Report on Federal-Provincial-Territorial Consultations on Custody, Access and Child Support in Canada
APPENDIX C: REPORT ON NEW BRUNSWICK WORKSHOPS
Workshops on custody and access were held in Moncton on June 20, 2001, and Fredericton on June 22, 2001. In total, 17 participants were involved in the workshops. A list of all participants is provided in tables 1 and 2.
The following topics were discussed:
- best interests of children;
- roles and responsibilities of parents; and
- family violence.
SUMMARY OF THE DISCUSSIONS
BEST INTERESTS OF CHILDREN
What are children's needs when their parents separate?
Participants felt that children's needs do not change very much through the process of separation and divorce. Children need to be happy, healthy and safe, and, among other things, to know that they will continue to have their physical needs met and be kept safe from violence. They need to know that both their parents love and respect them, that they will continue to see both parents, and that they are not to blame for the separation or divorce. Children need continuity and stability in their daily routine, standard of living and family, as well as predictability in what will happen to them. Children also need to continue to connect with their culture. Participants also felt that children should not be forced to grow up too soon, to take on adult responsibilities or become the "repair person" for their parents' relationship.
Participants felt that children need to have both parents in their lives. The parents should be responsible, provide a stable, calm environment that is free from conflict, and not use children as pawns against one another or as negotiation tools. Children should also continue their other non-parental relationships, including those with grandparents and other significant adults.
In terms of outside intervention, children need help to live through and process the changes they are experiencing. Self-help groups for children might help to do this by letting children see that they are not alone in their experiences. Parents should be open with their children, allowing them to express their feelings about the situation, even though this may be difficult for parents to hear. Children's voices must be heard during the separation or divorce. One suggestion for accomplishing this was to use a child advocate. Although children need to be informed about the situation and their desires need to be taken into account, participants felt that children should not be placed in the position of decisionmaker.
Given the changing nature of the family, participants said that the definition of best interests of the child must be clearer and brought up to date, since it might otherwise be interpreted in a stereotypical and dangerous way. Participants also said that the children have most likely been aware of problems in their parents' relationship for some time before the separation, and that it would be difficult for them to believe that a "perfect" family relationship can be re-established.
Codifying the Best Interests of Children
During the discussion of whether codification is a good idea, participants said that the question is largely irrelevant, since there were very few applications made under the Divorce Act, and most questions about the children are settled before the actual divorce. Furthermore, provincial legislation in New Brunswick already identifies these factors, and they are weighed by judges during the decisionmaking process. Other participants felt that because provincial legislation identified some factors, it is essential that the federal legislation do the same in order to harmonize the two. It was also felt that codifying only certain factors might be counterproductive, as it would limit judges' discretion when dealing with the unique situations of divorcing couples.
Factors to Include
Participants said the law should state that children have a right to both parents. They also felt the parenting plan and the children's development should be taken into consideration, along with the children's ages, education and level of emotional development. Some participants suggested that input from members of the extended family should also be sought, since they play an important role in stabilizing the children's environment. Parents' support for the children's special talents and aptitudes should also be a factor.
Participants said that the factor
"healthy and positive relation to both parents" needed to be clarified, and that violence should be clearly addressed in the law. Some participants felt that the "maximum contact" provision should be overridden in cases of violence. Other participants said that, when a violent situation exists, an exclusive part of the law should address children's needs, rather than the section of the law that applies to all other situations. Violence would be flagged in the list of factors as a signal to apply the specific section dealing with that issue.
Type of Parenting
Participants had varying opinions on what type of parenting should be identified in the law. Some expressed concerns about making shared parenting the default. Others said that there should be a presumption of shared responsibility for the children unless violence is a factor, because most separating and divorcing parents are not violent. Participants felt that the parents' behaviour needs to be taken into account in decisions on the type of parenting arrangement that would best meet the needs of children.
Representation of Children
Some participants felt that children should be represented in court by a lawyer to ensure that their interests are represented during the process. However, participants emphasized that children should not be asked to witness or take part in court proceedings, as this would mean that they would have to support one parent or the other.
ROLES AND RESPONSIBILITIES OF PARENTS
What factors enable good parenting after separation or divorce?
Participants found that, since children will continue to have much the same needs as they did before the separation or divorce, many of the parents' roles and responsibilities will continue as before. That said, participants also recognized that depending on the post-divorce parenting arrangement one or the other of the parents might need to learn new skills in order to fulfil his or her roles and responsibilities.
Participants felt that the parents' ultimate responsibility was to keep their children safe from the effects of conflict and violence. Parents need to learn to cooperate in their parenting, communicate effectively with one another, and keep the peace. Participants also pointed out, however, that it is often difficult for parents to act with maturity during the process of separation and divorce.
Achieving and Respecting Agreements
Participants said that parents should be responsible for coming to their own agreement whenever possible, and acknowledged that services should be provided to help them do so. Some participants said that mediation would be useful, while others felt that mediation is unsuitable for high conflict divorces because they are inherently conflictual and difficult to resolve to both parents' satisfaction. Participants felt that an open judiciary system that was easily accessible and came to a decision rapidly would help parents fulfil their roles and responsibilities, although they emphasized that the state should be the arbiter of last resort.
