The Child-centred Family Law Strategy,
Summative Evaluation

2. BACKGROUND AND DESCRIPTION OF THE STRATEGY


2. BACKGROUND AND DESCRIPTION OF THE STRATEGY

This section of the report provides background and context about family law issues in Canada and provides a detailed description of the CCFLS, including its mandate and objectives, governance structure and activities.

2.1. Issues and Trends in Families

In general, Canadians are still more likely to be married than living in a common-law relationship, but there is an increasing trend for couples to enter into common-law arrangements. In fact, according to the 2006 census, compared to previous census data, the number of common-law-couple families increased more than five times faster than married-couple families.[8]

Another trend is that the level of instability in couples' relationships has been increasing. The 2006 Census revealed that 8.1% of the population aged 15 and over was divorced, up from 7.7% in 2001. Between 2001 and 2006, approximately 2.0 million Canadians ended a marriage or common-law relationship.[9] Despite the fact that marriages continue to be more prevalent than common-law arrangements, the total number of separations (including divorce) was equal for both groups, suggesting that common-law relationships are less stable than marriages.[10] Common-law relationships tend to be of shorter duration than marriages, lasting an average of 4.3 years as compared to 14.3 years for marriages.[11] The probability of separation for first relationships is about twice as high in common-law relationships as in marriages (approximately 62% as compared to 30%).[12] The average duration of marriages in Canada appears to be remaining relatively stable or even increasing slightly.[13]

There has been an increase in the number of never-married lone parents as well, which could be attributed to the increase in common-law relationships and subsequent breakdown and the increased acceptability of having children outside of marriage.[14] Although the majority (80.1%) of lone-parent families in 2006 continued to be comprised of women and their children, families headed by men have been growing at a faster rate. Between 2001 and 2006, lone-father families rose 14.6% as compared to an increase of 6.3% for lone-mother families.

Recently, discussions revolving around the best interest of the child principle have increasingly included adoption cases and same-sex couples as parents, as well as the increasing number of custody decisions where judges award joint custody in terms of legal decision-making.[15] The 2006 Census marked the first time that same-sex couples were counted in Canada. About 45,300 same-sex couples were included in the census, with some (less than one in ten) of these couples raising children in the home.[16]

A related trend is the increased involvement of fathers in the parenting of their children, which is resulting in an increase in co-parenting arrangements among separating/divorcing couples, whereby the child care tasks and responsibilities are distributed between both parents.[17] Fewer mothers are being granted sole custody following a divorce than in the past. In 2003, less than half (47.7%) of divorce cases involving custody of dependents awarded custody only or solely to the mother, down from over three-quarters (78.2%) 20 years ago. In contrast, there has been a continuing upward trend of joint custody arrangements, with joint custody of 43.8% of the dependents being awarded to both the father and mother in 2003. Note that joint custody refers specifically to guardianship rights and responsibilities to maintain, protect, educate and provide for the child and typically involve arrangements where both parents share in major decisions that affect the child, although the child may live with one parent for the majority of the time.

Clearly, organizations involved in the family justice system in Canada must continuously adjust activities, programs and supports available to adequately meet the changing needs of separating and divorcing families, particularly the children involved.

2.2. Family Law and Family Justice Activities in Canada

Family law in Canada is an area of shared jurisdiction between the federal and provincial/territorial governments. As a result, two parallel court systems exist, the federal superior courts in the provinces and territories and the provincial/territorial courts, with each court having jurisdiction over specific aspects of family law. Under the Constitution Act (1867), Parliament has exclusive jurisdiction in the area of divorce law, which includes corollary matters such as support and custody, if they arise. The primary federal component of Canada's family law system is the Divorce Act. Provincial family law legislation covers all matters related to the separation of unmarried couples as well as support and custody in cases where no divorce is sought. The provinces/territories also have jurisdiction over matters such as enforcement of support and other obligations, adoption, child protection, change of name, and matters related to the administration of the courts. Each province/territory enacts its own family law legislation and executes its own version or combination of family justice services to address local needs.

Under this division of responsibilities, the federal government does not provide family justice services to Canadians directly; this is a provincial/territorial responsibility. However, the federal government is committed to assisting the provinces/territories in developing, implementing and maintaining these services. As a result, cooperation and coordination of activities between jurisdictions have been key throughout the history of family justice initiatives, including the CCFLS.

