Report on Federal-Provincial-Territorial Consultations on Custody, Access and Child Support in Canada
APPENDIX C: REPORT ON ONTARIO WORKSHOPS (cont'd)
SUMMARY OF THE DISCUSSIONS (continued)
How well does the family law system promote the safety of children and others in situations involving family violence?
There was general agreement that the current system does not adequately meet the needs of children in situations of family violence. The primary concern was the need to have a clear definition of family violence that:
- acknowledges that men, women and children can all be victims of violence;
- recognizes the different forms of abuse in families (such as emotional, physical and sexual);
- acknowledges the long-term effects of violence on children; and
- is consistent across the country.
With regard to potential changes in legislation, participants also raised the following issues.
- Some felt that the current approach to family violence is too broad and unbalanced. They felt that the federal government should clearly distinguish between abuse, conflict and violence. Some considered violence a criminal offence, whereas abuse and conflict would be outside such a definition.
- There was some disagreement about the prevalence of violence and the perpetrators of violence. Some participants argued that men and women perpetrate violence equally, and that this should be recognized in the legislation. Others felt that violence is not a "gender-neutral" issue, that men perpetrate most violence, and that the legislation should acknowledge this.
- Some participants felt that the actual process of arriving at custody and access agreements can perpetuate the abusive situation and, therefore, that the legislation should be modified to reduce the opportunities for this. Suggestions included considering the past history of violence, adopting a "threshold" approach to safety (i.e. that dealing with violence and abuse is the first hurdle to entering the process), and thoroughly assessing the violence involved (its nature, likelihood of recurrence and frequency).
- Some felt that parent-parent violence did not indicate that parent-children violence was necessarily a concern. Others felt that parent-parent violence was enough of an indicator that the children are or could be at risk of violence and, therefore, should be protected.
Participants emphasized that children must be protected from violence no matter what. They highlighted the negative impact of violence on children, including that exposure to violence can significantly affect children's ability to follow rules, learn and develop social skills. It can also cause them to lose their sense of self-worth and their ability to trust.
The main issue facing children is their need to feel emotionally and physically safe. Some participants felt that the legal system and support services could help children by:
- being responsible for ensuring that the caregiver and children are provided with adequate support (emotional and financial) to ensure a safe living environment;
- emphasizing the role of the community, schools and extended family in ensuring that the children are protected from violence and receive positive reinforcement;
- ensuring that children have the opportunity for a healthy development process;
- realizing that although children may not show physical signs of abuse or violence, they can perceive, feel and sense conflict and tensions in their parents' relationship; and
- providing children with advocates to support them and voice their perspective.
Improvements to Services
When discussing services, participants commented on the general approach that should be taken in service provision, and made suggestions for types of services that should be offered.
- Focus on Children's Needs
- Most participants agreed that the system and services should focus specifically on the best interests of the children. Emphasis should be placed on support services that listen to children's stories and help them to redevelop a sense of trust and self-confidence.
- Some participants felt that services must be cautious about removing a child from the home, since one cannot assume the children will be better off with strangers (such as the Children's Aid Society or welfare authorities). Others felt that timely access to services would be a key factor in meeting the needs of children in violent situations.
- Address Gender Issues
- Many men's groups expressed concern regarding gender bias toward the subject of family violence. It is too often assumed that men are the main perpetrators of violence. They felt there is a need to recognize that men and women are potentially violent towards each other and their children. They advocated that:
- the government and the system should acknowledge that men are also significantly affected by violence;
- more gender-neutral terms (which do not perpetuate negative stereotypes) should be used when addressing family violence;
- society's attention towards violence is gender biased and more often than not supports the women's perspective; and
- more support and funding for, and access to, counselling services for fathers are needed.
- Other participants pointed out that it is not as common for women to be perpetrators of violence. They advocated a gender-based analysis of family violence issues, and felt that this should affect custody and access arrangements and related services. In some cases, they said even supervised access is not appropriate. Others added that there is a need for a gender-based analysis of support services and the legal system to ensure that adequate support is available to both women and men.
- Ensure Safety
- Participants felt that current services, such as mediation and parenting courses, often do not adequately address the issue of the victim's safety after separation. They offered various suggestions as to how safety could be ensured throughout the process.
- Some said parents should be offered counselling and mediation services before they enter the legal system. Others, however, felt that mediation is not an appropriate service in situations of violence and, therefore, should not be an option.
- Some felt there should be funding to ensure the accessibility of safe alternative dispute resolution services.
- Others emphasized the need to create more safe places for access and exchange. With regard to such centres, some participants pointed out that there should be more training for supervised access personnel.
- Some highlighted the need for emergency custody orders while risk assessments are being conducted.
- Some suggested more adequate support from the justice system for women and men when they are separating from an abusive partner.
- Role of the Community
- Some participants suggested that the community should develop support services for families dealing with violence. They said that there is a need for services outside the legal system. Participants suggested community-based clinics as well as family conflict resolution services, such as the pilot project in the Durham region. It was added that these services would focus on mediation counselling services and, therefore, there is a need for increased funding as well as adequately trained and educated family conflict counsellors and support workers.
