Report on Federal-Provincial-Territorial Consultations on Custody, Access and Child Support in Canada
MEETING ACCESS RESPONSIBILITIES
Many individuals raised concerns about meeting access responsibilities. Problems often arise when parents cannot agree on an access arrangement or when they fail to abide by the terms of their written agreement or court order. There have been many reasons cited for these problems, including a misunderstanding about what the agreement or order requires parents to do or a reluctance to accept the terms of the agreement or court orders from the outset.
Currently, there are several ways to deal with non-access and access denial. Some remedies include supervised access, mediation, court-ordered assessment reports, scheduled time to make up for lost access time, reimbursement of expenses, variation of custody orders, and fines or imprisonment to respond to deliberate, unreasonable non-compliance.
The topic of meeting access responsibilities was addressed through the following questions:
- How well does the family law system promote meeting access responsibilities?;
- How aware are you of existing services in your community? How could these services be improved?; and
- How can the family law system encourage meeting access responsibilities?
Respondents provided suggestions for measures that should be considered to encourage parents to meet access responsibilities.
In the opinion of some respondents, the family law system must encourage the development of workable parenting plans. A parenting plan that is accepted by both parents would encourage them to fulfil the agreed-upon access responsibilities. Both parents should agree to the plan and feel ownership. The courts must emphasize that parenting plans are flexible and are an agreement between the two parents that can change with their consent. The court system should become more user friendly so that if changes to the parenting plan were necessary parents could work together to revise it.
Further education should be provided to parents when they are having difficulty meeting access responsibilities. Resources should include the following:
- divorce management courses that would emphasize the parenting plan that was created, build on effective communication skills, and reduce conflict in the relationship;
- anger management courses for individuals having difficulty accepting the situation and creating hostility in the children's environment;
- education and counselling for children;
- a "parenting after divorce" course;
- information and training that enhance the father's role and encourage him to care for his children from birth;
- information and training that enhance and distinguish between our respective roles in life as parents; and
- information and training that acknowledge that when a couple separates, the former parents have issues to resolve and, as parents, must seek areas of agreement so as to shield the children from the effects of their conflict.
It was also suggested that counselling involving both parents could play an important role in ensuring that the children can spend time with both parents.
Counselling would help parents remain focused on the children's best interests and comply with the access and custodial arrangements designed to meet the children's needs. Counselling could also help parents recognize the value of cooperating with the other parent, improve communication, and learn to respect each other.
Promoting Meeting Access Responsibilities Through the Law
Many respondents said that the family law system is not effective in ensuring that parents meet their access responsibilities. This applies to situations when one parent denies access to the other parent, as well as when the non-custodial parent does not fulfil his or her access responsibilities.
Many respondents said that non-exercise of access was just as detrimental to children as access denial. However, most respondents also felt that forcing an uninterested parent to have access to the children would be unproductive and possibly even dangerous.
With regard to denial of access, some people said that while remedies may exist, few are effective or aggressively enforced. Specifically, many respondents indicated that court orders are easily ignored since follow-up action rarely occurs, allowing the parent denying access to continue to do so. Other respondents suggested that denial of access was not always a deliberate act, but rather was the result of circumstances caused by a family law system that was inaccessible and lacked flexibility, or was due to the children themselves (because of illness, for example, or their desire to take part in an activity).
Some respondents said that denial of access should trigger a screening for violence, as fear (either on the part of the custodial parent or the children) might be at the root of the problem.
Participants cited three aspects of the family law system that require attention, regardless of the motivation for access denial: enforcement, alternatives to the courts and supervised access centres.
Some respondents suggested that, when the custodial parent denies access, the only recourse is the police. It was recognized that the police are reluctant to become involved in access disputes, unless there is evidence of risk or harm to the children or one of the parents. The only option that remains is for the non-custodial parent to re-enter the legal system and attempt to seek relief from the courts. Respondents described this as time-consuming, expensive and generally not an appropriate way to meet the needs of the children and the parent, particularly when, at best, the custodial parent is warned to comply with the access order. In the view of some respondents, no meaningful action is currently available to parents to address the problem. It was however suggested that in such circumstances, the judge in an access case should monitor it from start to finish, and should be directly accessible, if access to a child is denied, upon simple application by the party denied access. The judge would thus exercise supervision over follow-up measures and would monitor parents' attitudes.
Some respondents argued that access to both parents is the children's right and that the custodial parent may not deny this right. Respondents suggested that there must be a clear and firm commitment to enforcement by the family law system, and that this could be demonstrated in several ways:
- imposing fines on the offending custodial parent;
- implementing a "broken promise clause";
- awarding mandatory make-up time, along with consideration of additional time between the non-custodial parent and the children; and
- giving serious consideration to imprisoning the custodial parent, when he or she does not pay the fines, does not provide make-up time, continues to deny access, or some or all of the above.
Other respondents suggested that imposing fines may be counterproductive, as it adversely affects the funds available to meet the needs of the children. Respondents also said that imprisoning a parent is a traumatic experience for children and, as such, is not in their best interests.
