Report on Federal-Provincial-Territorial Consultations on Custody, Access and Child Support in Canada

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ROLES AND RESPONSIBILITIES OF PARENTS

This topic looks at how best to define parental responsibilities after a separation or divorce to ensure that the best interests of children are considered.

When parents separate or divorce, they must work out how they will continue to carry out their parenting roles and responsibilities. Most separating and divorcing couples are able to agree and work out their own parenting arrangements. Others find it difficult to agree on such issues as where the children will live, and who will be responsible for their day-to-day needs, schooling, religious education and sports activities. It is even harder for parents to make decisions about their children when there is mental illness, substance abuse or violence between the parents or directed at the children.

The following questions addressed the topic of roles and responsibilities:

• What factors enable good parenting after separation or divorce?;
• How aware are you of existing services in your community? How could these services be improved?; and
• Would using terms other than custody and access make a difference in the way parenting arrangements are determined after separation or divorce?

Respondents also considered the following five options for changing the terminology used in legislation relating to separation and divorce:

• keeping the current legislative terminology;
• clarifying the current legislative terminology by defining custody broadly;
• clarifying the current legislative terminology by defining custody narrowly and introducing the new term and concept of parental responsibility;
• replacing the current legislative terminology with the new term and concept of parental responsibility; and
• replacing the current legislative terminology with the new term and concept of shared parenting.

Factors Enabling Good Parenting After Separation or Divorce

To identify factors enabling good parenting after separation, some people began by defining good parenting. They felt that children's needs would remain much the same after a separation or divorce-therefore, parents' responsibility to fulfil those needs would remain unchanged. These respondents acknowledged, however, that some parents would be taking on different roles (in some cases, roles that are new to them; in other cases, having more responsibility) in fulfilling those needs, and that they would need to develop new skills.

Some women's groups said that a thorough gender analysis of parenting issues is required to ensure that family laws are congruent with Canada's national and international commitments to gender-based policies and laws, and that the results of that analysis would be a basis for good post-divorce parenting.

Some advocates for non-custodial parents said that implementing the recommendations of the Special Joint Committee on Child Custody and Access would enable good post-divorce parenting.

Many factors that enable good parenting after separation were identified. They relate to three areas:

• the parents themselves;
• legislative support; and
• other support available to parents.

Respondents raised many points relating to the parents' role in meeting their children's needs, and what those needs would be during separation and divorce. These points are addressed here.

A table summarizing all of the factors can be found at the end of this chapter.

The Parents

With regard to the parents themselves, respondents identified many factors that would enable good parenting after divorce:

• communication;
• cooperation;
• maturity;
• flexibility;
• willingness to keep the peace;
• ability to come to an agreement (either through mediation or through the court system) about roles and responsibilities;
• willingness to respect the agreement;
• ability to separate personal issues (dealing with former and current relationships) from issues that touch on their children's well-being;
• ability to take responsibility for mistakes and willingness to try again;
• acknowledgment of the existence of cultural differences in child-rearing practices;
• validation of the parenting abilities of men, as well as of women with disabilities and gays and lesbian women;
• acknowledgment that a parent is not replaceable by a new partner or extended family;
• consideration of the specific needs of Aboriginal Canadians (a more in-depth look at the concerns of Aboriginal Canadians is provided in Appendix B); and
• acceptance of children having access to both parents.

Legislative Support

Some people said that a legal system that recognized both parents as equally capable and needed by the children would support good parenting. Others said that the law must take into account women's social and economic disadvantage, and argued that the image of the father as an ideal nurturing parent is often inaccurate.

Other points made with regard to the law were the following:

• The law must be flexible enough to recognize that some parents are not interested in parenting, and that forcing them to be involved in their children's lives would be detrimental to the children;
• The legislation must specify the need for a parenting plan that explicitly sets out each parent's roles and responsibilities. This would help parents agree and understand their responsibilities;
• Child support should begin as soon as possible and the parent receiving support should be open about how he or she uses child support funds (a more in-depth discussion on child support can be found starting here); and
• Both parents should have and be made to promote adequate access to the children (a more in-depth discussion on access can be found here).

