Report on Federal-Provincial-Territorial Consultations on Custody, Access and Child Support in Canada
APPENDIX C: REPORT ON PRINCE EDWARD ISLAND WORKSHOPS
Workshops on custody and access were held in Charlottetown on June 5, 2001, and Summerside on June 6, 2001. A third consultation had been scheduled for June 4, 2001, in Montague, but was cancelled due to a lack of participants. In total, 27 organizations were involved in the workshops, along with one public participant representing the Francophone community. A list of the participating organizations is provided in tables 1 and 2.
The following topics were discussed:
- best interests of children;
- roles and responsibilities of parents;
- family violence;
- high conflict relationships;
- meeting access responsibilities;
- child support in shared custody situations;
- impact of access costs on child support amounts;
- child support obligations of a spouse who stands in the place of a parent; and
- existing child support guidelines
Participants highlighted their wish to have a youth consultation in Atlantic Canada for rural youth.
SUMMARY OF THE DISCUSSIONS
BEST INTERESTS OF CHILDREN
What are children's needs when their parents separate?
Participants identified needs (which, if unmet, would have a negative impact on the children) specific to the children, the parents, and ways in which parents could contribute to their children's well-being during the separation and divorce process.
Participants said that children need physical, emotional and financial safety. They also said that children need time to grieve the loss of their family. Children should have the freedom to express their feelings about the changes occurring in their lives. Children's best interests include their emotional health, and for this reason they should not be involved in the court-based divorce process if at all possible. However, it was also felt that children should be included in discussions about the future (when this is appropriate for their age and level of maturity), although not in a decisionmaking capacity. Children also need to maintain their connection to the wider community.
Children need resources (in both official languages) to help them cope with the divorce and the grieving process. Such resources might include mediation sessions in the schools, community organizations and professional counselling. In particular, one participant suggested a course on
"what to expect when your parents are divorcing." It was acknowledged that some of these resources currently exist, but that most people are unaware of them. Therefore, these resources needed to be better publicized, perhaps through the creation of an index that could be made available on-line.
Some participants said that a child advocate might be one way to promote the best interests of children throughout the divorce process. They also said that professionals in contact with children need to better understand the dynamics of violent relationships and their effect on children.
Participants also discussed the needs of parents going through a divorce. The needs of children are tied to the needs of parents because the children's response to divorce often reflects the parents' response. Two factors complicating this issue are the existing parent-child relationship and the potential for blended families.
Participants said parents should remain focused on the interests and needs of their children. Parents must also have their access problems resolved and at a minimal cost (free if possible), and have orders related to the divorce enforced. It was acknowledged that a mechanism is needed to help parents with this. Also, more legal aid for family law is necessary and there should be a 1-800 number for legal aid to make access to funding easier. Participants also said there were some issues that the law cannot manage (for example, emotional well-being), and that other resources are needed to support parents going through a divorce. It was suggested that the Family Conflict Referral Service would be a good starting point for parents wanting access to those services.
How Parents can Contribute to Their Children's Well-being
Participants offered suggestions about how parents could ensure that their children's needs are being met. They felt that consistency and stability are key issues in parenting, in daily routines and in the relationship between the children and each of their parents. Furthermore, it was felt that open and honest communication between parents, and between parents and their children, would be in the children's best interests. However, participants emphasized that children should be kept out of conflicts between parents.
Participants recognized that changing the Divorce Act could have an impact on existing funding for resources. They also asked where the funding would come from to pay for the resources and services they identified as important to meeting the best interests of children.
Codifying the Best Interests of Children
Participants differed on whether listing the factors in the Divorce Act that were in the best interests of children was a good idea.
Participants who said codifying was a good idea argued that the existing legal provisions do not address the access needs of non-custodial parents and are difficult to explain to parents. This is because of the large body of case law involved, which is neither easily accessible to the public nor easily understood by the public. Case law is also continuously evolving, which makes explanation even more difficult. Participants concluded that codifying these factors might improve the enforcement of all court orders relating to divorce proceedings.
