Report on Federal-Provincial-Territorial Consultations on Custody, Access and Child Support in Canada
APPENDIX C: REPORT ON NORTHWEST TERRITORIES WORKSHOP
On June 14, 2001, the Northwest Territories Department of Justice sponsored an in-person consultation on custody and access issues. The purpose of the session was to get input into possible legislative changes and improved services to parents and children dealing with separation and divorce. This consultation was intended to complement, not duplicate, the Federal-Provincial-Territorial Family Law Committee's national consultations on these issues.
The meeting was also an opportunity for the territorial government to get northerners' views on how it can help parents, lawyers and judges focus on what is best for children when making decisions about separation and divorce. Mike Bell, of Inukshuk Management Consultants in Yellowknife, served as the facilitator. A list of organizations that participated is attached as Table 1.
The session opened with two brief presentations. A representative of the Department of Justice Canada explained the background for the consultation process. The representative of the territorial Department of Justice provided some background information on programs and services and some statistics on separation and divorce in the Northwest Territories.
ABOUT THIS REPORT
This report provides a summary of the discussion and recommendations. It is divided into three parts:
- the "mind map" outlining the major trends and issues affecting custody and access;
- the "open space" discussions on specific issues and areas of concern to the participants; and
- the recommendations arising out of the discussion.
THE "MIND MAP" ON TRENDS AND ISSUES
During the first session, participants developed a "mind map." The purpose of this was to identify some of the major trends and issues affecting custody and access.
In this brainstorming process, participants indicated their major areas of concern. These were then written on a large blank paper covering a wall-on lines extending out from a circle in which was written "Trends and issues affecting custody and access,"-as follows.
- Roles, rights and access of grandparents:
- cost implications
- non-responsible system.
- Small communities: can local resources be used? How?
- Education of communities:
- Barriers to justice:
- Dene, Métis, Inuit children
- systemic discrimination in judicial systems
- Dene self-government.
- Poverty discrimination facing families:
- legal process to qualify for income support
- don't qualify for legal aid
- the working poor.
- no RCMP policy
- problems with Ordinance
- custody orders aren't clear
- maintenance enforcement for people making deals with parents
- difficulties with payment; enforcement especially between jurisdictions
- schools and agencies trying to interpret unclear custody orders
- inadequate powers of maintenance enforcement; money not used for maintenance
- interjurisdictional cooperation
- enforcement does not adapt to changing economic realities
- need for more flexible change mechanism
- boom-bust issues
- maintenance enforcement.
- Proper forum for decisionmaking:
- non-judicial approaches
- community-based approaches
- elders' roles
- Impacts on children in small communities:
- no services for healing process
- small communities
- court process traumatizing
- no treatment programs for children
- hard on grandparents.
- Refusal of federal government to provide resources for legal aid:
- money for agency
- lack of attention.
- Cost of access when parents live far apart.
- Role of social workers and how they are put in the middle:
- impact of witnessing violence
- safety of children
- family violence
- grandparent abuse.
- Definition of spouse
- family law in same-sex relationships
- legislation doesn't protect all children.
- Who can alter the order?
- The 40-60 rule should access be taken into consideration
- review guidelines for N.W.T.
- decisions on access based on support guidelines
- decisions on level of support based on access.
- Lack of dollars for supervised access; lack of services; lack of consistency; lack of space; need third-party drop-off for children.
- Parent education:
- parents focus on their rights
- parents not focused on children
- custody and access disputes turn into child protection issues
- false reports to punish other parent.
- Federal legislation:
- shared parenting.
- Other dispute mechanisms (mediation):
- women not on same level in process
- dynamics of violence.
Most of the trends and issues appear to fall into the following broad areas of concern.
- Problems with existing procedures, especially with unclear custody areas.Concerns in this category included:
- inconsistencies in enforcement,
- inflexible support payment requirements that do not take into account the boom-bust cycle of northern employment,
- and agencies (schools, social work agencies, for example) caught in the middle.
- The lack of services, especially in smaller, more remote communities.This category includes:
- the general lack of services,
- the realities of poverty and unemployment,
- the lack of funding for legal aid and other services such as supervised access,
- and the cost of access because of travel requirements.
