Report on Federal-Provincial-Territorial Consultations on Custody, Access and Child Support in Canada
APPENDIX C: REPORT ON BRITISH COLUMBIA WORKSHOPS
Six workshops were held in British Columbia on custody and access: in Vancouver on June 4, 2001, New Westminster on June 5, 2001, Abbotsford on June 6, 2001, Prince George on June 11, 2001, Kelowna on June 12, 2001, and Victoria on June 13, 2001. Approximately 97 participants attended the workshops. Table 1 lists the participating organizations.
The following topics were discussed at the British Columbia workshops:
- roles and responsibilities of parents;
- family violence; and
- meeting access responsibilities.
SUMMARY OF THE DISCUSSIONS
ROLES AND RESPONSIBILITIES OF PARENTS
What factors enable good parenting after separation and divorce?
The participants generally agreed that the roles and responsibilities of parents are to provide love, support, security and safety for children. Separated parents have the same responsibilities as they did when the family was intact. However, they might meet these responsibilities in a different way. Most people felt that both parents need to play a substantial role in the growth, development and support of their children.
For parents to fulfil their roles and responsibilities, they need to define and agree on their respective roles from the outset of the separation and divorce. Participants suggested that the terminology and range of responsibilities used in parenting plans must be clearly defined in legislation.
The climate should be one of "no fear" for the children or caregivers. The safety of the children from any form of violence should be the overriding priority.
Participants suggested that training is necessary for parents to learn how to recognize children's basic needs and to develop stronger parenting skills. Parents should have pre-marriage courses describing the roles and responsibilities of effective parents. The courses should emphasize communication skills, cooperation and anger management. In addition, courses should be available for separating parents during transition stages in their relationship.
Parents must recognize that cooperation is necessary if they are to focus on the best interests of their children. Cooperation should be encouraged while creating a parenting plan, which will allow each parent to understand and value the contributions both parents make to the children and their importance in the children's lives.
Recognizing the Children's Needs
Parents must recognize the needs of their children and always consider the potential impact of their actions on the children's welfare. Workshop participants made many suggestions about what is important for children. The children's best interests depend on many things:
- parents putting their emotions aside and considering the children;
- children having the support of extended family members;
- stability in the children's lives;
- open communication between parents and children;
- no presence of fear;
- an absence of anger in the relationships; and
- children feeling accepted by both parents.
What suggestions do you have for improving awareness of the services?
Participants made many suggestions for improving awareness of services and the types of services provided. Participants suggested offering awareness programs through work and schools, so information would be readily available, and producing advertisements and videos about the available services. It was suggested that advertisements be placed in central locations, such as supermarkets and community centres. The advertisements, videos and pamphlets must reflect cultural variations and sensitivities. In addition, professionals, such as doctors, lawyers and teachers, must be familiar with all available services so that they can help people seeking advice.
Participants suggested that services be expanded to include a full range of programs for men, women, children and extended families.
How could these services be made more helpful to parents?
Participants had many suggestions for making services more helpful to parents who are trying to agree on how they will care for their children after their separation or divorce. Participants strongly suggested the need for more education and improved services for parents focusing on children's needs.
Services and Supports Needed
Participants noted that considerable support is needed for both separating and divorcing parents and for children. Concern was voiced about the role and operation of the current adversarial court system, which seems to focus on parents' rights rather than their obligations to their children.
Many participants noted that some services are available but are not well known or advertised. Participants also said that these services are quite fragmented, with no particular way to find out what services exist and how to access them. Several participants stressed the lack of services for men, who could benefit from counselling and other transition assistance during the separation process.
Others pointed out the need for materials and information to be in simple language, and for services tailored to various cultures and languages. Participants considered legal aid and family law drop-in centres to be helpful but in need of expansion.
Some participants said that the schools should offer courses that deal with parenting. It was felt that classes on how to build healthy families, how to communicate and how to resolve disputes would provide long-term benefit. One participant noted that each dollar spent on prevention saves multiple dollars in intervention during a family break-up.
Courses on parenting after separation should be mandatory for both parents. These would ensure that parents understand and acknowledge the interests of their children. Participants argued that when parents end up going to court as a result of a family break-up, formal reports and assessments should be made available to judges to help them determine what kind of relationship would be in the best interests of the children.
Some participants suggested that mediation should be mandatory for all separating or divorcing parents. Other participants said it should remain optional, and that a professional or the parents should decide whether the service would be helpful in each unique situation. Strong emphasis was placed on creating parenting plans that are based on the children's needs.