Other Support Available to Parents

Some respondents said that good parenting implies that parents must seek out external support for themselves (and for their children) during separation and divorce. Respondents' suggestions about the types of services that would be helpful are discussed below.

Awareness of and Improvements to Services

People were aware to varying degrees of the services available in their community. Most felt that those services are not well publicized, nor do they adequately meet the needs of parents during separation or divorce.

However, the opposing view was also expressed. Some people said that, as people enter freely into marriages, they are solely responsible for their own well-being after the marriage dissolves. Others said that if shared custody were the norm and deterrents were put in place against false accusations of abuse, existing services such as legal aid, counselling, access centres, child advocates and alternative dispute resolution would be unnecessary.

People calling for more services listed three as the most necessary: educational services, support services for parents and children, and legal services. Respondents also identified issues relating to service provision and the characteristics of "ideal" services.

Education

Respondents said that educational services were needed for parents, lawyers, judges and police officers. Suggestions for the types of education that should be provided included the following:

• courses on parenting skills and, in particular, post-divorce parenting skills, such as understanding the impact of divorce on children and recognizing and promoting children's best interests (the program Positive Parenting From Two Homes from Prince Edward Island was given as an example);
• courses on communication skills;
• education for parents in family law (federal, provincial and territorial);
• education for high-school-age children on parental roles and responsibilities (as a preventative measure); and
• information and training about the division of parental roles and responsibilities (some people said that these should be made mandatory).

Several respondents suggested that a national clearinghouse for information on parent education should develop guidelines on content and best practices and undertake consistent national evaluation of existing programs. Others recommended mandatory education for parents before they are permitted to begin court proceedings, pointing to Alberta's successful Parenting After Separation program as an example.

Support Services

The suggestions for support services that should be provided to parents included the following:

• counselling;
• alternative dispute resolution mechanisms such as mediation (including using elders as mediators for Aboriginal families);
• the video For the Sake of the Children, originally developed in Manitoba, which respondents in Prince Edward Island found to be particularly useful;
• a mentor for parents and children: someone who has been through a "successful" divorce (one that involved little conflict);
• a parenting coordinator who would help parents allocate and fulfil their parental responsibilities, as well as manage any changes to these responsibilities that might become necessary over time;
• more centres for supervised access and exchange of custody, the mandate for which should be broadened so they can also be a "window" into other community-based and legal services;
• centres for multidisciplinary assessment of high conflict situations;
• help for parents with court orders to work out issues as they arise and ensure that the orders are followed (the California Special Masters program was cited as a possible model for such a service);
• traditional knowledge and practices as a meaningful alternative to the court system for Native Canadians; and
• elders, traditional healers and medicine people as alternatives to psychologists, social workers and other professionals who address the breakdown of Native families.

Respondents also emphasized that parents must develop informal support networks of friends and family.

Legal Services

With regard to legal services, people highlighted the need for the following:

• access to legal aid for family law cases (in most provinces and territories, legal aid is primarily for criminal law cases);
• more funding for legal aid so that it can be more widely available;
• cost-effective alternatives to legal aid (such as paralegals);
• expansion of unified family court programs; and
• continuity in the court process and, in particular, in the presiding judge (to ensure consistency and familiarity with the case).

Other respondents advocated handling separation issues and parenting issues in two distinct agreements. This would allow parenting issues to be settled rapidly (which would stabilize the situation as quickly as possible for the children involved), without getting mired in the specifics of the separation agreement. Respondents said that this would address the fact that separation agreements are often complicated and negotiations about them prolonged due to financial issues, particularly when small family businesses are involved.

Service Characteristics

Respondents stressed that services should be timely and focus on early intervention to prevent high conflict. However, they also felt that follow-up programs are necessary to review the post-separation parenting situation and resolve conflicts as they arise. Services should be available equally to women, men, children and members of the extended family. Some people added that gay- and lesbian-friendly services should also be available.