Participants who felt codifying was not a good idea argued that case law is sufficient to bring these factors into play during proceedings. Furthermore, they felt that codification would limit the scope of discussion about best interests in the courts to only those items specified in the legislation. Finally, participants said that enforcement issues could be addressed without changing the existing legislation. Some participants also stressed that in most situations it is unnecessary to require parents to use services such as counselling or mediation, and that better publicity about available courses and services would serve much the same purpose.
ROLES AND RESPONSIBILITIES OF PARENTS
What factors enable good parenting after separation or divorce?
Participants said that better parenting after separation or divorce depends on the relationship between the parents, the parents as individuals, and the relationship between parents and their children. The group also discussed what to do when one parent is not interested in continuing to be a parent to their children after the divorce.
Participants said that the parents' relationship after separation or divorce should focus on the needs of the children. This could entail sharing parenting duties when possible, cooperating to solve problems and recognizing that the children need to spend time with both parents. Both parents should commit to a parenting agreement and respect the terms of any agreements coming out of the divorce proceedings. Participation in alternative dispute resolution would help parents develop these agreements and reduce dependency on the legal system and expensive lawyers. Parents need to respect the rules and routines established in the other parent's home and try to maintain a similar structure for the children in each home. That said, parents also must recognize that they cannot control what goes on in the other parent's home. Divorced parents must develop a healthy and non-violent relationship with one another. Participants recognized that the continued support of the other parent was an important factor in successful post-divorce parenting.
Parents as Individuals
As individuals, parents should be able to separate their role as parent from their former role as spouse. They must give themselves time to grieve for the demise of their relationship and recognize that their children continue to need both parents. Participants also identified economic security as an important factor contributing to good parenting after a divorce.
Participants said that parents need to recognize and accept their control over the divorce process. Should the situation arise, parents must be conscious of the impact of their second family on the children of their previous relationship.
The Parent-Child Relationship
Participants said that parents should build healthy and non-violent relationships with their children. Parents should be careful not to use the children as go-betweens or to manipulate the other parent. Children should be kept out of disputes between the parents and should not be involved in financial discussions (for example, about child support payments).
When One Parent is Uninterested or Uninvolved
Participants recognized that all of the above apply primarily when both parents want to continue to parent their children after the divorce. When one parent is absent or is uninterested in post-divorce parenting, that parent should not be forced into a relationship with the children because it would not be in the children's best interests. In such cases, the children will need help dealing with the absent parent's rejection. If the absent parent wishes to re-establish contact with his or her children, the visits should be supervised at first. Participants acknowledged that allowing the formerly absent parent to have access might be setting the children up for further rejection, but no one had any suggestions for avoiding that outcome.
Awareness of Existing Services
There was general agreement among workshop participants that the public is not aware of all the services available in P.E.I. to support parents during divorce, and that the discussion guide did not list all of the available services. The police, who are often on the front line when dealing with domestic conflict and issues, are also not aware of all the services. Participants who represented service organizations brought up the difficulty of advertising their services because they focus on an unpleasant topic, because of the need to respect client confidentiality, and because they lack the necessary financial resources. Participants also noted the problem of people expecting services where none exist, sometimes because they have seen television programs showing services available in other jurisdictions.
Improvements to Services
Central Point of Contact
Participants discussed the need to establish a central point of contact for referrals to services. The Community Legal Information Association, a Charlottetown agency, provides this service to the community. Participants said that schools would be a good point of contact for children, even though some parents react negatively to what they view as "interference" by the school. Schools are also already overstretched in terms of the resources they are trying to offer children.
Participants identified the following needed services:
- training in problem solving and other dispute resolution services;
- counselling to help parents understand the needs of their children and for people establishing blended families;
- access to legal aid, both an expanded service and a 1-800 number for easier access;
- a link between Child and Family Services and family therapists;
- supervised access and exchange centres; and
- French-language services.
The participants identified the following services that are needed for children:
- counselling to help them cope with their feelings and fears; .
- education to help them with their own future parenting endeavours; and .
- a system that gives children a voice throughout the process; a child advocate might fill this role.
One suggestion was to look at the Child and Youth Network established in Cape Breton in 1995. A similar initiative in P.E.I. would reduce duplication of services. Such an initiative could be housed on the government Web site or through access centres, which already exist.