- "Humanistic" or Holistic Approach
- Some participants felt that there should be a "humanistic" (rather than gender-based) or holistic approach to the development of support services and educational programs that address issues of violence.
Specific Service Needs
- Education and Training
- Some participants stressed that support service providers and legal professionals should be thoroughly trained and educated about family violence. They felt this would allow service providers to more accurately assess each family's unique situation.
- Some participants acknowledged the need for a preventative approach by teaching children in school to avoid violence and have healthy relationships with peers and in society. With regard to the preventative approach, one person suggested that the system should focus on parental behaviour and on promoting ways of coping in marriage and family life. Other participants felt that supervised access centres could play a preventative role by making their services available during the assessment of allegations of violence.
- Supervised Access and Other Centres
- Some participants felt a need for more supervised access centres and other similar services, such as re-introduction centres for children and parents who have not seen each other for a while. Other participants felt there should be time limits on supervised access orders so that these could be regularly reassessed.
- Some participants felt that the personnel at supervised access centres should receive better training, be more regulated and be more neutral.
- Services for the Falsely Accused
- Many men suggested services to help parents recover from the consequences (e.g. denial of access) of false allegations, no matter how much time has passed. They felt that fathers are often the "victims" of false accusations, and they often end up living with the consequences of being labeled guilty even if they are innocent.
- Family Profiling
- Some participants promoted family profiling as a way to assess the unique situation of each family. By assessing the seriousness of the situation from high to low profile, service providers would be able to identify the issues facing the family from their past history to the present. From this analysis, service providers could gain an understanding of the extent of the problems as well as the needs of the family, and allocate the necessary guidance and support.
What messages would you like to see reflected in the terminology and legislation with respect to family violence?
Focus on the Best Interests of Children
Most participants felt that the law must recognize and address the physical and emotional harm and risks affecting children who witness violence. Some felt that services must be available to specifically address the best interests of the child in relation to family violence. Also, some participants said there should be constant support and analysis of the children's well-being during the divorce process.
Other participants stressed that the legislation should be "strong" because it is the last resort for people who are trying to get out of violent situations.
Recognizing the Seriousness of Violence
Participants generally felt that the legislation must make it clear that all violence is serious, that judges and the legal system cannot make assumptions, and that they must consider all facets of the situation until the allegations are proven either true or false.
Some participants highlighted the need to develop tools to screen and assess the nature and seriousness of the violence, which would have an impact on the level of access granted. They felt there should be more accurate assessment of each family's situation before granting or withdrawing access privileges.
Men repeatedly raised the issue of false allegations of violence resulting in innocent parents (most often fathers) being denied access to their children. They felt there is gender bias in the system. Other participants maintained that false accusations are rare and not easily made, as there is a tremendous onus on victims to provide a substantial amount of proof and that the truth is often uncovered through the assessment process. These participants felt it is important to consider the context of the false allegation and understand that an "unsubstantiated allegation" does not categorically mean an allegation is false.
Some participants stressed that by maintaining accurate statistics and records, the family law system should be able to adequately identify and address instances of false allegations and treat them as a criminal offence. Other participants said lawyers often tend to make assumptions that lead to false accusations.
Some participants felt that the police should be able to more adequately address and enforce court orders and access arrangements. The police must communicate with social services about issues of domestic violence and, they said, there should be harsher punishment for non-compliance with access orders. They also felt that information from criminal court must be transmitted to family court proceedings.
Other participants pointed out that the legal system must have effective enforcement mechanisms to ensure a victim's safety outside of the courts.
Some participants suggested that the law should recognize that when there is violence, mediation is not a safe option.
- Some felt that perpetrators of violence should be required to receive help before any access is granted.
- Some pointed out that the system too often assumes that fathers are the perpetrators of violence.
- The current legislative system was described as promoting violence by leaving fathers who have been denied access with a sense of loss, frustration and anger.
Looking at the Law
Participants were asked to consider the list of proposed approaches the government could take to promote child-centred decisionmaking in situations of violence and to ensure the safety of children and others.
Make no change to the current law.
Some participants agreed that changes should be made to the legal system's current approach to family violence. Some of these participants felt the legislation should include consequences for false allegations, parental alienation and unsubstantiated denial of access. Others suggested that the courts need to develop a more detailed framework to acknowledge and consider all factors of violence.
Some other participants, who did not support most of the options provided, felt it would be more beneficial to remain with the current law. Others thought the focus should be on the basic need for a more adequate definition of violence.
Include a general statement in the law to acknowledge that children who are victims of violence or who witness violence are negatively affected and that family violence poses a serious safety concern for parents and children.
There was little support for this option. Generally, participants felt it did not adequately address the seriousness of violence and the negative impact it can have on parents and children.
Make family violence a specific factor that must be considered when looking at children's best interests and when making parenting decisions.
Some participants supported this option because it identifies family violence as a factor in defining parental arrangements. They felt there is a need to acknowledge the pattern of abuse, even though this does not always mean the abuser should not have access to the child. Other positive points raised with regard to this option were that:
- it has the potential to address the range of issues surrounding family violence; and
- it would address the need for services that focus specifically on the best interests of the children.
