Report on Federal-Provincial-Territorial Consultations on Custody, Access and Child Support in Canada
APPENDIX C: REPORT ON NUNAVUT WORKSHOP
A workshop on custody and access was held in Iqaluit on June 14, 2001, with 17 participants. A list of organizations at the workshop is provided in Table 1.
The following topics were discussed:
- best interests of children;
- roles and responsibilities of parents;
- family violence; and
- child support
SUMMARY OF THE DISCUSSIONS
BEST INTERESTS OF CHILDREN
What are children's needs when their parents separate?
Participants agreed that it is difficult to describe "best interests of the child" in Inuktitut, because of the language and because the concept is inherently southern. Participants attempted to translate the concept into Inuktitut and came up with "best way to go for the child." They pointed out that there is greater deference towards children in the North than in the South, and that children traditionally have more say about where they go after a divorce or separation. The term custody is also a difficult one to use in the North. In the South it implies defined procedures and parameters for contact, which is not a system that works in Nunavut.
In Inuit culture, the woman normally gets custody of the children from a common-law relationship. Inuit tradition considers this arrangement to be in the best interests of the children.
Participants also raised concerns about the power imbalances that occur when a marriage breaks down (particularly crosscultural marriages). They felt that the Inuk parent is often at a disadvantage in the proceedings because he or she lacks resources, and so the non-Inuk parent takes control.
Participants listed violence (including power and control issues) and culture as the key factors in determining the best interests of children. Some participants also felt that children should have significant input into decisionmaking. For example, in Grise Fiord and Resolute, any children older than five must be asked where they prefer to live after a separation or divorce. All participants agreed that the children's feelings should be taken into account
Respecting Aboriginal Customs and Applying Southern Family Law
Participants pointed out that government regulations do not respect Aboriginal adoption customs. They also highlighted the importance of grandparents, and that traditionally the grandparents would adopt a child if necessary after a family break-up. Grandparents have said that social services take children away too soon, before the traditional structure can step in to care for them. However, participants also pointed out that Inuit culture is changing, and that younger people may not have the same opinions and values as their elders. A similar cultural clash can be found between people who live in smaller communities, which tend to be more traditional, and people who live in larger ones, which are beginning to resemble southern communities. For example, younger people look for child support and custody, while the older generation prefers to handle matters in a more traditional way.
In general, it is difficult to apply southern family law in Nunavut. Participants said that Canadian law assumes that children are property, which is contrary to the way in which Aboriginal people view children. They suggested that, for many Inuit, the court system is associated solely with criminal justice but not social or family law matters. Furthermore, it is sometimes difficult to work with social workers, who generally enforce child protection legislation rather than family law, because they use "best interests of the child" in both situations, but with different meanings.
ROLES AND RESPONSIBILITIES OF PARENTS
Improvements to Services
Participants said that many Inuit would be interested in using the law to help resolve family disputes, but that there are not enough services to meet the demand. Suggestions for increasing the availability of services included the following:
- broadening the responsibilities of the maintenance enforcement office to include other aspects of family law, and renaming the office the family support office;
- developing a core of mediators in all communities who could provide information, work to resolve issues, and act as an access point for the court system; and
- hiring more lawyers to work on family law cases.
Lack of Family Law Practitioners
Participants identified several factors that cause people to avoid the family law system. One of these is a lack of lawyers to handle family law cases. In regions where there are no lawyers working in this field, people have little understanding and low expectations of the family law system. In some areas where there are family lawyers practising, they cannot meet the community's needs. Some participants said that the power imbalances inherent in family law matters are exacerbated by the scarcity of lawyers and advocates. However, participants also recognized that lawyers from other jurisdictions might not be able to adjust to working in a culture different from their own.
Point of Entry to the Family Law System
A second factor identified by participants is the way that people become involved with the family law system. Often parents are motivated by the need for income support. Participants suggested that a better starting point would be non-adversarial, and that this requires training for the people who work in or with the family law system.
Some participants said that the justice committees, which have been developed specifically to take pressure off the criminal justice system, could deal with family law disputes. For example, mediators could be recruited from among the justice committee members. Other participants said that justice committee members in many communities are already overburdened and are not able to fulfil their mandates. Furthermore, justice committees are dominated by men and people from the older generation who do not understand the situations women face during family disputes and marriage breakdowns. A participant mentioned that there is a program for training members of justice committees. This training is not meant to be an extension of government policy; rather, it is meant to support local initiatives. Therefore, it may be inappropriate to involve justice committee members in family law issues.
Participants said that it was important to use Inuktitut in all services (through interpreters, if necessary) and to orient the services towards people's needs. Education is needed for mediators, lawyers, judges and advocates. Participants also pointed out that, as Nunavut has a higher frequency of common-law relationships than the rest of Canada, services should address the breakdown of common-law relationships as well as of legal marriages. Another concern unique to Nunavut is the number of children who are not registered when they are born, and who therefore have problems getting any kind of government services throughout their lives.