Some participants also recommended that services be offered at a cost that reflects the reduced disposable income of most single parents. Participants also emphasized that services that may be appropriate for non-violent families could be dangerous for abused women and children.
Custody and Access
There was general agreement that the terms custody and access should not continue to be used. It was felt that custody is a confusing term because it is defined differently in different family law situations. Furthermore, the terms imply that children are property, create a power struggle, and foster an attitude of winners and losers. These negative connotations stand in the way of children developing strong relationships with both parents.
However, participants also made the point that moving away from the current terms might create confusion about child support issues. Furthermore, it was noted that option 2, which suggests broadly defining the term custody, retains the language used in the Hague Convention on the Civil Aspects of International Child Abduction, which is an advantage.
Shared Parental Responsibility
The term shared parental responsibility also raised some concerns. Participants said that the term is just as ambiguous as custody, and that in a worst-case scenario (for example, involving family violence) the term shared parental responsibility might not allow for the legal protection of the children from one of the parents. The word shared also implies property or ownership. Some participants said that this option would limit the decisionmaking powers of the primary residential parent, which they saw as a disadvantage.
Participants said the term shared parenting might imply a 50-50 parenting arrangement to some people and might, therefore, affect child support decisions. Other participants said that this terminology would make divorce disproportionately difficult for low-income women or others who would find it difficult to go through a lengthy court process to clarify a shared parenting arrangement.
Impact of New Terminology
In general, participants seemed to feel that what is needed is a new approach to the issue and that, although changing the vocabulary might help, it cannot accomplish the task alone. On the other hand, it was acknowledged that terminology has a strong impact on how courts function and approach issues, even when it does not affect how the general public perceives divorce and separation very much.
Criteria for Assessing New Terminology
Participants suggested criteria for assessing any new terms being considered. They said these terms should be clearly defined, which would be an improvement over the status quo, and take into account the worst-case scenario. Whatever the wording used, the responsibilities or tasks associated with parenting must be clearly attached to one parent or the other or both, according to their capabilities. It was felt that the "safety template" (that is, physical, emotional and financial safety) would be a good basis for developing new terminology.
Participants brought forward some alternative terms: parenting plan, which incorporates custody and access, along with parental responsibilities, and is forward-looking, and responsibility to the child, which focuses attention on the needs of children and takes the parents out of the equation.
Looking at the Law
The discussion around the options presented in the discussion guide echoed many of the points raised above about new terminology. In general, participants said that simply replacing one term with another would not improve the situation. A change of approach is needed, and new terminology in the law should stem from that approach.
Ensuring Children's Safety
Some participants suggested that the starting point of the law should be to ensure the safety and best interests of children (as opposed to a specific form of parenting, such as shared parenting). With the well-being of children as the goal, the people involved could then focus on how best to achieve this, and various options, including those presented in the discussion guide, could be discussed.
Other participants said that, without knowing how the terms were to be applied, it was not possible to discuss the various options. Some also mentioned that option 5 was unrealistic because it describes a situation that does not even exist in non-separated households.
How well does the family law system promote the safety of children and others in situations involving family violence?
Some participants said that P.E.I. had very good initiatives in place with area of family violence, but that more resources and funds were needed. Others said that the family law system does not promote the safety of children very well. In general, participants said that a more holistic approach, involving legal and community services and resources, might better meet the needs of children in situations of family violence.
Improvements to Services
Participants said that extended family services would help in situations of family violence. Education about family violence was also identified as a necessary resource to prevent further occurrences. Other points were that providing these services would require more funding and that services need to be made available sooner rather than later.
Participants said that service providers should err on the side of caution and try to protect victims while keeping in mind the possibility of false allegations (which, they emphasized, are rare). One way of doing this would be to set up an interim arrangement while an investigation takes place. Services providers also need to synchronize their activities to ensure that no one is overlooked or neglected.
Participants highlighted the need for mediation, counselling of both parents and children, and parent education programs. There was no agreement about whether these programs should be mandatory, although the point was made that forcing people into mediation is usually not effective. Participants also said that parenting courses should be more accessible (by providing child care and transportation, for example) and relevant (by having specific courses for parents in violent situations). Participants also noted that teenagers who have experienced family violence may require intervention to ensure that they do not become violent themselves. Finally, participants said that supervised access centres are needed.
