Report on Federal-Provincial-Territorial Consultations on Custody, Access and Child Support in Canada
APPENDIX C: REPORT ON ALBERTA WORKSHOPS
Workshops on custody and access were held in Calgary on June 20, 2001, and in Edmonton on June 21, 2001. In total, 150 participants were involved in the workshops. A list of participating organizations is provided in Tables 1 and 2. In addition to representatives from the various organizations, a number of community residents attended the workshops.
The topic discussed at the Alberta workshops was the roles and responsibilities of parents.
SUMMARY OF THE DISCUSSIONS
ROLES AND RESPONSIBILITIES OF PARENTS
What factors enable good parenting after separation or divorce?
Participants suggested many factors that enable good parenting after separation or divorce.
Education and Skills Development
Participants believed it is necessary and possible to teach parents communication skills. Strong communication skills may help reduce frustration and limit the conflicts that may occur between parents. Communications skills courses may be ongoing and offered at various stages throughout the process of separation or divorce. At the onset of separation or divorce, a communication course can help parents deal with separation- and divorce-specific concerns.
Participants suggested that parents require more education on the impact that separation and divorce have on children. Parents often assume that children will bounce back once the legal matters of divorce are resolved. Although many adults find their post-divorce lives are much better than their pre-divorce lives, many children find this is not the case. It is important for parents to remember that their actions during their divorce can have long-term consequences for their children's well-being. In addition, parents need to be educated about what to tell their children and what to keep between themselves to promote the children's best interests.
Some participants favoured the idea of teaching individuals parenting skills before they became parents to create a stronger understanding of parental responsibilities. Parenting courses should begin in high schools and cover the basics of parental responsibilities and parenting concerns.
Services are available to help educate parents and children, but these services must be advertised so that people are aware of them. The services that are available, such as alternative dispute resolution, can help parents facing difficult and adversarial situations. Such a service may quickly resolve what might otherwise develop into a high conflict situation. In addition, a service to inform individuals of the roles and responsibilities of each parent early on in the separation or divorce proceedings would reduce potential conflict.
Judges should be educated and better informed about child development, the impact of divorce on children, and various family systems. Judges appear to treat many family units and situations as equal, when they should treat each situation as unique, taking into consideration the children's needs and desires. The limited time a judge has to observe each family makes it difficult for him or her to understand each unique situation.
Counselling should be provided because it can increase an individual's self-esteem and help control stress at the outset of family breakdown. Lack of self-esteem and increased stress may be apparent not only in the parents but also in the children. Counselling can facilitate cooperation, improve communication between the parents, and encourage mutual respect. In addition, counselling can assist in controlling anger, encourage anger management, and keep the parents' attention focused on their children's best interests.
Counselling can help parents recognize that although their personal situation is changing, their relationship with their children must stay the same. As new roles and responsibilities for each parent evolve, counselling can help them accept the change and appreciate the new arrangement, thereby creating stability as quickly as possible for the children.
Alternative Dispute Resolution
Many participants believed that mediation was a suitable recommendation. Mediation should occur at the onset of separation or divorce and again after six months to determine whether any conflict has developed in the potential arrangement. Mediation should not be mandatory for a high conflict situation, but should be the first option for the majority of situations.
Equality Between Parents
There should be recognition that each parent has a role to play in the children's lives. Parents should recognize each other as equal in making a valuable contribution to the life of the children. The development of a parenting plan would help each parent see the significance of his or her role. The plan should set out the distribution of time with the children, and encourage the involvement of each parent in decisionmaking when necessary. It is in the best interests of children to spend time with both parents.
Some participants also suggested that parenting arrangements should start with the presumption that parents are equal. These participants suggested that the courts are sometimes gender-biased when determining which parent will receive more responsibility in the parenting arrangement.
Financial accountability was acknowledged as a concern. Participants suggested that support should start immediately, in contrast to the current system in which some time is needed to obtain a support order. The children should be provided with a reasonable standard of living, although this is often difficult to measure and control. The custodial parent should manage the child support in a manner that demonstrates accountability for how the children's money is spent. In many cases, spousal support issues are linked with child support issues, and most participants felt these should be separated.