Respondents said that services should be culturally sensitive (to the needs of First Nations people, among others), available in the appropriate languages for the province or territory and clientele, and available in both urban and rural communities (the section below on services in rural, remote and northern areas addresses the needs of non-urban Canadians in more depth).

The following were other suggestions about the characteristics of services:

• Sign language interpretation and documents in Braille should be available;
• Services should be available at low or no cost because of single parents' reduced disposable income;
• An allowance for child care and transportation costs should be provided to improve accessibility;
• Services should be designed specifically for families with violence, since services that are appropriate for non-violent families are inappropriate, or even dangerous, in situations of violence; and
• Parents who are in conflict should be able to attend separate sessions, rather than be forced to participate in the same group.

Services in Rural, Remote and Northern Areas

Respondents in rural and remote areas and the North pointed out that there are many issues particular to the needs of non-urban Canadians. They had specific concerns, including the following:

• the distance they have to travel to access services;
• their cultural and language needs, which may be different than those of people in larger cities;
• the drawbacks of group work in small communities and the need to maintain privacy;
• the general lack of police services (for enforcing orders, for example); and
• the difficulty that circuit courts have in gathering adequate information before ruling on family law cases (because the court is in a community for such a short time).

Respondents said that accessible legal advice, timely information, information in appropriate languages, and affordable services are needed in rural and remote areas. Respondents also felt that making referral and support systems more accessible would improve things.

Specific suggestions for addressing service needs in northern communities included the following:

• broadening the mandate of the existing Nunavut maintenance enforcement office to include all family law issues;
• developing a core group of community mediators to support separating and divorcing parents (some respondents said that the existing justice committees might be a source of mediators; others said that this would be inappropriate because the committee members are overburdened, not properly trained and are primarily older men who often do not fully understand the effect of separation and divorce on women);
• increasing the number of lawyers specializing in family law in remote regions of Canada; and
• increasing the number of trained Inuit social workers in Nunavut.

Delivering Services

Alternative methods for delivering services should be developed, particularly for educating parents. Suggestions included using the Internet, electronic kiosks, and existing community, medical and access centres to distribute information. There is also a need to improve the coordination and promotion of services, and the coordination among levels of government. The Child and Youth Network in Cape Breton was cited as an example of a successful service coordination project.

Some people suggested a "wraparound approach" to service delivery that would include enhancing a family's strengths, identifying areas for improvement and building on the family's needs. Family members would have access to community services through a single "window," and could decide from which agencies they would receive the necessary services.

However, respondents also recognized that funding constrains the delivery of existing and new services. Due in part to a lack of funding, many existing services rely too heavily on volunteers.

Using Terms Other Than Custody and Access

Respondents raised a number of points both in favour of and against using terms other than custody and access to describe parenting arrangements after separation and divorce.

Points in Favour of Change

Some respondents said that the current terminology contributes to conflict between parents and to the breakdown of access agreements. Other respondents supported changing the terminology because they felt it would do the following:

• be easier for ordinary people to understand and, therefore, less intimidating;
• reflect the concept of co-parenting, which is not currently the case;
• reflect the principle of the "best interests of the child";
• remove the implication that children are goods to be allotted to one parent or the other;
• emphasize the parents' roles in meeting their children's needs and doing what is right for the children, rather than addressing the parents' rights;
• have a strong impact on how courts and legal professionals approach family law issues in the future; and
• avoid giving the impression that there is a winner and a loser.

Points Against Change

Those who were against changing the existing terminology said that doing so would be a pointless exercise unless the underlying philosophy was also changed. They felt that changing the terminology would have no practical effect for people who are divorcing. Furthermore, they felt that Canadians recognize and clearly understand the terms custody and access. Respondents also emphasized that these terms need not have negative implications if parents were to suitably define them and establish a parenting plan and solve problems together.

Other points against changing the current terminology were as follows:

• It is effective for the vast majority of reasonable parents. Those parents who are unreasonable will continue to be in conflict regardless of the terminology in the law;
• A key cause of conflict is child support; therefore, this issue should be addressed directly;
• Changing existing terminology would undermine the current body of case law, which increasingly takes violence and abuse into account; and
• Changing the existing terminology would not effectively address parent-child relationship problems, because the law cannot compel a meaningful relationship between parents and children.