- Barriers to custody and access caused by the limitations of existing legislation or its interpretation. This category includes:
- systemic discrimination in judicial systems against the rights of Aboriginal peoples,
- failure to adequately take into account the realities of culture, failure to acknowledge and recognize the rights of same sex couples,
- failure to acknowledge and recognize the rights of grandparents,
- and lack of knowledge among the general public of existing legislation and its practical applications.
- The lack of non-judicial dispute resolution mechanisms.This category includes:
- the lack of access to legal services,
- especially in more remote communities,
- the need for more mediation,
- and the need to use more traditional forms of dispute resolution that are culturally responsive (elders and respected community leaders as mediators).
- The emphasis in existing legislation on parents' rights rather than the rights of children.
OPEN SPACE: SMALL GROUP DISCUSSIONS
After completing the mind map, the session entered an "open space"stage. The facilitator explained the open space procedure and participants were invited to set the agenda for the rest of the day by posting discussion topics on the wall. The members of the group then signed up for discussions in their area of interest. In addition to facilitating their own discussion groups, group leaders had to ensure that someone in their group recorded the discussion. There were 12 small group discussions.
ROLES, RIGHTS AND RESPONSIBILITIES OF GRANDPARENTS
- Intrusion in elder years of having to take care of grandchildren.
- Parents will not allow grandparents to see grandchildren.
- Grandchildren with grandparents, but court order does not include payments to them.
- Current pensions cause financial hardships (get clawbacks if they receive money for looking after grandchildren).
- Rights for grandparents when parents separate (to still be able to see grandchildren).
- Grandparents as victims of break-ups.
- More information available to grandparents on how they can have access to grandchildren.
- Recognition of the role that grandparents play (religion, upbringing, etc.).
- Grandparents can be role models for the community.
- Laws should reflect that grandparents have rights.
- Grandparents should be considered as suitable guardians for children in custody and access situations.
- Pensions: grandparents should not be penalized because they may receive money for caring for grandchildren.
- Court orders must ensure that money goes to where the children actually are.
- Elders and grandparents should have input at the community level into decisions concerning the welfare of the child affected by a break-up.
- There must be appropriate ways to develop and distribute information, along with appropriate funding.
ROLE OF TECHNOLOGY IN ACCESS ISSUES
- Technology as a means of establishing and maintaining contact.
- Public information through technology:
- legal rights
- Internet support groups
- information clearinghouse
- Internet groups would provide a means of support.
- Use of technology for maintenance order enforcement:
- greater capacity to trace people;
- direct deposits of enforcement payments to parents; and
- face-to-face interaction through video conferencing.
- Technology would help alleviate the high cost of access for parents far from their children.
- Technology can help with interpretation services in the legal process; access interpreters and witnesses can broaden the array of evidence through things such as video conferencing.
- Video conferencing will facilitate presentation of broad background evidence of family law cases in court.
MAINTENANCE ENFORCEMENT ISSUES
- Child support guidelines.
- Maintenance enforcement orders (MEO)-child support in regards to social assistance and Quebec MEO; how they deal with orders and collecting.
- Child support: both parents are responsible for the child.
- Orders made that one of the parents cannot afford and what happens upon the death of one of the parents.
- Instances when the mother gets the child support money, and then spends it on other things (drugs, for example).
- One mother can get a child support order for three different fathers.
- MEO: will contact the parents and try and help them with their orders and try to work out the problem, such as when one parent is being harassed by the other (mother or father).
- MEO: what they can do and what they cannot do (for example, making an order when a client loses his job); how MEO can help a parent with someone who is behind in his order (MEO is able to reduce it until that person is on his feet).
- Legal aid will help to vary orders in either way.
- MLAs: how to approach for help, changes in the system, help with funding.
- Payment in kind? For example, hunting for food instead of sending money, receiving which may be equally helpful to a family (Native custom).
- MEO: Privacy Act and information that is on file.
- MEO: getting the money when it should be gotten.