Flexibility is an important factor in enabling good parenting before and after separation or divorce, and very important in finding solutions acceptable to both parents. Inflexible parents will have difficulty developing parenting solutions, leading potentially to high conflict. Flexibility by both parents should be encouraged in any parenting plan.
Minimize Disruption to Children
Children's lives after parental separation or divorce should remain, as much as possible, the same as it was prior to the separation or divorce. Minimizing changes in children's lives results in stability, which is very important for their well-being. It is important to sustain and encourage relationships with family members and friends. Parents should work with the children and counsellors when necessary to foster strong relationships with extended family members. A parenting plan should recognize the importance of ongoing family relationships and minimal disruption to the children's lives. The plan should be consistent, and adherence to the plan should be enforced.
Listen to Children
It is important to listen to children in an informal environment. When children are heard in court, they are under pressure and in an uncomfortable situation. There should be a child advocate of some kind to represent children. Children will feel more comfortable and able to express their emotions and desires speaking with a third party in a non-court environment. A child advocate should be able to determine whether a child requires counselling, and then help the child get the advice and services he or she needs. The onus should not be on the parents to seek counselling for their children. Children may find it useful to speak with other children, and a child advocate could introduce them to other children who have had similar experiences. These children need a comfortable and accessible place where they can meet to discuss matters of concern.
Another factor that would enable good parenting after separation or divorce is a follow-up program to ensure that the parenting plan is working, communication is amicable, and the best interests of the children are being met. Additional counselling or mediation could be recommended when problems exist that have not been ironed out. It should not be the parent's responsibility to seek this follow-up program or evaluation of the situation. Rather, the follow-up program should be controlled by counsellors or mediators, but not by judges. When a problem is ongoing, then the impact of this situation on the children must be addressed.
When the problem is that a court order is not being followed, then an enforcement procedure must be initiated. There must be consequences for not following court orders.
Separate Parent Issues From Child Issues
It is the role of parents to keep the issues between them separate from issues that affect the children. It is best for children not to become involved in parental disputes. From the onset of the separation or divorce, children may often feel that the conflicts occurred because of something they did. Keeping children separate and not the centre of disputes will lessen the stress on the children.
Issues and concerns relating to child support are a common point of discussion between parents. Children should not become involved in any financial discussions and should not be asked how the other parent is using the money.
Concrete Support System
The development of a concrete support system at the time of separation or divorce would help parents focus on the parenting plan and the best interests of the children. Such a support system could include formal support, such as regular counselling and community services (for example, self-help groups), and informal support, such as that provided by neutral friends or family. Support should be provided as early as possible. The services available in a community should be advertised so people are aware of them and know where to find them.
The timeliness of the process is important to children. Provision of services and support should occur early. Parents should understand the process so that their expectations are not unrealistic. Court proceedings should not be the first step of the divorce process; rather, they should be the last, after all other services have been exhausted. There should be early intervention and support provided to the parents so they can limit conflict and resolve the matter as soon as possible. One suggestion for improving the timeliness of service provision is a 24-hour hotline that parents can phone to seek advice in a timely manner.
Another factor parents considered significant to good parenting after separation or divorce was recognizing specific cultural sensitivities. There are often very few culturally sensitive services in communities, and the lack of multicultural services creates obstacles for some parents who are trying to separate or divorce.
Would the use of terms other than custody and access make a difference in the way post-separation parenting arrangements are determined?
The majority of participants' comments on the continued use of the terms custody and access were negative. Participants said that these terms do the following:
- suggest ownership of the children by the custodial parent;
- treat children as commodities or pawns;
- do not reflect parenting responsibilities;
- set up a power struggle, which creates dominant and subservient roles;
- prohibit flexibility;
- do not define what parenting is;
- create adversaries, making custody the goal;
- encourage the non-custodial parent to abdicate responsibilities;
- create an overall bad feeling;
- are emotionally charged;
- ignore the rights of the children to maintain relationships with both parents;
- create an imbalance in parental responsibilities;
- promote unilateral decisionmaking; and
- restrict the access parent from participating in decisionmaking and the ongoing parenting of the children.