Participants said that people in the wider community who come into daily contact with families should be better educated about family violence issues (including the Victims of Family Violence Act) and appropriate responses. Specifically mentioned were justice system workers and members of the Attorney General's staff. It was also noted that police intervention has successfully mitigated violence, and that community support is very important when resolving issues of family violence.
Looking at the Law
Resources for Legal Professionals
Participants suggested that judges should have more guidance on dealing with family violence. Judges need guidelines on the safety of children and a clear legal definition of abuse. The law should discuss children being "exposed to" violence rather than "witnessing" violence because this better reflects the reality of such situations and the harm they do to children. Participants also said that the law must acknowledge the potential for re-offence and for increasingly severe violence, and that a pattern of violence does not necessarily end once the couple has separated.
Participants pointed out that there is a only limited connection between family law and criminal law. Information on family violence that surfaces in criminal court is often not brought up during family court proceedings. A coordinated effort is required between the two areas: all information should be brought from criminal court to family court, not just the fact of the conviction.
Acknowledging the Impact of Family Violence and Protecting Children
Participants said that the courts must acknowledge that family violence has a negative effect on the parent, the children and the wider community. One way of doing this would be to allow victim impact statements to be read in family court.
Participants said there was a role for a child advocate to protect children throughout the court process, and also for psychological evaluation. Participants emphasized that, in their experience, false allegations of violence are very rare. Therefore, when allegations of violence are made, the judge should be able to make interim arrangements for the protection of the children immediately.
Discussing the Options
Regarding the options in the discussion guide, some participants said that family violence should be made a specific factor to be considered (option 3). Others said that a combination of options 3 and 5 could be used, because they are not mutually exclusive.
HIGH CONFLICT RELATIONSHIPS
How well does the family law system promote the best interests of children?
Participants said that the family law system does not promote the best interests of children when their parents have a high conflict relationship. This is because the law does not consider the children's needs. The parents return to court over and over again, which draws financial and emotional resources away from the children. In high conflict relationships, children are often used as pawns by their parents. Parents in high conflict relationships often do not recognize that their children have needs that should take priority over their own.
Improvements to Services
Participants said that parenting courses and family legal aid would improve the situation for children, as would publicity about and accessibility of other existing services. Mediation was also proposed as a needed service, but with the caveat that it may not be successful because the parents are addicted to their conflict and do not really want it resolved. The Positive Parenting From Two Homes book and program, which has been used successfully in P.E.I., was recommended and should be made more widely available.
Looking at the Law
Participants said that the law must keep the best interests of children as the priority. This raised the question of whether a high conflict relationship between the parents could in itself be considered a form of child abuse, and if so whether other related legislation should be amended.
The participants discussed the possible advantages and disadvantages of including precise definitions in the law, mandating the use of services (such as mediation and counselling) and explicitly defining areas of joint and separate responsibility. Some participants said that such clarity would reduce points of friction between parents, but others said that it would just create more opportunities for conflict. Another point was that codifying issues might cause more problems, because there would inevitably be cases that do not "fit" the legislation.
Some participants said it was more important for the law to make specific provisions for violent situations rather than for those that are considered high conflict. The participants noted that detailed court orders would help reduce the opportunities for misinterpretation and abuse of those orders.
It was pointed out that all of the options discussed have financial and human resource implications, since high conflict parents spend more time in court than others.
MEETING ACCESS RESPONSIBILITIES
Problems with Access
Most of the problems with access stem from difficulties enforcing either access or child support agreements. When a child support agreement is not enforced, the custodial parent may feel that denying access is the only way to force compliance. When access agreements are not complied with, there is little the courts can or will do to enforce them. Going to court is an expensive and lengthy process and may not resolve the situation, since access may be granted for a short period and then be withdrawn again, returning the situation to court. This process makes the discussion adversarial and increases the likelihood of conflict. At the same time, the access parent perceives the justice system to be unfair, loses faith in it and may turn to illegal options.