Some participants said that respecting access agreements was fundamental. Others said that contact with children is of little value when it is done to punish the other parent or for a financial advantage (such as a reduction in child support payments).
Improvements to Services
- Participants said that parents going through a divorce or separation needed to learn how to parent effectively after the divorce, and that parenting skills classes would be helpful. These courses should continue throughout the divorce and afterwards, and not be just a one time course. It was suggested that the program "For the Sake of the Children" is a useful educational opportunity for parents, and that the media could play a useful educational role. Participants felt that judges and lawyers could also benefit from more education in family law and even in psychology.
- Other Services
- In terms of improving the relationship between the two parents and between the parents and their children, participants felt that both mediation and counselling services should be made available to parents and children.
- Participants also identified legal services that should be made available. These included law information services, advocacy services (for children) and child assessment services, and centres for supervised access.
- Characteristics of Services
- During the discussion on services, participants developed a set of characteristics that they felt that all services available to parents and children during separation and divorce should embody. Services should be timely and quick off the mark, because early intervention is crucial and waiting lists should be reduced. Services should be delivered equally, no matter what the parenting arrangement. Participants brought up difficulties with medicare cards and report cards (both of which can only be issued to one of the two parents), and also with other health plans (one parent may be enrolled in the plan and be reimbursed for medical expenses that were actually incurred by the other parent).
When discussing what messages need to be contained in the wording of the law, participants felt that an important goal of the family law system should be to take pressure off parents and minimize the potential for conflict. Participants said that services should be clearly available to both parents, regardless of how they are provided (privately or publicly). Participants also highlighted the need for rapid response and early intervention when there is conflict, for example, over access in emergency situations.
In addition, participants said it was important to send the message that children are Canada's primary resource and that they need access to the necessary programs and resources.
Looking at the Law
When examining the options listed in the discussion guide, participants expressed varying opinions on the merits and problems of each.
- Custody and Access
- With regard to the terms custody and access, some participants said these words interfere with parents trying to develop their own arrangements to suit their unique situation. Other participants said that this terminology presumes that there will be a custodial and non-custodial parent, rather than starting with an assumption of equality between the parents. Participants also pointed out that the French wording (droit de visite) implies that the parent or children are merely visitors in the life of the other, and has a much narrower meaning than the English term access. Some participants supported continued use of the terms custody and access, particularly in situations of family violence or when one parent has abdicated his or her parental responsibilities.
- Parental Responsibility
- Participants felt that the term parental responsibility should be defined clearly if it is to be used; however, it would clarify the issue of the responsibilities of both parents. Some participants felt that option 3 would be best, as it reduces the meaning of custody solely to the physical residence of the child, while considering all other factors parental responsibilities.
- Shared Parenting
- Some participants said that the term shared parenting might be confusing. Others felt that it was the best option, because it clarifies that something is expected from both parents and therefore moves away from a winner-loser situation.
- Other Issues
- Regardless of the terminology to be used, participants felt it was dangerous to make assumptions about the
"ideal"post-divorce parenting arrangement. In some cases both parents will not want an equal share in the parenting responsibilities, and they usually did not share parenting responsibilities equally before the separation. Moreover, it will not always be the case that custody and responsibility will reside with only one parent (as in sole custody). Participants felt that the terminology should separate the parental role from custody so that a parent who does not have custody does not automatically lose his or her role as a mother or father.
- Participants felt that changing the terminology will not change people's perceptions of the divorce process. New words may remove emotional baggage for a short while, but as soon as people have experience with the new terminology, the emotional baggage will return. Nonetheless, it is important to move away from terminology that implies that the children are
"goods"to be assigned one way or the other.
- Participants also felt that the effect of new terminology on other laws should be taken into account, and that clearly defining any terminology used is especially important in highly litigious cases. Some participants also suggested that custody and access orders need to be enforced with the same rigour as orders relating to child support.
What are the issues facing children in situations of family violence?
Participants identified security, trust, self-esteem, isolation, feelings of betrayal and conflicting allegiances as key issues facing children in situations of family violence.
Defining and Addressing Violence
Participants felt that defining violence is key to addressing the issue in family law. The definition should include emotional abuse and take into account that the effect of witnessing violence is the same as the effect of directly experiencing violence. The law should also take into account the effect of family violence on very small children. Participants cited an Ontario study on the effects of violence on children under the age of three.
Participants said that family violence is an issue that supersedes all other discussions on the needs of the children or on services that should be provided or mandated by law. For example, although they felt mediation was effective in situations without violence, participants emphasized that it is of little value in violent situations and may, in fact, be counterproductive. Some participants felt that a custody assessment should take place in every case in which family violence is an issue. Other participants commented on the need for supervised access centres. The need for education also came up several times: for judges, for other professionals who come into contact with families and children, and for parents.