Some participants also had suggestions for improving this option. They felt that beyond making violence a specific factor, it is necessary to acknowledge the likelihood of re-offense and consider other pathologies, such as mental illness, substance abuse and emotional abuse, as contributing factors to violence.
Other participants emphasized that parental contact must be maintained-since it is vital to the well being of the child-in all but the most exceptional cases.
Establish a rebuttable presumption of limited contact and limited decisionmaking role for a parent who has committed family violence.
Some participants supported this option because they believe the perpetrator must have a diminished role in the children's lives and because this option "errs on the side of caution" in dealing with violence. They emphasized that violent parents should be separated from the children, but not necessarily denied access in a supervised setting.
Some participants disagreed with the limited contact option because they did not think it was a strong enough approach to the issue of violence. They felt it is too vague and needs a clearer definition. Some felt that the perpetrator should not be granted access but be subject to a rebuttal in due time. They also noted the need for significant consequences for the perpetrator of family violence and that it is not in the children's best interest to be put in the custody of the abuser or to have unsupervised contact with the abuser.
Other participants disagreed with option 4 because they felt it is too harsh. They felt that the system cannot deny children's access to parents and that the courts must presume innocence until the accused parent is proven abusive. They emphasized that it is often the parents who need to be separated from each other rather than the parents and the child. Finally, they felt that this option might encourage false allegations of violence.
Restrict the impact of the "maximum contact" provision by moving the principle from section 16(10) of the Divorce Act to the section that deals with the "best interests of the child."
Some participants supported this option because they believe that abusive or violent parents should have no contact with their children whatsoever. Other participants supported this option when combined with option 4.
Other participants did not support this option because they felt it is not realistic and would not be acknowledged in the courts. They felt there should be a consistent definition of family violence and a burden of proof that makes sense.
FINANCES AND CHILD SUPPORT
Although the issue of child support was not formally raised during the workshop, several participants did make comments touching on it, including the following:
- finances should not be taken into consideration when deciding custody and access issues;
- child support is often used as "maternal" support;
- there should be a clear definition of child support, including a ceiling limit based on the daily needs of the children (e.g. lessons, health care and food, among others);
- thorough assessments should be made to consider the number of people needing financial support;
- when spousal support is needed, it should be dealt with on a case-by-case basis;
- there should be more consideration for the other (supporting) parent's financial capabilities;
- there should be DNA testing at birth to ensure that the parent is supporting only their biological children; and
- children should not be used as a profit centre and support should only be given on the basis of the children's needs.
Organizations Represented at the Ottawa Workshop
- Child Welfare League of Canada
- Child/Youth Advocate
- Children's Aid Society
- Entraide Pères-Enfants Séparés
- Everyman Magazine
- Family Service Canada
- Father Craft
- GRAND Society
- Single Father's Network
Organizations Represented at the Toronto Workshop
- African-Canadian Legal Clinic
- Canadian Children's Rights Council
- Canadian Committee for Fairness in Family Law
- Catholic Children's Aid Society
- Centre for the Study of Civic Renewal
- Children's Rights Council
- Children's Voice
- Community Legal Education, Ontario
- Divorce and Defense Strategies
- Equal Parenting of Durham
- Equal Parents of Canada
- Families in Transition, Family Service Organization of Toronto
- Family Conflict Resolution Services
- Fathers are Capable Too
- Fathers for Justice
- Fathers with Rights
- GRAND Society
- Human Equality Action and Resource Team
- Justice for Children and Youth
- Kids Need Both Parents
- Mothers Without Custody
- Non-Custodial Parents of Durham Region
- Ontario Provincial Police
- Parents Without Partners
- Parents Without Partners, Rosedale Chapter
- Rainbows Spectrum
- Second Spouses of Canada
- Toronto Police Services, Community Policing Support Unit
- Women of the Métis Nation of Ontario
Organizations Represented at the Thunder Bay Workshop
- Children's Aid Society
- Faye Paterson Transition House, Crisis Homes Inc.
- First Step Women's Shelter
- Geraldton Family Resource Centre
- Northwestern Ontario Women's Centre
- Thunder Bay Multicultural Association
Organizations Represented at the London Workshop
- Balance Beam
- Barristers and Solicitors
- Centre for Children and Families in the Justice System of the London Family Court Clinic
- Changing Ways, London
- Children's Aid Society, London and Middlesex
- Dalhousie Place
- Family Advocacy Network
- Family Mediation Canada
- Family Mediation Centre
- Family Service, London
- Ingamo Family Homes Woodstock Inc.
- London Battered Women's Advocacy Centre
- London City Police Service
- London Second Stage Housing Corp. Women's Shelter
- Madame Vanier Children's Services
- Merrymount Children's Centre
- Monsegnorini Feeney Centre
- North End Children's Centre
- Nova Vita Women's Services
- Ontario Provincial Police, Western Region Headquarters
- Parents Without Partners
- People for People
- REAL Parents for Justice
- St. Thomas-Elgin Second Stage Housing
- Thames Valley District School Board
- Women's Emergency Centre Woodstock Inc.
- Women's Rural Resource Centre of Strathroy and Area
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