All of these comments suggest that the current terminology focuses on the rights of the parents rather than on the needs of the children.
Other participants supported maintaining the current terms, suggesting that changing the terminology would not make a difference. The current terms are widely recognized and would continue to be used in everyday language anyway because they are understood.
What are the advantages and disadvantages of the proposed terminology options?
Keep the current legislative terminology.
Some participants believed that there were advantages to keeping the current terminology. It is plain language that is understood throughout society and the legal system. Redefining the words would cause confusion without removing the problematic connotations of the definitions. The definitions could be refined to focus on the children's interests and rights. They are flexible terms that can be adapted to individual parenting arrangements. For some participants, there is a clear definition for the terms. With this option, access would continue to be described as a right of parenting, and custody as the responsibilities of parenting.
Option 1 would be more workable if information were provided to parents to explain the various types of parental arrangements, so that parents take less offence at the parental responsibilities assigned. Parents must realize that if they could cooperate they could create their own parenting plan and use their preferred terminology to explain the parenting roles and responsibilities of both parents, thus eliminating the terms custody and access.
Participants suggested many disadvantages to keeping the current terminology. They said there is too much history and too many negative connotations attached to the terms. It was suggested that the words cannot foster a change in attitude, and that they create adversaries and a win-lose or all-or-nothing division of power, which precipitates power struggles between the parents. The terminology is not considered flexible enough for all parental situations. It is not a plain language definition because the terms are used in so many situations to imply different arrangements. The terminology does not focus enough on the possibility of equal responsibilities and a co-parenting arrangement, which some feel would be best for the children.
As stated earlier, some participants said that the terms are not in the best interests of the children because they imply ownership of the children by the custodial parent.
In regard to option 1, participants suggested that the terminology must reflect the importance of the involvement of parents, extended family and the community in children's lives. Some participants said that the Divorce Act should affirm that, in most situations, parents are equal in theory and thus equally suitable as parents. The following were additional comments regarding option 1:
- it should reflect the children's need for supportive relationships with appropriate adults;
- it should reflect children as human beings, not property;
- it should promote a reduction of sexism in custody decisions;
- it should communicate the responsibility of parents to nurture the children's relationship with the other parent and extended family; and
- it is not workable.
Clarify the current legislative terminology: define custody broadly.
Some participants said that maintaining the existing terms, but defining them differently, might create a broad definition that would be more acceptable. The new broad definition would be more flexible and able to accommodate unique parental situations. It was suggested that the new definition must also include a description of parental responsibilities (similar to option 3) and the possible roles of parents. This would allow each parent to define his or her contribution to the welfare of the children if so desired. In addition, parents should have the opportunity to submit a list of responsibilities that they are willing to assume.
Some participants said that the broad definition of custody would be too ambiguous. They felt that such a definition would continue to trigger power struggles between parents, create adversarial situations and imply ownership of the children. The broad terminology proposed in option 2 does not highlight the fact that each parent has a significant ongoing role in the children's lives. Participants questioned the wisdom of eliminating the simplicity of the terms custody and access, only to replace them with the complexity of new wording.
Participants made the following additional comments about option 2:
- The language needs to change.
- The parents' role must be clearly defined no matter what the terminology.
- If the language were redefined, people would be confused and continue to attribute the old connotations to the new terms.
- There should be flexibility in the terminology suggested.
- The word custody should be broken down further into custody and additional custody, reserving the term access for situations when a parent is unfit to have additional custody (e.g. in family violence situations).
Clarify the current legislative terminology: define custody narrowly and introduce the new term and concept of parental responsibility.