Another problem with the current situation is that the province only enforces those agreements that have positive financial implications for it. Child support agreements are rigorously enforced because they reduce the province's social security obligations. Access agreements are not as enforced because they have no financial impact on the province.
Improving the Process
Participants had several ideas about how the process could be improved to prevent problems concerning access responsibilities. An initial screening process could identify violence or substance abuse problems. Both parents should be educated about the importance of access to children and the children's right to see both parents. Children should have an advocate of some sort within the system, who should be supported by social workers and other agencies. Orders emerging from the process should be gender-neutral and enforceable (i.e. the system should commit to the order, as should the parents). Some participants also felt that a deterrent was necessary. Parents who denied access should be fined and the access parent should be given extra visitation time. Parents who do not use their access should also be fined.
Participants said that non-court options should be available for resolving access disputes. Mediation is one such option. However, mediation requires the willing participation of both parents, which may not always be possible. Mediated agreements, or agreements resulting from other non-court processes, could be filed with the court and therefore made legally binding.
One option for improving access enforcement would be to adopt the maintenance enforcement model of a monthly open house, so parents could come in to discuss their access problems. Either the parents would come to an agreement then or they would go immediately before a judge who was available to hear cases on that day.
Participants also discussed what to do when parents do not use the access they have been granted. Some participants said that this was an issue of power and control. Others questioned whether it is acceptable to strictly enforce the provision of access without strictly enforcing its use. Participants said that when a parent wishes to resume access to their children, the process should begin with supervised visits.
CHILD SUPPORT IN SHARED CUSTODY SITUATIONS
What factors should judges look at when deciding whether the shared custody rule applies?
Problems with the Current Process
Several problems are associated with the current system (which uses time as a deciding factor). These include the fact that non-custodial parents may demand more access time solely to reduce the child support that they pay, that custodial parents may deny access because otherwise they would lose needed income, and that sometimes parents can incur significant costs to exercise their access, even when that access is not for more than 40 percent of the time. Participants also noted that the situation becomes even more complicated in blended families.
Time as the Deciding Factor
Arguments in favour of using time as the deciding factor were that when a parent has custody more than 40 percent of the time, it implies that both parents are incurring costs associated with custody and that it is difficult to assess which expenses are directly affected by shared custody once a roughly 50-50 split is reached (the opportunities for reducing expenses when the children are with the other parent are not significant).
Arguments against using time as a factor were that child support is a financial issue only and that spending time with the children is a separate responsibility, above and beyond financial support. Using time as the deciding factor also implies that parents are buying access to the children. Participants asked whether reduced child support payments were an incentive for parents to spend more time with their children and whether this was appropriate. Some participants said that if access is being used on weekends, evenings and holidays, the non-custodial parent may meet the 40 percent time requirement while the custodial parent still has significant costs (for example, child care and lost earning potential). Other participants said that weekday costs (such as child care) were balanced by weekend costs (such as extracurricular activities). Finally, participants said that children might face unwanted restrictions in their activities on weekends and evenings if one parent is trying to ensure that he or she has custody 40 percent of the time in order to reduce the support payments. This situation could become worse when the children become teenagers and have their own outside relationships.
Cost as the Deciding Factor
The argument in favour of using cost as the deciding factor was that some parents incur significant access costs even though they do not have shared custody. If cost were the deciding factor, participants felt that judges would have to determine which costs were legitimate (for example, clothing, health care, recreation and education). It was also felt that the key to reducing child support should not be whether the non-custodial parent incurs costs, but whether the custodial parent's costs are reduced.
Finally, participants said that perhaps both time and costs should be considered. Time would be a used as a threshold only, after which expenses would also be taken into account. Participants said that whichever factor was used, it needed to be clearly defined in the law.
How should child support be determined under shared custody?
Participants said that whatever method is used to determine child support for shared custody arrangements, it should be predictable, consistent and simple so that people can reach their own agreements outside of court. Participants also said that leaving the decision to the judge's discretion was perceived as unfair because people in similar situations might get very different results. It was also felt that judges would benefit from having guidelines on which to base their decisions.