- MEO: getting payment from another jurisdiction-order to be sent where? Who is he working for? If no money is received and MEO knows where client is working, they will do a wage attachment with the company in the other jurisdiction until the other jurisdiction takes over the file.
- MEO: accepts Visa, cheque and cash debit direct from accounts.
- MEO: in cases when someone does not want to work, MEO will bring default hearing.
CURRENT TERRITORIAL LEGISLATION DOES NOT RECOGNIZE ALTERNATIVE FAMILIES
- Gays and lesbians are steps behind.
- Current legislation does not include other relationships beyond heterosexual couples.
- Homosexual couples have no rights with regard to child custody and access.
- Historically, courts have viewed homosexuality as a reason for "non-custody."
- Other alternative relationships (e.g. grandmother, sisters, aunts) are not recognized either.
- There is no other method to access rights in this matter.
- Whether or not couples want to be "married" or "spouses" is not the issue. The issue is equal access to the law and rights.
- Issues of self-government: laws need to be addressed by Aboriginal communities when they devolve their own jurisdiction.
- Legislation will be changed, either through legislation reform or via court direction (Charter challenge).
- The importance of church influence in influencing legislation.
- Discrimination against homosexuals in family law issues.
- Amend territorial legislation to make the"spouse" definition more inclusive.
ALTERNATIVES TO THE COURT PROCESS
- Discussion on collaborative law process.
- Difficulty in small communities: no lawyers.
- Justice committees are expanding into community justice committees and using more traditional methods of dispute resolution.
- Educate lawyers about traditional dispute resolution methods.
- Some people do not want to use mediators. They want to avoid sitting with their ex-partners.
- Knowledge about availability of mediation.
- Knowledge about incidents of mediation (requirements, etc.; details may be lacking).
- People see court on TV and think that it is the only option.
- Should mediation be mandatory?
- Training for mediators, including crosscultural aspects.
- Conditions and terms for mediation-not all can be forced into it.
- Mediation with a parenting course.
- Involvement of other agencies prior to court processes.
- Interim situations are often crisis situations-how are these dealt with?
- Use justices of the peace to make interim orders?
- Parenting education prior to mediation.
- Who mediates in small communities?
- Access for all communities.
- This is more than just a justice issue; involves many other government departments.
- Tribunals to adjudicate, rather than courts, or another body. Judicial review available.
DIVORCE AND SEPARATION: EFFECTS ON CHILDREN AND THE ROLES OF PARENTS
- In the child's best interest; courses should be available.
- School curriculum should include courses on healthy lifestyles and separation and divorce issues.
- Attitudes on issues such as divorce.
- Training for people in the community on issues of separation and divorce.
- Educating the community on issues of separation and divorce.
- Children learn what they live.
- Values and customs are passed on to families who in turn pass them on to their children.
- Blended families and marriages can sometimes cause difficulty.
- Education of and awareness among children.
- Education and awareness for couples intending to marry, and on the roles and responsibilities of being parents.
- Education and awareness for couples separating or divorcing and for their children.
- Services needed for community awareness.
- Services such as a 1-800 help-line for children of parents who are going through separation or divorce.
- Mandatory courses by the Department of Justice or the courts, which parents must attend and receive a certificate.
- Cycles of violence and abuse need to stop.
- Better services needed for children and youth.
- Cultures, values and traditional teachings are important.
- Mandatory courses from the court-which divorcing parents must attend-on information related to issues of divorce effects on children.
- School curriculum should include courses for students on healthy lifestyles and issues concerning separation and divorce.
- Use elders in the community and the traditional teachings on marriage and parenting.
- Promote awareness and education for couples prior to marriage and on the roles and responsibilities of parents.
- Set up a help-line (1-800) for children of parents who are divorcing.
- Have all justices of the peace and ministers who perform marriages provide at least three educational sessions to couples before they marry.
ENFORCEMENT OF ACCESS AND CUSTODY ORDERS
- Three ways to enforce orders:
- contempt of court,
- charge under Criminal Code,
- and charge of abduction/kidnapping (jail up to 10 years).