The participants also made the following suggestions for improving services;
- The federal and provincial court systems are in competition, and so more consistency and communication between the levels of government would be helpful.
- Family justice counsellors need to be more readily available to assist.
- Services must be geared to men, women and children.
- Services must be sensitive to cultural differences and recognize all languages that may be required.
- Legislation must be comprehensive and easy for all individuals to follow.
- Early intervention services should be available.
- Services must provide information on alternatives to the courts (for example, mediation).
- Initial assessments and mandatory reassessments are required to determine that the children's best interests are the main concern.
- Early detection of family violence situations should occur.
- There should be specialized family court judges who are very familiar with the legislative and non-legislative options.
- There should be a place to provide a comprehensive, multidisciplinary assessment of high conflict situations.
- There should be a safe place for children to voice their opinions.
- There should be a child advocate to speak for children.
- There should be more resource centres that can provide a safe place, support and advice.
Would terms other than custody and access make a difference in the way post-separation parenting arrangements are determined?
Many participants said that the words custody and access exacerbate the tensions occurring during a separation or divorce and emphasize the winner-loser nature of the situation. The vast majority of participants felt that these terms were no longer appropriate and should be replaced with a more neutral term such as parental responsibility. This new wording would shift emphasis from the interests of parents to their responsibilities to look after the interests of their children. Some participants said that in the absence of physical danger or violence, the concept of shared parenting offers the best opportunity for parents to work out a parenting plan in the interests of their children. Most of these participants represented fathers' organizations. Others participants said that it was important for parenting roles to focus on caregiving and guardianship, recognizing that over time the roles and responsibilities of the parents will change in response to the changing needs of the children.
Many participants commented that parents should use the court system only as a last resort, and that legislation should require parents to attend mediation or other alternative dispute resolution programs to work out a parenting plan in the best interests of their children before taking their case to court.
Participants made the following specific comments on the proposed terminology options.
Keep the current legislative terminology.
Many participants said that the current terminology must be changed because the word custody denotes ownership and the term access denotes visitation. Others said that if definitions of these terms were to be changed, they would have to be narrowed so that people could understand and agree on what they mean; therefore, terminology should not be changed until definitions and concepts are agreed upon.
Clarify the current legislative terminology: define custody broadly.
Some participants said that this option adequately covered many parenting situations. Clarifying the current terminology would reduce some confusion, and by defining custody broadly, this option reduces some of the win-lose characteristics previously associated with this term.
Clarify the current legislative terminology: define custody narrowly and introduce the new term and concept of parental responsibility.
Some participants said that option 3 would be best. They suggested that the term guardianship be introduced. The differences between guardianship and custody could be defined, and the term access reserved for when a parent's rights have been reduced because of violent or offensive behaviour.
Replace the current legislative terminology: introduce the new term and concept of parental responsibility.
Some participants preferred option 4, giving the following reasons:
- It allows for shared decisionmaking.
- It uses the term parental responsibility, which reflects the responsibilities of the parents to their children.
- It allows for flexibility to address unique situations.
- It recognizes the importance of parenting responsibilities as opposed to parents' rights.
- It allows for parents to be accountable for their actions or lack thereof.
Participants also suggested that the term parental responsibility should replace the term access and that primary residence should replace custody.
Replace the current legislative terminology: introduce the new term and concept of shared parenting.
Some participants preferred option 5. They said that shared parenting and joint custody should be presumed unless there is reason to believe that one parent is less suitable than the other. The concept of shared parenting allows the presumption of equal parenting. Mandatory mediation could be encouraged with the goal of creating a parenting plan. Participants also suggested that there should be special magistrates or judges who take a child-centred and gender-neutral approach when deciding on outstanding issues or proposed changes to the parenting plan.
Other participants said that shared parenting is an unrealistic term that would cause parents to insist on equal parenting roles even in high conflict situations.
Additional Comments on Terminology in the Legislation
Participants made the following additional comments:
- Both parents need the opportunity to love, rear and nurture their children.
- Denial of access is a form of irresponsibility.
- Relationships should be carefully examined and family situations assessed before determining the custody order.
- Interim agreements should be developed as soon as possible and modified when situations are resolved.
- Judges' discretion should be limited.
- The safety of women, children and men must be ensured.
- Children's relationships with their extended family should be protected and encouraged.
- There must be continuity in the services offered by the provinces and territories.
- The court system should be a last resort.
- Mediation should not be required when violence is an issue or possibility.
- All situations are unique so legislation must be flexible.
What are children's needs when their parent's separate?