Alternative to the Current Method
One option participants suggested was to use the minimum standard of living for a child (derived from Statistics Canada information) as a basis for the child support amount. This would ensure a basic standard of living for the children in shared custody situations and would avoid the current problem of the receiving parent's standard of living decreasing to an unacceptable level because he or she received less child support. Another suggested option was to consider expenses as a proportion of overall income, rather than simply net expenses. This would recognize that one parent may have a significantly higher income than the other and, therefore, be able to spend more on the children.
On the subject of deviating from the existing guidelines in a shared custody situation, participants said that there should be a formula for deciding when to deviate, how to deviate and by how much.
Reviewing Results of Different Systems
Participants thought that a review of the systems across Canada might be helpful. Participants also said that the solution adopted must take into account that women usually experience a reduction in income after separation and incur most of the costs related to child care.
IMPACT OF ACCESS COSTS ON CHILD SUPPORT AMOUNTS
Should the child support guidelines be changed to introduce a new way to take into account unusually high or low access costs when determining child support?
Addressing the "High Access Cost" Situation
With regard to unusually high access costs, participants said that the existing guidelines were helpful but that high costs should be more explicitly included. Compensation for high costs should be tied to proof of access (rather than allowing the parent to claim high access costs, gain a reduction in the amount of child support paid, and then not use the access after all). One suggestion was that access and associated costs should be defined as a shared responsibility. Access would become an obligation of both parents and a right of the children. This would separate access from child support. However, it was also pointed out that having to bear some of the costs might affect the willingness or ability of the custodial parent to facilitate access.
Participants also suggested that the existing definitions of undue hardship and extraordinary expenses be clarified or better used by judges to ensure consistent judgments.
Addressing the "Low Access Cost" Situation
Participants said that low access costs resulted from parents not using their access. Currently, there is no way to compensate custodial parents unless they can prove undue hardship (see discussion above). A participant suggested that support orders could split some costs 50-50, which would mitigate some of the burden on the custodial parent.
Child Support Calculation Software
Participants said that situations involving both unusually high and low access costs should be reviewed periodically to take into account changes in access use or costs. Participants mentioned that child support calculation is useful when determining the standard of living of children in both households, including blended families. However, this software requires information from both households. Finally, participants said, in general, a combination of guidelines and judicial discretion was appropriate for dealing with these cases, but that judges also need to be better educated about family structures and the costs of separation and divorce.
CHILD SUPPORT OBLIGATIONS OF A SPOUSE WHO STANDS IN THE PLACE OF A PARENT
Should the child support guidelines be changed to provide more direction to parents and judges about whether a stepparent should pay child support, and how much he or she should pay?
Participants questioned whether the parent's primary responsibility should be to his or her "first" set of children or to all of the children, regardless of the relationship. Participants did say that the total paid in child support by all parents (per child) should not exceed the amount specified in the guidelines. Participants also noted that most people are completely unaware that they could be considered to be standing in the place of a parent or of the implications of that status. Finally, participants asked whether stepparents who are expected to pay child support are also allowed to have access to the children.
EXISTING CHILD SUPPORT GUIDELINES
Some participants said that changes in tax legislation have had an impact on the payment of child support. The previous arrangement, under which the paying parent could "shift" the tax burden of child support payments onto the receiving parent (who then paid tax in a lower bracket) was more beneficial for both parents than the current situation, under which this is no longer possible. Another point raised on this topic was that the amounts in the guidelines for incomes of more than $150,000 are not realistic and need to be revised.
Organizations Represented at the Charlottetown Workshop
- Canadian Bar Association
- Charlottetown City Police
- Community Legal Information Association
- Conflict Resolution Co-operative
- Corkum & Crozier, Accountants
- Department of Education
- Family Mediation Services
- Family Resource Centre
- Office of the Attorney General of P.E.I.
- P.E.I. Advisory Council on the Status of Women
- P.E.I. Department of Health and Social Services
- P.E.I. Fathers
- P.E.I. Transition House
- P.E.I. Women's Network
- Pownal House
- Private law practitioner
Organizations Represented at the Summerside Workshop
- City of Summerside Police Services
- Office of the Attorney General of P.E.I.
- P.E.I. Policy Advisor on the Status of Women
- Prince County Family Service Bureau
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