Alternatives to the Courts
Some respondents said that denial of access could often be avoided if accessible and affordable alternatives to the courts were available. They also said the following:
- Access orders can very quickly become out of date as a result of new interests, new relationships and new demands on the children's time. Children may become involved in activities, such as athletics or the arts, which require considerable time and effort. As a result of this change in lifestyle, the custodial parent may deny or reduce access to the other parent because the children have limited time available, particularly when the parent is also reluctant to go to court to amend the access order; and
- A lack of financial resources with which to effectively engage the court system and amend an access order can also result in the custodial parent deciding it is easier to deny access.
Respondents suggested that governments need to establish and actively promote alternatives to the courts, such as enforcement mediation programs or community panels of family experts who could assess and resolve access disputes in a fair, consistent and timely manner.
Others suggested recourse to a new impartial resource-a "case manager"-who could monitor the situation and provide a link between the family and the judicial system.
Supervised Access Centres
Some respondents said that the limited availability of suitable facilities for supervised access is also a concern. In some cases, the non-custodial parent can only have access when supervised, most often at a designated supervised access centre. However, safe and suitable supervised access centres are not available in many communities, especially in rural, remote and northern areas. When there is a lack of facilities, non-custodial parents often find themselves with no way to provide safe and sustainable access.
Many respondents said the services were crucial to help ensure parents meet their access requirements.
Some respondents said that governments and community agencies should do a better job of building awareness of their family services:
- Many people are unaware or unsure of the services provided by the province, territory or community. Even practitioners are poorly informed about the services available;
- In rural, remote and northern areas, access support services are largely unavailable;
- Services needed to be advertised and promoted within each community;
- A service database and/or pamphlet should be developed describing the community and government services;
- Kiosks could be set up in high-traffic locations in communities, such as libraries, social service centres, medical centres and shopping locations;
- Information should be provided in language that is easy to understand and used within the area, along with clear directions for how to contact the service agency; and
- The Internet was suggested as an appropriate means for distributing information; however, some respondents felt that it was not available to the majority and that alternatives, such as pamphlets and posters, were better options. Television programs and government advertising campaigns were also suggested.
In addition to discussing the services already offered by governments and communities, participants suggested ways to improve current services and provide new services that would help parents meet their access responsibilities.
Initial Screening Process
It was suggested that having an initial screening or family profile done at the outset of divorce could help parents trying to meet their access responsibilities by determining the most appropriate services for them. The screening would also help identify inappropriate services such as mediation for high conflict situations.
Many respondents said that ongoing access mediation services would help parents remain focused on the best interests of their children, as follows:
- Mandatory mediation might reinforce the importance of following agreed-upon access orders;
- A mediator would be helpful in situations that could be resolved outside the legal system. Mediators should also be attached to supervised access centres;
- The Special Masters program in California should be assessed for its potential application in Canada. A "special master" is someone who can deal with family issues but practises outside the court;
- The legal system would be reserved for high conflict relationships when a mediator was unsuccessful or would not be a reasonable alternative; and
- The mediator could help parents create workable custody orders to reflect changing circumstances.
Mandatory Review of Parenting Arrangements
When parenting arrangements are created at the onset of separation they may not always be workable or successful in all situations. Some people suggested that there should be a mandatory review of the parenting arrangements after a set time to confirm that the arrangement is still suitable for the situation and is in the children's best interests.
Supervised Access Centres and Resource Centres
Some respondents said that more supervised access centres are needed. Parents need a safe and comfortable place for their access time that is also in the children's best interests. One way to promote the use of such centres might be through "Dad and Me" programs. These have proven so far to be unsuccessful, but more promotion might provide fathers with the encouragement that they need to use these centres to meet their access requirements and responsibilities. It was also suggested that such centres be officially accredited.
Some respondents said that resource centres should be developed that would provide parents with a comfortable and safe location for seeking advice about and clarification of the available services. A resource centre could also be an exchange location for parents. Some people made positive reference to the Alberta model with regard to parenting responsibilities. Others suggested that service providers should hold open houses so that the public could become more familiar with their services. They could also hold open houses specifically for other professionals involved in access-related issues.
When access requirements are not being met, there must be a more efficient method of enforcement. There is much confusion about who is responsible for ensuring that access agreements are being adhered to. Parents often contact police and lawyers to enforce access requirements but neither is able to help. Alternatives were suggested, including the following:
- a parenting or enforcement coordinator/officer to help parents resolve access issues;
- a monthly open house for parents so parents can discuss their access problems with officials; parents could come to an agreement with this person's help or sit in front of a judge to consider the problem and come to a quick solution;
- legislation that clarifies the role of police in enforcement action and explains that it is not in the best interests of children for police to be involved in custody and access disagreements; and
- mandatory police enforcement only when violence may be a concern.
Child Advocate Worker
Child advocate workers could work with the children to determine their preferred custodial arrangements. The advocate would then work with parents and the legal system, if necessary, to confirm that the children's best interests are being addressed. This would reduce the number of situations in which access is denied due to the children's unwillingness.
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