Some participants suggested that introducing the new term parental responsibility would create a built-in flexibility, allow parents the right to develop their own language to describe their parenting arrangement, and move away from a focus on parental rights. Participants said that putting emphasis on parental responsibility prevents children from having to choose one primary parent. This encourages parents to divide parenting time and parenting responsibilities among themselves, in line with their particular situation. These participants said they believed this option would be successful in both consensual and disputed situations.
Some participants believed that option 3 would be acceptable in the following circumstances:
- if there were an education process for parents explaining parental responsibilities and the importance of parenting plans;
- if there were annotated examples of successful parenting plans; and
- if parents cooperated in creating a parenting plan and recognized distinct parental responsibilities.
In contrast, participants said that the narrowly defined term custody would still portray ownership, imply imbalance and denote a winner and a loser. This negative word is not necessary to define the children's residence and should be removed from the legislative terminology. The concept of custody can be incorporated into the term parental responsibility.
Furthermore, the term parental responsibility would not be useful if the parents were not agreeable, and it would create conflict and disagreement about what would be best for the children. Some participants said that keeping the word custody in the terminology denotes a primary home for the children and that the parents do not share the responsibilities for the children. These participants said that children ultimately need one primary caregiver to create stability. Some participants said that option 3 would not be workable when distance was a factor, because sharing parenting responsibilities would be difficult when the parents live in different parts of the country.
Participants provided additional comments on option 3:
- Familiarizing parents with these words would make them non-threatening; therefore they must be clearly defined.
- Parents and children should have the same understanding of the responsibilities.
- A practical understanding of the consequences of assigning parenting responsibilities must be provided.
- Equal responsibilities should be an option, depending on the circumstances.
- Children should be involved in the decisionmaking.
- More support is needed regardless of the terminology suggested.
Replace the current legislative terminology: introduce the new term and concept of parental responsibility.
Participants identified many advantages of this option. Some said that adopting this terminology in the legislation would not require parenting responsibility to be divided equally. They felt it focuses on the responsibilities of parents as opposed to the rights of parents, and by removing the words custody and access, removes all their negative connotations. This option would encourage mediation as an effective means of developing a parenting plan and encourage communication between parents. It would minimize the amount of contact required in high conflict situations, and thus work for both consensual and disputed cases.
It was suggested by some that parental responsibility and parenting plans would allow responsibilities to be allocated on the basis of the best interests of the child and encourage parents to divide parental responsibility between them, using the court as a last resort. Parental responsibility empowers both parents in their roles, encourages flexibility, recognizes different parenting styles, and has the capacity for growth and change.
Furthermore, some participants said that parental responsibility does not require responsibilities to be equal, considers the responsibilities and not the rights of parents, adequately addresses situations in which parents do not want to be considered equal, and relieves parents of their responsibility to cooperate because it is in the best interests of the children.
The participants opposed to option 4 suggested some disadvantages. It was suggested that additional pressure would be placed on the courts in assigning responsibilities and determining what is best for the children, thus making the process slow and difficult in complicated situations and putting too much pressure on judges. Also, the introduction of new terminology would create confusion, require all parents to be educated about the terminology, and only replace old terminology with something just as difficult to understand.
Some participants argued that the concept of parental responsibility and the need to create a parenting plan rely too much on parents formulating an agreement, do not encourage cooperation and may create exclusive responsibilities that are not workable.
In addition to the advantages and disadvantages of replacing the current terminology and introducing the new term parental responsibility discussed above, participants suggested the following:
- Placing responsibility on judges and courts should be a last resort.
- If some parental responsibilities were not discussed or included in the arrangement, conflicts would be created when they do arise.
- Judges should have lists, models and definitions to help them make decisions.
- There is the need for affordable, workable, accessible and prompt recourse to ensure compliance with parental responsibility orders.
Replace the current legislative terminology: introduce the new term and concept of shared parenting.
Some participants suggested many advantages to replacing the current terminology and introducing the term and concept of shared parenting. These participants said that the term shared parenting reinforces the responsibility of parents. When desirable, it allows one parent to be more responsible than the other, but under most circumstances would not allow one parent to have total control over the children. The concept of shared parenting provides parents with ownership of the parenting process, which would increase the chances of successful post-divorce parenting. The parents could create a framework that would allow them both to determine the scope and nature of their parental responsibilities. Shared parenting also provides flexibility for the future, and encourages ongoing collaboration.