The CCFLS should be understood as one of many strategies implemented to support and address family law in Canada. Over the past two decades several successive initiatives were launched by the Department of Justice to assist and work in collaboration with the provinces/territories in creating and enhancing family law policies and services. The CCFLS is the fifth consecutive federal initiative in the area of family law and was developed to support a child-centred family justice system. Programs/initiatives preceding the CCFLS were:

  1. The first Enforcement Fund from 1985 to 1992 ($1.1 million in total);
  2. The second Enforcement Fund (part of the Government of Canada’s Action Plan for Children-Brighter Futures) from 1992 to 1997 ($5.1 million);
  3. The Child Support Initiative including a PT funding component called “The Child Support Implementation and Enforcement Fund as part of the Child Support Initiative from 1996 to 2001 ($63.6 million)”; and
  4. Continuation of the Child Support Initiative including the Family Justice Bridging Fund from 2001 to 2003 ($29.9 million).

The CCFLS represents the Department’s ongoing effort in this area and builds on the experiences and successes of preceding programs and initiatives.

2.3. Description of the Child-centred Family Law Strategy

The broad policy objective of the Strategy is to help develop and maintain a child-centered family justice system that:

Separating/divorcing families, including parents, grandparents and members of the extended family are the intended direct beneficiaries of the CCFLS, particularly the children. The Strategy also supports the individuals and organizations directly involved in family law and in delivering family justice services including family law professionals (e.g., members of the judiciary, members of the family bar), provincial/territorial family justice services and the individuals who provide them, and organizations involved in providing public legal education and information.

In order to support and achieve these objectives, the CCFLS encompasses a number of components and activities.

2.3.1. Pillars of the Strategy

At its inception, the CCFLS consisted of three independent pillars: legislative reform, funding for provincial/territorial family justice services and expansion of the Unified Family Court (UFC). Within the legislative reform pillar there were three planned amendments. These were included in Bill C-22 (December 12, 2002), which was tabled in 2003.[18]

Bill C-22 (December 12, 2002) was to amend the Divorce Act to eliminate the terms "custody" and "access" from the Act for the purpose of determining parenting arrangements. It proposed terminology based on "parental responsibilities" - including decision-making responsibilities such as decisions related to the child's health, education and religious upbringing, as well as parenting time – which would have been allocated by the court through a "parenting order" . Bill C-22 (December 12, 2002) would also have introduced a list of criteria that the courts would have been required to consider in determining the best interests of the child. The other legislative reforms proposed in Bill C-22 included amendments to the 'Family Orders and Agreements Enforcement Assistance Act' (FOAEAA) and the 'Garnishment, Attachment and Pension Diversion Act' (GAPDA), which were intended to provide more and better tools with regard to locating persons who failed to pay child support as well as an amendment to the Judges Act to expand the Unified Family Court, which was part of Bill C-51 tabled in 2005.

The grants and contributions funding component of the Strategy falls within the family justice services pillar of the Strategy. Funding for provincial/territorial family justice services/programs is distributed through the Child-centred Family Justice Fund (CCFJF). Five main types of family justice services are targeted by the Strategy, namely family law information centres, parenting education programs, mediation, support enforcement programs, and support recalculation services. The third pillar of the CCFLS was to deal with the expansion of the UFC model. The federal government began funding UFCs as pilot projects in the 1980s as a means to streamline the family justice system by uniting federal and provincial jurisdiction over all family law matters in one level of court to improve the quality of service. The UFC concept has been adopted by some provinces and is characterized by a number of service delivery characteristics, including:

Bill C-22 (December 12, 2002) died on the Order Paper with the prorogation of Parliament in November 2003 and again in 2005. None of the proposed amendments progressed as planned and the legislative reform element of the CCFLS was never re-introduced. In response to the legislative reforms not being passed and the acknowledgement that it was unlikely that the intended legislative reforms would be re-introduced during the Strategy, the Family, Children and Youth (FCY) Section adjusted and expanded its activities in an effort to continue to support the achievement of the Strategy's objectives. The originally defined goals of the CCFLS remained intact, but the pathways to these goals and the expected immediate outcomes were revised accordingly. As a result, family justice services became the cornerstone of the CCFLS and the activities of the various units in place to deliver the Strategy were adjusted to support this revised focus. The changes to the focus and activities of the Strategy were also reflected in a revised RMAF and logic model.