- If someone breaches an order, call the RCMP. (However, the RCMP can only enforce an order when the judge has included an enforcement clause in the order. The RCMP also has no power to investigate.) Determining that kidnapping has occurred is difficult; intent is a key factor (for example, if one parent is trying to prevent the children from seeing the other parent). There are two types of kidnapping:
- the non-custodial parents takes the children during access time
- or, when there is no order, the parent visits the children and takes them.
- How can we best encourage people to agree to orders and follow them?
- How do we find an easy way to enforce orders?
- Terms are too vague; "liberal and reasonable access" means different things to different people.
- Draft a proper order-specific and detailed.
- Mandatory review of custody order six months later.
- Legislate required information for custody orders.
- Can there be a review officer who reviews the order after six months and decides whether it should go back to court or not? Would the dynamics of the relationships effect this? Would a man just say the other is okay even when it isn't?
- Establish guidelines for every custody order.
- Some couples just agree to the orders.
- A child support order is very specific; make child custody orders the same.
- But if too specific, there will be trouble, people will feel too controlled.
- Set up a
"children's house"-one parent in house at a time, each parent moves in and out of house.
- Parenting after separation courses should be mandatory. After taking the course, a person will be more apt to agree to the custody arrangement.
- If people can reach agreement with a mediator, lawyers should stay out of it; the agreement should stand. Now, often lawyers will say they don't like the agreement and the case still goes to court.
- There should be compulsory mediation for couples for whom it would work and with no lawyer involvement.
60-40 CHILD SUPPORT ROLE
- Shared custody is more expensive than sole custody, although the court views it as cheaper.
- Usually one parent carries the financial burden.
- Children are often caught in a "financial war," with one parent fighting for 61 percent custody time and the other fighting for 40 percent time.
- Section 9 of the child support guidelines need to provide more direction:
- What is the history of financial responsibilities?
- Who pays for what?
- Shared custody causes disagreements where there were none before.
- Section 9 requires more direction to the courts about what factors to consider, who has assumed financial responsibilities, for example.
- When the children spend approximately the same amount of time with each parent, the judge orders something other than table amount. Judge to review all circumstances.
ACCESS TO SERVICES
- Accessing legal aid is mostly done by telephone. Many people are not aware of services. Family violence is a huge issue. Not clear where to refer people.
- Committees are not set up with Health and Social Services.
- Social workers may not be accepted within the community.
- Access in small community. Is there a neutral place to go to?
- Lack of knowledge of service providers.
- Should there be a territorial directory of key contacts and how they can be reached?
- Adult literacy is a problem (therefore, what good is a directory?).
- There are 42 family law programs and services in the N.W.T., costing millions of dollars a year. Who knows about them?
- Identify the existing services.
- Re-examine the funding mechanisms that discriminate against small communities. Policy advisors and funding bodies must take small communities into account (need a per capita formula). They must be considered in a network, because if a problem arises, it has a ripple effect.
- The federal and territorial governments do not understand the needs in the communities. They should consult with the communities, or give the funding to the region, so the money is put in the right place.
- Programs go to the communities with criteria attached, and people are asked to apply.
- Provide resources for people with access (poverty is a key factor, and many people have no financial resources). Consider what happens when one parent moves away. Could look at levels of income. These issues override what is in the best interests of the child.
- Look at the international convention on the rights of children, as well as Aboriginal conventions.
- Need for clarification of overall problems in N.W.T. is acute. It is increasingly difficult to know what the territorial government should be doing for local governments and communities, especially Aboriginal communities (Aboriginal governments are evolving in different forms).
- Allow for input by the people. Aboriginal people must be allowed to voice their concerns. People are "boxed in" by legislation and are becoming divided.
- Need to seek unity and common ground through consultation and discussion.
- Need to address the fact that negotiations for devolution and self-government are bogged down.
- Need more support for children in general; too many are being ignored.
- Need interim measures for children. Schools could give a resource list to children.
- Need ways to help children access treatment; many are waiting. Some children are walking time bombs.
- Pressure should be exerted for intervention money for treatment and preventive measures (youth organization funding).
- Push for mobile treatment for children and families.
- Services should be accessed outside of the community.
- Need more public pressure. Oil and gas is coming up and children are our future; the cycle is going to continue.