Need for Social Workers
Participants also pointed out the shortage of trained Inuit social workers (rather than individuals sent by religious organizations). Frustration was expressed about developing training for social workers that would be relevant to Nunavut society and still acceptable to the federal government.
Participants had varying opinions on whether changing the terminology in the Divorce Act would affect the decisions people make when they separate or divorce. Of those in favour, some said that changing the terminology might help people to break out of the custody mind set and think more about their roles and responsibilities as parents. Other participants said that new terminology could be easier for an ordinary person to understand and therefore less intimidating. Still others said that, for the focus to be on the best interests of children, the terminology would have to change.
Among those who did not agree with changing the terminology, some participants felt that doing so would not have an impact unless the philosophy underlying the law were changed as well. Others said that changing the terminology would not change anything at the practical level, when parents are fighting for custody of their children.
All participants agreed that any new terminology should be easily understood by Inuit, giving a clear indication of how the process of separation and divorce is conducted. Participants also said that it is important to remember the feelings and needs of children while changing the terminology.
Looking at the Law
Custody and Access
When discussing the various options for terminology in the discussion guide, participants pointed out that the words custody and access translate better into Inuktitut (although there are differences between dialects) than some of the proposed terms. Access translates as "visitation" or "visiting custody." Custody translates as "to hold" or "to have."
Some participants were concerned that the term shared parenting not be used without analyzing the gender implications.
Some participants said this was a good option precisely because it reflects the importance of sharing responsibility between the two parents.
Law in Conflict with Culture and Context
Participants pointed out that the major difficulty facing separating and divorcing parents in Nunavut is that the Canadian court system is inherently adversarial, which is not in keeping with Inuit culture and traditions. Participants said that Nunavut must develop its own justice system that is appropriate for the North, rather than simply adopting the systems of other provinces. Looked at this way, terminology is not as important as the system itself. Nevertheless, some participants still felt that custody and access are not the best terms. Participants also acknowledged that lawyers who come from other parts of Canada will retain their own understanding of the terms used, regardless of what those terms are.
What are the issues facing children in situations of family violence?
Traditionally, when a family situation becomes violent the victim seeks advice from elders (usually grandparents and other family members) and likely leaves the relationship to return to his or her own family. The children would go with the parent and the other parent would see them at the family home when desired. However, if the children want to live with the other parent, they would be allowed to do so.
Some participants said the family violence issue could be resolved outside the court system through traditional methods, unless the children were at risk. Others felt that more social workers and psychologists were needed to support children in situations of family violence. However, it was pointed out that social workers are overburdened and often mistrusted, and that psychologists are expensive.
Some participants said violent situations require alternatives to assessment and supervised access.
Others raised the point that the third party involved in family violence situations does not have to be a social worker or psychologist. This person could be a mediator or some other type of counsellor.
Improvements to Services
Need for Services
Participants said that a wide range of services are needed in Nunavut to help address family violence issues, as well as other issues (such as addiction) that may contribute to family violence.
Treatment resources (for addictions) are clearly needed, as there are currently none in Nunavut. The fear and abuse that stem from addiction continue to affect children, who need treatment to break the cycle of addiction and abuse.
Participants also pointed out that there are very few services for families that are breaking down. In small communities it is difficult for parents to find a safe place to go to get enough "distance" from the situation to make good decisions. Children often get lost in the shuffle. Participants also explained that southerners who live in Nunavut have left behind their family support system, and therefore need even more support when family breakdown occurs.
Participants said that Nunavut is drawn into a southern system of law without having the resources and services necessary to support it. Again, a lack of trained Inuit social workers was identified as a problem.
Participants explained that, traditionally, the mother is the caregiver and nurturer in the family and the father the protector and supplier of food. They also said that Nunavut is a very cash poor society. Because of this, the child support guidelines are unrealistic, and alternatives should be available. Participants suggested that paying parents be able to "pay" with a combination of cash (when they had any) and food (for example, caribou, seal or fish). Alternatively, paying parents might buy groceries once a month and contribute those. In general, participants felt that an Inuit-oriented form of child support should be developed that would be much more realistic and practical than that set out in the existing guidelines.
Participants pointed out that there are two aspects of child support: what is ordered (according to the guidelines) and what is enforced. If the child support ordered were more realistic it might be easier to enforce. Participants also felt that community solutions to enforcement were required, as enforcement is a non-traditional concept.
Finally, some participants suggested that single parents should receive training so that they could better provide for their children without relying on child support.
Organizations Represented at the Nuvavut Workshop
- Department of Health and Social Services
- Department of Health and Social Services, Hall Beach
- Iqaluit Social Services
- Keewatin Legal Services
- Maligarnit Qimirrujiit
- Maliiganik Tukisiiniakvik
- Nunavut Court of Justice
- Nunavut Justice, Legal Counsel
- Nunavut Justice, Policy
- Nunavut Social Development Council
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