Criteria for New Terminology

Some respondents proposed criteria to guide the selection of any new terminology:

• The legislation should focus on meeting the needs of children. Some respondents suggested using a "safety template" to ensure that the children's emotional, physical and financial safety is paramount. Others pointed out that if the legislation is to mention the best interests of children, it should also mention factors that are not in children's best interests. In addition, all orders should be based on a careful examination of the family situation and parents' behaviour. Some respondents highlighted the importance of explicitly addressing violent situations in light of children's best interests, and suggested that recognizing the mother's role as primary caregiver ensures children's best interests are met by allowing for continuity in care and bonding. Others suggested that key issues such as violence, culture and language could be addressed in a preamble to the Divorce Act.
• The legislation should not presume that one form of parenting is ideal. Rather, the legislation should acknowledge the unique situation of each family by, for example, allowing effective responses to the needs of families experiencing violence or with one parent who is uninterested or uninvolved. The legislation should also allow for interim agreements while the parents develop long-term plans, and for the evolution of agreements over time as the children mature and their needs change. Some respondents suggested that agreements should include a specific review date to allow agreements to evolve; this review should include a third-party interview with the children.
• The terminology used in the legislation should be clearly defined. Some respondents suggested that it should also acknowledge that both parents are in theory equally capable of parenting their children, and it should allow the parents to clearly allocate parenting roles and responsibilities between them. The new terminology should clearly separate parental roles from the concept of physical custody. Any changes should improve on the status quo, rather than be change for the sake of change, and should be based on the popular understanding of the words rather than on fad terms or ones from other countries, which may not necessarily mean the same thing in Canada. Some respondents said that the legislation should strongly encourage parents to use alternative dispute resolution mechanisms when developing agreements and go to court only as a last resort.
• Respondents pointed out that changing the Divorce Act would affect other federal, provincial and territorial laws. They also noted that all public and private entities (such as insurance companies, schools and health care providers) should have to recognize and abide by these terms, once they and their implications for custody allocation are determined. The new legislation should be accompanied by a prompt and affordable method for enforcing agreements. Education and tools (such as lists, models and sample agreements) for children, parents and legal professionals would also be necessary to ensure successful implementation.
• Some respondents said the new legislation should address the effects of immigration status on divorce proceedings, explaining that some immigrant women accept less than ideal custody arrangements because they are afraid to be involved in the justice system and afraid of deportation.

In addition to these points, some respondents suggested that before changing the terminology further research be done on the parenting initiatives in Minnesota, Australia and New Zealand that take gender into account.

Other respondents argued that the only change necessary was to implement the 48 recommendations of the Special Joint Committee on Child Custody and Access.

Family Law in Northern and Aboriginal Communities

Respondents from northern and Aboriginal communities raised several concerns about the application of family law in their communities and the implications this has for both parents and children. In general, respondents said that southern law, regardless of terminology, is not appropriate for the culture and realities of northern life. For example, none of the proposed changes to the Divorce Act recognize traditional Aboriginal methods of caring for children after separation or divorce, such as adoption by grandparents.

Respondents made the following specific points:

• The concept of "best interests of the child" is inherently southern and therefore difficult to translate into northern Aboriginal languages;
• Using "custody and access" to set parameters on the relationship between parents and children is not congruent with Aboriginal culture;
• A large percentage of relationships in the North are common-law; therefore, any laws on the break-up of families and the future of the children involved must address these types of relationships;
• Power imbalances often occur when a relationship ends (especially crosscultural relationships); when one parent is Native and the other is not, the non-Native parent is generally more familiar with the legal system and, therefore, willing to use it rather than traditional methods;
• Canadian law assumes children to be property, which is contrary to the way in which Aboriginal people view children; and
• Many Aboriginal people in the North associate the court system solely with criminal justice matters and would not turn to it to resolve social or family law issues.

Finally, respondents from northern communities pointed out that, for them, a far greater concern than terminology is being subject to southern law without having the resources to implement it effectively.

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