The concept of shared parenting recognizes that children are not property, allows both parents to make decisions about their children's lives, and enables the children to have regular interaction with both parents and access to the extended family.
Some participants identified disadvantages to replacing the current terminology and introducing the term and concept of shared parenting. Some said that the term shared parenting was not workable because it creates unrealistic assumptions. Moreover, in some situations, the extensive interaction between parents that it requires is not possible. Shared parenting cannot be mandated by law when parents do not wish to participate in parenting, and it will not work when both parents do not participate. Other disadvantages are that this concept does not emphasize children's rights, and that not all aspects of parenting can or should be shared.
In addition to the advantages and disadvantages of replacing the current terminology and introducing the term and concept of shared parenting mentioned above, participants suggested the following:
- There should be screening for family violence.
- The terminology should be more positively worded.
- Shared parenting does not necessarily mean equal parenting or equal residence.
- The term should include the concept of equal shared parenting or shared and equal parenting.
- The definition should include what is not in the best interests of the child.
- Counselling should be accessible, and the children's needs should be considered.
- Models should be prepared that parents can choose and build upon.
Organizations Represented at the Calgary Workshop
- Association of Collaborative Family Lawyers
- Balbi and Company
- Blake, Cassels & Graydon
- Calgary Legal Guidance
- Calgary Police Service
- Canadian Bar Association, Family Law Section
- Canadian Grandparents Rights Association
- CARP (formerly the Canadian Association of Retired Persons)
- Community Strategies
- Duncan & Craig
- Faber Gurevitch Bickman
- FAIR Society
- Family and Community Support Services
- Family Law Information Centre
- Family Mediation Services
- Family of Men Support Society
- Fong, Ailon & Norrie
- Foster, Wise & Walden
- Gaetano & Associates
- Impacts Consulting Ltd.
- Law Society of Alberta
- McConnell, MacInnes, Graham
- MESA (Men's Educational Support Association)
- Mid Sun (Calgary) Youth Justice Committee
- Miywasin Justice Program
- Murray Silver Counselling Ltd.
- University of Calgary
- Van, Harten, O'Gorman, Foster
- Women Looking Forward
- Youth Criminal Defence Office
Organizations Represented at the Edmonton Workshop
- Alberta Children's Services
- Aboriginal Consulting Services
- AHRE, Central Region
- Alberta Civil Trial Lawyers Association
- Alberta Council of Women's Shelters
- Alberta Council on Aging
- Alberta Hospital
- Alberta Law Reform Institute
- Alexander Youth Justice Committee
- Broda & Co.
- City of Spruce Grove
- Correctional Services Division
- Court of Queen's Bench
- Edmonton Local Council of Women
- Edmonton Social Planning Council
- Edmonton Women's Shelter Ltd.
- Embury McFayden & Wilson
- Enoch Youth Justice Committee
- Equitable Child Maintenance and Access Society
- Family and Youth Court
- Family Law Information Centre
- Family Mediation Services
- Grandparents Unlimited
- High Prairie Youth Justice Committee
- Human Resources and Employment
- Jiwaji Law Office
- Kochee Men Young
- Leduc County of Family and Community Services
- M.E.R.G.E. (Movement for the Establishment of Real Gender Equality)
- Maintenance Enforcement
- Martinez Meunier Scholter
- Men's Education Network
- Morinville Youth Justice Committee
- Native Counselling Services of Alberta
- Orphaned Grandparents Association
- Poverty in Action
- Sexual Assault Centre of Edmonton
- Special Education, Edmonton School Board
- Strategic Initiatives
- Strathcona County Family
- Town of Barrhead
- Town of Bon Accord
- Town of Bonnyville
- Town of Vulcan
- University of Alberta
- West Yellowhead Child and Family Services
- West Yellowhead Law Office
- Women's Law Forum
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