- Native Women's Association looked at mobile treatment.
- Mentorship? Forum should be developed to identify and examine social issues resulting from oil and gas industry.
- Adults can go for follow-up but youth cannot.
- Should be consulting with youth, since there is going to be paid work for youth.
- Abduction: no help unless you have the dollars.
- Raise awareness and educate people about their rights so they can make choices. Legal education needed for the public and judges and lawyers.
- Some judges talk down to people. The court personnel as a whole should be educated as well, particularly on the dynamics of small community living.
- Need genuine consultation with children on matters of custody and access.
- Grandparents and parents try hard to keep things going, but sometimes judges order contrary conditions.
- A neutral party is needed to help with investigations when custody disputes come up. (In Newfoundland, a home study is done by the social worker in a custody dispute.)
- Ask the kids about the process (i.e. what is good or bad about how the parents handled the dispute?).
- Have N.W.T. youth participate in the federal consultation with the youth (i.e. youth from different backgrounds: sexual abuse, family violence, etc.).
- Circuit court takes long time to come around; anxiety goes on much longer.
- Shared custody works better when both parents live in same place (parents often will not sacrifice this for the children).
- Legal divorces? A lot of parents are not married, so many children have no access to services.
- Maintenance-parents can try to get support but custody and access is an issue that single parents do not know about. Even maintenance needs to educate the public.
- Status of Women Council of N.W.T. is interested in having parenting education for couples after they separate.
- Family law lawyers have experience dealing with parents who use children during custody disputes.
- Child Protection Worker often caught in the middle of custody disputes when parents sometimes allege child welfare concerns between parents.
- Educating parents and children about their responsibility after separation.
- Parents need to know that children should not have to choose between them.
- Who should offer courses to parents?
- Responsibility should be on everyone; however, it may not be a good idea to have Health and Social Services boards involved since they also do child protection work.
- Programs (such as to educate parents) should be done by a contractor (e.g. Status of Women Council, not by Health and Social Services).
- Parenting courses and other courses should be offered to parents before they end their relationship.
- Courses should be mandatory upon separation and divorce.
- School curriculum should include courses for students on healthy lifestyles, relationships, communication, parenting, etc.
- Issues such as Fetal Alcohol Syndrome and Fetal Alcohol Effects will cause difficulty in parenting.
- Services should be provided before and not after separation and divorce.
- Services should be coordinated.
- Coordinate services and funds. This should happen through the system.
- What is "In the Child's Best Interest"? Should be advertised and communities should have access to this program.
- Make parenting education available to the whole of the N.W.T.
- Government-wide strategy needs to happen.
- Social enveloping.
FAMILY VIOLENCE, CONVICTIONS OF CHILD ABUSE AND SEXUAL ASSAULT
- Most of our clients are not affected by the Divorce Act, since they are not married.
- "Child's best interests" is such a catch-phrase. Who determines this? How is this different from "best practice"?
- Just because someone does not get convicted of sexual abuse does not mean that he or she did not do it.
- What is the definition of violence? It needs to be broad and include all forms of violence. Is it only one line in our current legislation?
- What governs common-law relationships?
- There has to be some room to look at each case individually.
- By doing this individually, will it just get dumped onto someone or some department (i.e. a social worker).
- Do not have the social worker (who is supposed to help) in situations of family violence also make decisions about custody.
- We need community education.
- Why move mom/kids from their home and not the perpetrator?
- Systems are not working together.
- We need a risk assessment in cases alleging violence and abuse.
- What about a review period for court orders? How well is it going? Is this working for everybody? The only way to deal with changes now is to go back to court.
- Educate the bar and judiciary. Unclear orders often make no sense.
- RCMP needs education in matters of family violence as well.
- Education/services for students (most are available only in Yellowknife). Need more in the communities.
- How are common-law relationships recognized? How are they dissolved? Who is responsible for the children in these situations?
- Access to the law/justice system is difficult and sometimes impossible outside of Yellowknife and a few other larger communities.
- Telephoning a lawyer long distance can be very costly.
- People (women more often than men) sometimes are passed through the system without really being helped.