2.3.2. CCFLS Governance, Structure and Activities

The CCFLS is delivered under the leadership of the Senior General Counsel, FCY Section in the Department of Justice. As summarized in Table 2-1, there are five main areas of activity identified in the Logic Model: family law policy; support enforcement policy; contribution programs; law information and professional training; and research and evaluation.[20]

Table 2-1: CCFLS Areas of Activity
CCFLS Area Activities
Family Law
  • developing legislative and regulatory amendments
  • supporting litigation
  • reviewing international conventions
  • Divorce act amendments
Support Enforcement
  • FOAEAA and GAPDA amendments
  • federal support enforcement infrastructure
  • coordinating enforcement initiatives (nationally and internationally)
  • supporting litigation
  • negotiating a new international maintenance convention
Contribution Programs
  • administering the CCFJF
  • developing and managing funding agreements for programs and projects
  • monitor performance/results of provinces/territories and non-government organizations (NGO) activities
Law Information and Professional Training
  • providing law information and education materials and resources
Research and Evaluation
  • conducting national surveys/special studies
  • advising on policy and program development
  • monitoring and evaluating progress

Although the activities under each component are distinct, the integrated, "multidisciplinary" team approach adopted under previous initiatives was continued. Under this integrated approach, six units of the FCY Section work collaboratively with four other Department of Justice units and a unit within the Courts Statistics Program to support the CCFLS.[21] The six units of the FCY Section are:

The activities (inputs) and outputs associated with each of the units listed above are delineated in the CCFLS logic model contained in Appendix A. The logic model delineates the links between the activities, outputs, outcomes and objectives of the CCSLS.

The other four units involved in the Strategy that are external to the FCY Section include the following:

2.3.3. Provincial/Territorial Involvement

Due in part to the divided jurisdiction of family law, an important element of the Strategy has been the collaboration between the provinces/territories and the Department of Justice. The provinces/territories are involved in a wide range of activities related to the CCFLS, including family justice service/program design and delivery, implementing pilot projects, and developing/providing communications materials and educational activities. The provinces/territories also contribute to improving the family justice system through testing new or innovative approaches to family justice services and delivery mechanisms with funds provided under the CCFJF, and making recommendations for possible improvements to federal enforcement legislation to improve compliance with family support obligations. Since the implementation of the Strategy in 2003, applications were received for 12 pilot projects, with nine applications being accepted, two projects being deferred and one application rejected. A total of $2.05 million was allocated to pilot projects over the course of the Strategy.

Many of the provincial/territorial family justice programs/services delivered are funded wholly or in part by funds allocated through the Child-centred Family Justice Fund (CCFJF). Over the course of the Strategy, $80 million was allocated to the provinces/territories to support the five areas of activity of the family justice services and seven primary areas of funding activities. Recipient provinces/territories are required to allocate at least 60% towards integration activities, at least 20% towards enforcement activities and about 5% to 7% to research. Funds are distributed on a per capita basis with some adjustments made to the allocation to the smaller provinces.[22]

Reporting requirements associated with CCFJF have resulted in the provinces/territories having substantial involvement in the Strategy's performance measurement and evaluation strategy (PMES), with annual reporting responsibilities for each of seven primary areas of funding activity, as well as other research/evaluation activities. They are as follows:

  1. Coordination of family justice activities such as parenting arrangements, child support, and support enforcement.
  2. Development, delivery, enhancement and expansion of innovative child-centred family justice activities and services.
  3. Development, delivery and enhancement of dispute resolution mechanisms to determine, vary or recalculate the amount of child support.
  4. Development, enhancement, and delivery of innovative support enforcement activities.
  5. Provincial/territorial efforts to establish variation and recognition of interjurisdictional support orders.
  6. Research, analysis, monitoring and evaluation activities in family justice.
  7. Funding to support public awareness and understanding of the Child-centred Family Justice Strategy (new legislation and supporting services).

Provincial/territorial officials are active on a number of committees and working groups in conjunction with the Department of Justice, such as the Coordinating Committee of Senior Officials – Family Justice (CCSO-FJ) and a number of related sub-committees which address issues pertaining to family law and its administration, and acts as a forum for discussion of common federal-provincial-territorial issues in this area. The committee reports to the FPT Deputy Ministers of Justice. Further, the Maintenance Enforcement Program Directors Committee is composed primarily of provincial/territorial directors, with one federal representative. The committees and sub-groups are detailed in Appendix B.

The next section provides an overview of the methodology and research activities used in the evaluation, followed by a number of sections detailing the key findings of the evaluation.