Participants noted that children need emotional support and circumstances in which they feel secure so they can retain or build their self-esteem. Several participants also commented that children do not currently have a voice in the separation process and said that, when possible, those interested should be able to express their needs and expectations.
Many participants raised the point that children should not be pawns in the separation or divorce. Furthermore, children should not be put in the position of having to manage communication between the two parents. Significant effort should go into developing a parenting plan that will give children stability, consistency and predictability.
Most participants agreed that children's best interests are served when they have sufficient parenting time with both parents. One parent should not alienate the children from the other. The focus should be instead on parental responsibility and ensuring that both parents have equal access or as much access as is possible through the system. This is understood to refer to situations in which there is no clear evidence of danger or violence.
Some participants from men's groups said that the best interests of children would be met by implementing the 48 recommendations of the Special Joint Committee on Child Custody and Access.
In the discussion on family violence, almost all participants agreed that demonstrated physical violence and the continued threat of such violence should not be tolerated, and should be a factor in decisions about the best interests of children. However, there was not full agreement on what other forms of violence, besides physical violence, should be considered when making these decisions. Some participants questioned whether there was a workable definition of family violence, and whether it should include emotional and mental abuse. It was said that any physical violence should clearly not be tolerated, but that dealing with the more subtle forms of violence between parents is more difficult.
Participants also noted that violence is not a gender issue, and that there are various types and levels of violence. Some participants said that violence involves issues of power and influence. Some noted that some divorce proceedings have to deal with false allegations, and that these are a form of violence intended to alienate children from a parent. Others noted that there are no easy answers to this emotionally complex question, and that there can be high levels of conflict without physical violence.
Services and Supports Needed
To deal with the effect of family violence, participants said that there needed to be considerable education and services for parents and children. Many participants said that there should be education for professionals in the legal system as well, so that they can better understand what happens to children who witness abuse and experience post-traumatic stress.
Most participants said that judges need to take family violence into account when making decisions, but also that the role of the courts should be minimized and that solutions in the best interests of children be worked out through alternative dispute resolution mechanisms. Others added that not only should judges be trained to understand the nature and effects of abuse and to take family violence into account, but also that evaluation tools should be developed focusing on the potential for recurring offences.
Several participants noted the difficulty in setting out a standard method for assessing violence because of the different circumstances in each family, which must be assessed case-by-case to make an appropriate judgment.
There were suggestions that family court judges should also be aware of any criminal charges, and that these must be considered in the overall determination of the best interests of children. Child advocates should also play a significant role in ensuring that the best interests of children are taken into account.
Participants agreed that mediation is an appropriate mechanism to deal with divorce and separation provided that no violence, intimidation or harassment has been a part of the post-divorce relationship. If there were, it would be necessary to develop a parenting plan with input from the court.
MEETING ACCESS RESPONSIBILITIES
The discussion on access in the best interests of children identified three problem areas:
- not using or living up to access opportunities and responsibilities;
- wanting more access and not being able to obtain it; and
- withholding access.
Some participants argued strongly that the word access should be eliminated and that the importance of both parents to children's well-being be reinforced. Others noted that the word access implies visitor rather than parent and, therefore, parental responsibility should replace custody and access. Many pointed out that a parenting plan is needed. These plans may vary with the ages of the children and their particular circumstances, but should always include an agreement about roles and responsibilities based on the principles of shared parenting.
Supervised Access and Resource Centres
Some participants said that there should be many more structured opportunities for supervised access, since often there is no formal, neutral place where children can meet with the non-custodial parent. This is particularly important when violence is a concern. Others noted that children need to have safe and healthy access to both parents, and that this requires support for non-custodial parents in the form of parenting courses so that they can understand their changing roles and relationships and the responsibilities that they have to carry out.
Several participants made reference to the Alberta model, which they described in positive terms for how it deals with parenting responsibilities. Still others noted that courts should not make access orders that are inconsistent with emergency protection orders and issues emerging out of the criminal court system. The safety of children, their supervisors and the custodial parent is paramount.
Interests of the Children
Participants noted the importance of recognizing the entitlement of children to the parents' time. Developing parenting plans that acknowledge this entitlement is critical, and doing so through alternative dispute resolution mechanisms is preferable. Some participants said that access is not the right of the parents; rather, it is the right of the children. A mandatory parenting plan, such as is required in the State of Washington, should also be considered.
With respect to access after separation and divorce, many participants noted the importance of extended family: not only parents should have access, but also grandparents, siblings and other relatives. As well, children should have a say in the access relationship-when they want to see or need to see their parents.
