guidelines as: section 9—shared custody and the 40 percent rule; section 7—special or extraordinary expenses; children over the age of majority/post-secondary education; and, second families.
- Survey respondents reported that spousal support was an issue in one half of their cases.
- Three quarters of survey respondents said that there is inconsistency in how spousal support applications are handled.
- Over three quarters of survey respondents said it would be useful to try to establish non-binding spousal support guidelines.
- Three quarters of the workshop participants said that they would like to see legislation that specifically raises domestic violence as a factor in custody and access cases.
- Over three quarters of lawyers who responded to the survey indicated that they always make enquires to attempt to identify cases of family violence. However, almost all respondents said that they do not use a screening tool to identify cases of family violence.
- Approximately one half of the workshop participants said that false or exaggerated allegations of spousal abuse are a significant problem.
- In cases involving spousal violence, over one third of the lawyers who responded to the survey 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.
- In cases involving child abuse, one half of the lawyers who responded to the survey 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, and to order access supervision.
- Approximately one fifth of the workshop participants said that judges needed significantly more education on the issue of family violence, and one half thought that judges needed to be more aware of the social science literature, in particular about the effects of spousal abuse on children.
- Over one half of survey respondents said that training sessions on spousal violence issues are not available to family justice professionals in their jurisdiction.
- Almost two thirds of survey respondents said that training sessions on child abuse issues are not available to family justice professionals in their jurisdiction.
- About three quarters of the workshop participants said that they needed more training on family violence issues.
Overall, data from the survey and the workshops indicate that there are many positive aspects of the current family law system in Canada. One of the most positive components identified by project participants is the Federal Child Support Guidelines. It is clear from the responses received that the Guidelines are meeting their stated objectives and that they have resulted in a much fairer determination of child support than the former regime. Over 90% of survey respondents agreed or strongly agreed that the Federal Child Support Guidelines have resulted in a better system of determining child support than the pre-1997 system.
Participants indicated strong support for case resolution mechanisms other than the traditional judicial resolution of cases. In fact, participants indicated that only about 14% of their cases are resolved by a judge after a hearing or trial. Mechanisms that respondents indicated as most effective were negotiation between lawyers before trial and settlement conferences.
The vast majority of the lawyers who responded to the survey reported that they found parenting plans were helpful to their clients. One third of the lawyers said they have a form that they use as a guide for parenting plans. Of the respondents who do not have a form, 84% said they would find a form useful.
Participants were also very much in favour of changes in terminology as outlined in the proposed (but not passed) legislative amendments to the Divorce Act.Almost all of the workshop participants indicated that they were aware of the provisions in the recently proposed amendments, and about 60% of participants said that these provisions had an impact on their practice. Three quarters of survey respondents thought that legislative changes to replace the terms "custody" and "access" with "parenting order" would promote a less adversarial process.
While project participants identified many positive aspects to the current family law system in Canada, they also highlighted some areas needing improvement. As mentioned above, participants were very supportive of out-of-court mechanisms for settling family law disputes. However, participants also reported that affordable support services were lacking, most notably supervised access, mediation, assessments, and parent education. Survey respondents noted that their clients are generally not well informed about family justice services and issues at the start of their case, which suggests the need for enhanced public legal education initiatives.
Survey respondents identified spousal support as a problematic area in their practice, and three quarters of them indicated that there is inconsistency in how spousal support applications are handled. Over three quarters of the respondents said that it would be useful to try to establish non-binding spousal support guidelines, an initiative that is currently being pursued by the Department of Justice Canada. Although no questions were asked about family law legal aid, a number of respondents volunteered that this is a major concern.
Another problematic area identified by project participants was family violence. Three quarters of workshop participants said that they would like to see legislation that specifically raises domestic violence as a factor in custody and access cases. Participants indicated that in a significant proportion of their cases involving spousal violence or child abuse, the court rarely addressed the issue. One half of the workshop participants thought that judges needed to be more aware of the social science literature on family violence. Three quarters of the participants also said that they themselves needed more training on family violence issues. Over one half of survey respondents said that training sessions on spousal violence issues are not available in their jurisdiction, and two thirds said that appropriate training sessions on child abuse issues are not available for them in their jurisdiction.
Survey respondents' opinions on Unified Family Courts were somewhat mixed. Just over half of the respondents agreed that Unified Family Courts have positive consequences, while about one quarter disagreed. Over half of the survey respondents who do not have Unified Family Courts in their jurisdiction said they would like to see them established. Survey and workshop participants who noted problems with Unified Family Courts stated that judges sitting in these courts needed family law experience for the system to work efficiently and effectively, raising concerns about the rotation into these courts of judges without appropriate expertise.
Even though project participants were very positive about the Federal Child Support Guidelines, they did identify a few problematic areas. One half of survey respondents said the income disclosure is often or almost always a problem. Other problematic areas include shared custody, special or extraordinary expenses, children over the age of majority, and second families.
In conclusion, this project has provided a baseline of information on the characteristics of cases handled by family law lawyers in Canada, as well as legal professionals' opinions on the current family law system. It has identified aspects of the family law system that are working well, and has highlighted areas where improvement is desired. This information will be useful to the Department of Justice Canada as it further develops and implements its Child-centred Family Law Strategy, and interesting for policy makers and others who want to better understand the functioning of Canada's family law justice system.
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