- Access to legal aid may be difficult and the cost of legal services can be prohibitive.
- People applying for access orders in cases of family violence should be able to expedite court services quickly.
- RCMP need a clear policy about when they should get involved.
- Violation of a court order is a criminal offence, and there needs to be a community protocol so people know who to call for what and when. There are advantages as well as disadvantages to small communities-some communities have a "community response" and it works well.
- Third-party drop-off space would protect a child from potential violence.
- Mothers are often left to figure out who will supervise visits, which puts more stress on her and the children.
- A special type of court ("family violence court") is needed, as well as dispute resolution mechanisms outside of courts.
- Most communities have justices of the peace and they should be trained in family issues/family law so they can hear custody and access issues.
- There is concern that courts are "too soft" on family violence offenders.
- Rely more on community justice, even for interim orders, and for supervising workers and managing costs, etc.
- Review custody orders.
- Insist on a "pre-report" to the court regarding family, situation, etc.
- Changing the name doesn't change what you are basically doing.
- Recognition of orders for enforcement under international treaty and for travel purposes may become difficult.
- Current wording has a win/lose connotation.
- Use other terms to clarify what custody and access actually require of a particular parent.
- Need further definition of custody.
- The key is really that the back-up services must be there to enforce and protect rights no matter what one calls them.
- How does changing terminology affect the meaning and use of precedence in N.W.T. law?
- Rights versus responsibilities or rights and responsibilities.
- Keep the current wording and provide more definition about what it means.
- Key is changing the mind set.
- Consultations lack gender orientation. The reality is that mothers have access and chase after support-and this is ignored.
- Look for alternative ways to resolve issues.
- Every case is different.
- Guidelines tie-in-has impact on relief under Guidelines.
- No matter what you call it, you don't capture the essence of parenthood.
- The details are what matter, not how you define it.
In the last session of the day, the participants gathered in plenary. The facilitator asked participants to reflect on their small group sessions and indicate dominant themes or areas of concern about which they might like to make specific recommendations. They decided on the following recommendations.
- Increase awareness of custody and access issues. Introduce courses for parents and families across the N.W.T. Seek community input when developing the courses. Make courses compulsory.
- Make sure there are services (and the resources to provide them) to back up the court system.
- Make the legislation more inclusive. Clarify the definition of spouse. Have the legislation recognize the implications of adoptions.
- Have a mandatory review of all custody orders after six months. Spell out an understandable review process.
- Amend legislation to recognize the rights of grandparents.
- Institute a 1-800 number for children facing family break-up.
- Provide education programs for judges so they will respect Dene culture and become more sensitive to Dene history, the dynamics of different communities, and the differences among Dene peoples.
- Develop custody orders that are clear, easy to understand, and provide appropriate access. Make sure schools and agencies understand the orders.
- Consider family violence in court decisions, especially when there is evidence of violence but perhaps no conviction.
- Make sure all changes to legislation and procedures are understood in a consistent manner across all government departments.
- Consider alternatives to the court adjudication process. Consider making these alternatives mandatory. Introduce a unified family court and provide options within the court system.
- Institute mandatory courses for parents considering adoption and make them mandatory prior to court appearances.
- Improve legal education for the public so that rights and responsibilities are better understood.
- Make sure the cultural rights of children are respected in the court processes.
- Improve interpreter services and make them more available.
- Beaufort Delta Legal Services
- Canadian Bar Association, Family Law Subsection
- Dene Nation
- Denroche Brydon
- Dogrib Community Services Board
- Education, Culture and Employment, Government of N.W.T.
- Family Support Centre
- Gullberg, Wiest, MacPherson & Kay
- Hay River Community Health Board
- Health and Social Services Board
- Health and Social Services, Government of N.W.T.
- Inuvik Regional Health and Social Services Board
- Justice, Government of N.W.T.
- Legal Services Board
- Lutselk'e Health and Social Services
- Native Women's Association
- N.W.T. Seniors' Society
- Out North
- Status of Women Council of N.W.T.
- Yellowknife Health and Social Services Board
- Yellowknife Women's Centre
- YWCA, Alison McAteer House
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