Many participants supported the concept of a parenting plan, particularly a plan that does not involve going to court. Developing such a plan would be less expensive than going to court, and potentially would reduce the acrimony that frequently intensifies during the court process. The parenting plan should be flexible so that it can be modified as conditions change and as the children develop and grow. This flexible system should be reviewed regularly, possibly every two or three years, and on request of the children or either parent.
Some participants noted that the court system is really a blunt instrument that is not designed for family problems or conflicts. An alternative approach might be "special masters," individuals who can deal with family issues but practise outside the court. Participants also said that separating and divorcing parents often have their own psychological and emotional problems that need to be addressed through responsive services, training and orientation courses.
Participants said that when a non-custodial parent does not follow through on access, this should be considered a form of child abuse. Non-compliance by custodial parents should also be censured. Both of these circumstances could or should lead to a change in the custodial order.
Some participants said that access agreements are not systematically or fairly applied. Maintenance orders seem to be enforced, but access orders are not. Some participants noted that access has to do with interpersonal and psychological relationships and should not be tied to maintenance.
There was considerable agreement that both parents need to be accountable for meeting their access and/or parenting responsibilities. The court system may have to develop a plan for access and enforce it in high conflict situations, which include violence and abuse. Some participants argued that the parents should draw up the plan before the separation or divorce is finalized. Others noted that seeing a family justice counsellor when developing such a plan should be mandatory. Generally, there was considerable support for the concept of a parenting plan and parenting responsibilities rather than custody and access.
Organizations Represented at the British Columbia Workshops
- Abbotsford Community Legal Services Society
- Abbotsford Women's Support Services
- Ann Davis Transition Society
- Barrister and Solicitor (2)
- Battered Women's Support Services
- B.C. Association of Clinical Counsellors
- B.C. Association of Social Workers, Child and Family Therapy
- B.C. Association of Social Workers, Okanagan Branch President
- B.C. Association of Social Workers, Okanagan Branch Representative
- B.C. Men's Resource Centre
- B.C./Yukon Society of Transition Houses
- Burnaby/New Westminster Family Justice Centre
- Cameron Kenney
- Canadian Coalition for Parental Rights
- Canadian Grandparents Rights Association
- Cariboo Friendship Society
- Central Okanagan Elizabeth Fry Society
- Central Okanagan Emergency Shelter Society
- Chetwynd Women's Resource Society
- Dewar & Co., Alkali Ranch
- Elizabeth Fry Society
- East Fraser Family Justice Centre
- Equal Parenting Group
- Families First Resources Society
- Family Education and Support Centre
- Family Law Sub-section, Okanagan, Kendall, Penty & Co.
- Family Law Sub-section, Vancouver, Canadian Bar Association
- Fathers Advocating Children's Equality
- Fraserside Community Services, Supervised Access Services
- Georgialee A. Lang and Associates
- Grandparents Raising Grandchildren
- Immigrant and Multicultural Services Society of Prince George
- Ishtar Transition House Society
- Justice Centre
- Kelowna Family Justice Centre
- Kelowna Family Services Centre Society
- Kids Turn of Greater Vancouver
- Law Courts Education Society of B.C.
- Legal Services Society
- LSS Family Law Clinic
- McAfee, Hattori & Shaw
- Mission Community Services
- Mom's House, Dad's House
- Munroe House
- Non-Custodial Parents Association
- North Okanagan Youth and Family Services Society
- Northern/Interior Family
- Oakhill Counselling and Mediation Services
- Parent and Child Advocacy Coalition
- Parents of Broken Families, Kamloops
- Penticton and District Community Services Society
- Penticton and Area Women's Centre Society
- Penticton and District Multicultural Society
- Phoenix Transition Society
- Port Coquitlam Area Women's Centre
- Prince George and District Elizabeth Fry Society
- Prince George Native Friendship Centre
- Progressive Intercultural Community Services Society
- Quesnel Women's Resource Centre
- School of Social Work and Family Studies, University of British Columbia
- Shazz Training and Counselling
- South Surrey White Rock Women's Place
- South Vancouver Neighbourhood House
- Supervised Access and Access Exchange Program, Elizabeth Fry Society, Kamloops
- University of Northern British Columbia
- Vancouver and Lower Mainland Multicultural Family Support Services Society
- Vancouver Community Mental Health
- Vancouver Custody and Access Support and Advocacy
- Vancouver Family Justice Centre
- Vancouver Rape Relief and Women's Centre
- Vernon and District Immigrant Services Society
- Westminster Community Law Clinic
- Wingham Kinsman Label, Barristers and Solicitors
- Women In Action
- Xohlmet Transition Society
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