Putting Children's Interest First - Federal-Provincial-Territorial Consultations on Custody and Access and Child Support

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INTRODUCTION

Children are very important to Canada's future. For this reason, the federal, provincial and territorial governments want to help parents, lawyers and judges focus on what is best for children when making decisions about separation and divorce.

Even though most separating and divorcing couples end their relationships and arrange for the care of their children without going to court, family breakdown can be difficult for children.

This document talks about two topics related to separation and divorce that affect children. The first is parenting after separation or divorce, and the second is child support. The text explains these topics and contains questions about ways governments can improve both the laws and the services they offer in these areas, so that what is best for children comes first when decisions are being made during separation or divorce.

Family Law in Canada

In Canada, federal, provincial and territorial governments have adopted laws that deal with various aspects of family law, including separation and divorce.

The federal and provincial governments have specific constitutional powers with respect to family law, and the territorial governments have specific responsibilities under their original acts. The federal Divorce Act generally applies when divorcing parents need to settle child custody, access and support. Provincial and territorial laws apply regarding child custody, access and support when unmarried parents separate or when married parents separate and do not pursue a divorce, as well as to some issues in divorce proceedings. These provincial and territorial laws contain provisions regarding parent-child relationships (parental authority, guardianship, etc.). The provinces also have constitutional power over the administration of justice, and the territories have delegated powers. The provinces and territories are responsible for establishing the rules of civil procedure and administering court services within their jurisdiction.

Federal legislation and legislation in common law provinces and territories now use the same terms "custody" and "access," and the same general legal principles apply to govern custody and access issues. The situation is different in Quebec, however, given the rules set out in the Civil Code of Quebec. In Quebec, the Civil Code, following the civil law tradition, refers to the concept of parental authority to define parents' rights and obligations towards their children. The Code establishes the principle that the father and mother exercise parental authority together when there is a marriage breakdown, separation or divorce. It is in the interests of the federal, provincial and territorial governments to develop co-ordinated reforms to family law that will maintain legislative harmony and that will avoid creating confusion and uncertainty for parents and courts.

The decisions parents make are set out in a written separation agreement or a court order. Most of the time, parents can work out the arrangements by themselves or negotiate an agreement with the help of others, such as lawyers or a mediator. This agreement can then be turned into a written separation agreement or be incorporated into a court order. If parents cannot agree, they can go to court and have a judge decide their parenting arrangements.

The information people provide by answering the questions in this document will guide governments as they look at possible changes to federal, provincial or territorial laws. However, recognizing that changing the law cannot address all the problems facing separating and divorcing parents, this document also asks for views on services that would help parents and children.

Family Law Services

Most people are unfamiliar with legal processes or with the issues that need to be resolved when a couple separates or divorces. Going to court to settle disputes about separation and divorce, including issues about children, can be very stressful for parents and children. The legal process can be lengthy, expensive and confusing.

Across Canada, the provinces and territories offer a range of services for separating and divorcing parents to try to make the family law system easier to understand and use. The services are broad and flexible, in order to help people in a variety of circumstances, and parents can use them before, during and after the court process. The services cover a spectrum, from simple information about family law to specialized assistance to keep family members safe during separation or divorce. For a recent listing of family law services offered across the country, please see An Inventory of Government-Based Services That Support the Making and Enforcement of Custody and Access Decisions.

Many families going through separation and divorce use services to help them resolve their disputes early, quickly and with less conflict. Such services include the following:

Information programs:

programs that teach parents how to promote their children's best interests through co-operation and consultation, when it is safe and positive to do so. The aim of these programs is to help parents understand the demands and challenges of parenting after separation or divorce; to suggest new ways to communicate and resolve disputes; and to suggest appropriate alternatives to the formal court process.

Mediation:

an impartial, professionally trained mediator can help parents who have a relatively equal bargaining position reach a mutually satisfactory agreement on issues affecting the family. Parents who go through mediation still need the help and advice of a lawyer.

Case management:

this approach encourages early settlement of disputes, by having judges and others actively manage the court process to reduce unnecessary delay and expense. This approach also helps parents focus on the issues truly in dispute, while encouraging them to agree on others. This process can involve pre-trial or settlement conferences between the judge and the parents or their lawyers.