Access in Violent Situations
In regard to access in situations of family violence, participants had several views. Some participants felt it was appropriate and necessary for children's well-being that they continue to have some contact with both parents. Other participants felt that it was difficult to ask a parent to promote access when family violence was an issue. They also felt that access rights might be a source of potential harassment.
Finally, participants discussed how difficult it is to prove whether violence is occurring in a family. Some participants said a holistic definition of violence should be used to ensure the safety of women and children as they seek to leave the violent situation. Others pointed out that it is difficult to base allegations on evidence of a pattern of violent behaviour, since even one incident of physical violence can have lasting effects that show in emotional abuse and control of the victim. One suggestion was that the proof required for family violence should be the same as what would be required for a judge to post a peace bond.
Participants at the Moncton session said that they supported the Neilsen Report recommendations on family violence (see Appendix A).
Looking at the Law
With regard to terminology and the law, the participants said the most important message to get across is that violent situations are not acceptable and must follow a different path to resolution than non-violent situations. They also emphasized that safety has to be the first priority and that emotional violence as well as physical needs to be taken into account. Some participants felt that there should be a presumption against awarding full or joint custody to parents who have abused their former partners, while others felt that the "friendly parent" presumption should not apply when family violence has occurred.
Some participants questioned the validity of the process used to assess allegations of violence, and the weight that should be given to the testimony of children and adults during that process.
Some participants felt it was important to mandate services for children and adults. These services should be widely available across all the provinces and territories.
- Options for Legislative Change
- When discussing the options presented in the discussion guide, participants agreed that any option would preferable to option 1 (no change to current legislation). Some suggested that family violence could be addressed in the preamble to the legislation. Others favoured option 3, which they felt allowed family violence to be a key determining factor. Option 3 seemed to be preferred by participants in Moncton, who also felt that family violence should be added to the wording of section 16 of the Divorce Act. Other participants were in favour of option 4, which they interpreted as meaning that supervised contact would be the default in situations of family violence. Still other participants suggested different options altogether. Another suggestion was that, in extreme cases, there should be no contact whatsoever between the children and the abusive parent (in order to protect the children's best interests).
- Several participants commented on enforcement issues. They remarked that family court orders are treated differently than other orders and are not enforced by the police. They said there are no ways to enforce custody and access orders or to help parents once a custody order has been granted.
- The Wording of the Law
- Participants raised a number of general concerns about the wording of the law. They said that the notion of equality of treatment under the law needs to be incorporated. They also felt that looking only at the Divorce Act was too narrow an approach, and that the Family Services Act needs to be amended to protect children in situations of family violence. Some participants mentioned that, if there were a long list of factors under
"best interests of children,"family violence would be better discussed separately. However, if the list were short, then family violence could be included without being lost. Also, with regard to factors for determining the best interests of children, some participants felt that the
"maximum contact with parents"factor needed to be amended to specify that it does not apply in situations of family violence. Finally, participants felt that time and money must be invested to investigate allegations of violence as quickly and clearly as possible.
- Other Comments
- During the discussion on family violence, participants also remarked on the need for more services for families (such as education, crisis intervention and front-line assistance), for flexibility in the law to respond to the unique situations of each family and to prevent the cycle of violence from continuing to the next generation. Some participants commented that although education has a role to play, legislation is also needed to make the issue more concrete.
Organizations Represented at the Moncton Workshop
- A Family Place/Cercle Familial
- Canadian Bar Association (Family Law section)
- Legal Aid, Moncton
Organizations Represented at the Fredericton Workshop
- Family Court Mediator
- Family Court Social Worker
- Family Mediation New Brunswick
- Fredericton Anti-Poverty Association
- Legal Aid New Brunswick
- Legal Aid, Woodstock
- Muriel McQueen Fergusson Centre for Family Violence
- New Brunswick Advisory Council on the Status of Women
- Shared Parenting Association of New Brunswick
- Stevenson & Stevenson, Barristers and Solicitors
Appendix A: Recommendations of the Neilsen Report, Spousal Abuse, Children and the Legal System, March 2001
- Legislation should require judges to take into account abuse between parents when making child custody and access decisions.
- The safety of abused parents and children should be the paramount concern in law (should have more importance than a child's continuing relationship with both parents).
- There should be a presumption against awarding full or joint custody of children to parents who have abused their former partners.
- The friendly parent presumption should not apply in cases where there has been domestic abuse or violence.
- Legislation should allow a court to order treatment or counselling as a condition of access.
- Explicitly, legislation should recognize continuing domestic violence or abuse as a circumstance justifying a change in a custody or access order.
- Legislation should provide explicitly for expeditious granting of interim custody and access orders in cases of domestic abuse and violence.
- Governments should create and fund safe facilities where parents can exchange their children and where access can be supervised.
- Court staff and family court judges should have more specialized training on the dynamics of family violence and abuse.
- Practising lawyers should have more specialized training on the dynamics of family violence and abuse.
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