This consultation paper asks the public for input on existing family law services so that governments can get a better understanding of the kinds of services people find most helpful when separating or divorcing, and dealing with custody, access and child support issues. The information people provide by answering the questions in this document will provide governments with valuable information as to which services are most useful to families dealing with custody and access issues.

Interjurisdictional Collaboration

The Family Law Committee is a long-standing committee of government officials who are familiar with family law and represent each province and territory and the federal government. It has a federal co-chair and a provincial co-chair and reports to the federal, provincial and territorial deputy ministers responsible for Justice. Where necessary, its work is discussed and approved by deputy ministers and ministers responsible for Justice across Canada.

The Family Law Committee is reviewing legislation and services to find a way to help families work out the best arrangements for children after their parents separate or divorce. It has adopted an integrated, child-focused approach to its work. The Family Law Committee's child custody and access project co-ordinates research, analysis, and policy and program development among federal, provincial and territorial policy advisors and service providers. This project will also look at the recommendations of the Special Joint Committee on Child Custody and Access. (You can read the Committee's report For the Sake of the Children on the parliamentary web site.) The project is to be completed by spring 2002.

Guiding Principles

Representatives of the federal, provincial and territorial governments developed the following principles to guide reforms in the areas of custody, access and child support:

• Ensure that the needs and well-being of children come first.
• Promote an approach that recognizes that no one way of parenting after separation and divorce will be ideal for all children, and that takes into account how children and youth face separation and divorce at different stages of development.
• Support measures that protect children from violence, conflict, abuse and economic hardship.
• Recognize that children and youth benefit from the opportunity to develop and maintain meaningful relationships with both parents, when it is safe and positive to do so.
• Recognize that children and youth benefit from the opportunity to develop and maintain meaningful relationships with their grandparents and other extended-family members, when it is safe and positive to do so.
• Recognize the positive contributions of culture and religion in children's lives.
• Promote non-adversarial dispute-resolution mechanisms and retain court hearings as mechanisms of last resort.
• Provide legislative clarity to the legal responsibilities of caring for children.
• Recognize the overlapping jurisdictions in custody and access matters in Canada, and make efforts to provide co-ordinated and complementary legislation and services.

Governments will assess the suggestions for change that come from these consultations to see whether they are consistent with these principles. However, given the complicated nature of parenting issues, some changes may fit better with some principles than do others. Governments have agreed to work together to address the negative consequences of separation and divorce. Any legislative reforms will be co-ordinated with the laws of all the provinces and territories and must respect the Quebec Civil Code.

About These Consultations

We encourage individuals and groups to read this consultation paper and answer the questions. The paper and the feedback booklet are also available on the Internet.

There will also be consultations with various groups across the country on some of the issues raised in this paper. Some provinces and territories will conduct consultations on other issues that reflect local law and local service priorities.

These consultations result from the ongoing evaluation of the family law system in Canada by the federal, provincial and territorial governments. At the same time, government officials have been looking at how well the new child support guidelines are helping parents, lawyers, judges and others make decisions about child support. Recent research conducted on the governments' behalf provides important background information about many of the issues that are considered in this document, and it forms the basis for some of the proposed options for change. In some sections, you will see a list of the titles of these research papers. Copies of these papers can be requested by calling 1-888-373-2222. You can find a complete list of the research and background papers that have been prepared in the appendices at the end of this document.

About This Document

This document is divided into two parts. The first covers issues related to parenting after separation or divorce, and the second deals with child support. Each part, in turn, contains several sections, each on a specific issue. There is background information and there are questions for you to answer in each section.

How to Provide Your Feedback

Please use the feedback booklet you received with this document to provide your comments. It is recommended that you consult the booklet as you read the information presented here. Each page in the feedback booklet refers to the corresponding page in this document.

For additional copies of this document and the feedback booklet, please call 1-888-373-2222.

Once you have completed the feedback booklet, please return it in the enclosed postage-paid envelope.

Input on custody, access and child support issues is welcome at any time, however we would appreciate that you return your feedback booklet by June 15, 2001.

Why We Want Your Feedback

Your comments will be used to inform the Family Law Committee's discussions on the child custody and access project and will form part of the background to the Report to Parliament that the federal Minister of Justice will table in 2002.

For More Information

For more information about this document and these consultations, or to order copies of the research reports, call 1-888-373-2222. The Department of Justice Canada's web site also contains helpful information on the topics this paper covers. The web site or information line for the government in your province or territory may also be able to provide you with more information.

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