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



Workshop leader Dominique Goubau
Secretary Hélène Fortin




This topic was presented differently from how IER had planned it in order to take into account the problems that are specific to Quebec, and because the workshop mainly brought together specialized practitioners as well as representatives of agencies involved in the field. It was therefore unnecessary, for example, to verify the participants' knowledge of the existence of services. The questions below, then, are those set out in the Quebec discussion guide. After each question, the report presents the participants' main responses and positions, as well as any consensus reached during those discussions.

Question 1.1 Are people who separate ordivorce sufficiently informed about the consequences thatresult from exercising parental authority?
Question 1.2 How can we provide betterinformation on this subject, if it is needed?

Participants agreed unanimously that people who separate or divorce are poorly informed about the consequences of their subsequent parental roles as well as about the exact legal ramifications of custody orders. People do not understand exactly what it means to award custody to one parent. Often parents believe that an order for sole custody strips the non-custodial parent of his or her role with the children. All participants identified this as a serious problem that needs attention urgently , while realizing that it is difficult to contact people easily.

It is interesting that this assessment is shared by the parents who met in the focus groups organized by Léger Marketing. Most parents associated the notion of sole custody with the idea of excluding the non-custodial parent from the children's upbringing.

In its written submission, the Ordre des psychologues du Québec explained that the legal jargon on this question creates a great deal of confusion in the minds of the people concerned.

One participant emphasized that the links between federal and provincial legislation are complex and that there needs to be a common thread between the two, as well as better correspondence between the situations of parents who are married and those who are not.

All participants agreed that major efforts must be made to better inform the parties and to educate them about exercising their parental roles (through, for example, parent groups or seminars on co-parenting). These information and education initiatives should also target professionals (such as social workers, psychologists, mediators, lawyers and judges).

One participant stressed the gap that can exist between common and expert knowledge. He suggested that what he calls "the subjectivity of experts (psychologists, sociologists, anthropologists and legal scholars)" should be studied, since it constitutes an important bias in conflict resolution and reorganizing parental roles.

All participants supported the suggestion of introducing into the legislation a lawyer's duty to discuss with his or her clients the redefining of parental roles after separation or divorce and the appropriate information and education services that exist.

They also agreed there should be compulsory information and education sessions about the redefining of parental roles, the effects of separation on children and, in general, the legal and psychological effects of separation and divorce. This essential information should be given in co-parenting seminars before proceedings begin, since people are often badly informed or misled by friends, relatives or acquaintances. Moreover, because parents who are under pressure or in psychological distress quickly forget the information they are given, it is all the more important that the information delivery be well organized, and that the information itself go beyond mere legal information. However, one participant was against compulsory information sessions, because women who are victims of spousal violence are sometimes led to make decisions that are contrary to their own and their children's best interests in these situations.

In its submission, the Chambre des notaires emphasized that "mediation is undeniably the best service that currently exists for responding appropriately to the need for information," and that all couples who are going through a breakdown of their relationship should be directed to this service.

Several participants stressed the importance of using instructional tools that make the information easy to understand and reaching people in their own neighbourhoods, in places such as the local community service centres (CLSC). One participant felt the role of education should be particularly emphasized for the people who, in principle, will receive legal aid.

Among the information tools mentioned were:

In its written submission, the Barreau du Québec suggested, among other solutions, replacing the current mediation information session with one on co-parenting.

Question 1.3 Should parents who areseparating or divorcing be encouraged to stipulate precisearrangements for exercising parental authority in theiragreements? Should this be compulsory?

Participants were in complete agreement on the principle that precise arrangements for exercising parental authority should be stipulated. The degree of precision depends on the level of conflict. The more contentious the relationship, the more precise the court order should be, particularly in the case of spousal or family violence. Everyone agreed that when parents are obliged to specify and describe the way their roles will be organized, they are also obliged to think about them and anticipate possible difficulties.

In its written submission, the Ordre des psychologues suggested that parents could be made to present a plan for apportioning parental responsibilities that clearly defines how they will share in all aspects of their children's lives. Exceptions should be made, however, in cases of spousal violence or in high conflict situations, for which other arrangements should be devised.

Certain participants said it is important to avoid having situations and arrangements that become "set in stone" the moment they are developed. Therefore, agreements and court orders need to stipulate ways to revise the parenting arrangements.

Several participants thought the clearer the arrangements are, the more chance the agreements and court orders have of being respected.

Participants suggested that stipulating ways of revising parental responsibilities in agreements, and anticipating moments in the children's lives when a re-evaluation of the situation would normally occur, are important factors in reducing conflict.

In addition, participants saw the obligation to stipulate post-separation arrangements as a response to question 1.1, which concerns the fact that separated and divorced people are currently poorly informed about the real consequences of the breakdown on the roles of each parent.

However, in its written submission, the Barreau du Québec stated that parenting plans should not be compulsory. In some cases the parents cannot agree on certain questions, so it is better not to bring these up in order to avoid aggravating the situation.

It is interesting to note that members of the youth focus groups who had lived though separation emphasized that the young people themselves attach great importance to parenting plans. The final report on these sessions from Léger Marketing, which ran the sessions, mentioned this as one of the main points raised by the youth: "A custody agreement that is clearly defined in terms of residence and access schedule with both parents has a reassuring effect on the child and is considered a definite advantage by the majority of participants." These focus groups demonstrated that vague agreements can contribute to deteriorating relationships and reduced contact between the children and the non-custodial parent (usually the father).

Question 1.4 What services should be offeredto encourage this kind of agreement between parents?

Some participants suggested that it would be appropriate to expand already existing mediation services. Separated or divorced parents should know that they can return to mediation to settle co-parenting problems and that the usefulness of mediation does not end with the initial arrangements made after separation.

The representative of a fathers' association stressed the difficulties that many men currently encounter when they look for help or information at institutions such as the CLSCs. He criticized the shortage of help specifically for divorced and separated fathers, as well as the lack of financial resources for associations who do help fathers.

The Ordre des psychologues suggested that the delivery of information should be improved and said that people who need and want this information are usually in a highly emotional state, which must be taken into account. The Ordre recommended that a model agreement be made available (in flyers and publications), as is done with the information on calculating child support payments. It also suggested that various preventive measures be taken: wider distribution of information, production of documents explaining what is at stake in separation, distribution of a video in which children tell their stories, and encouragement of voluntary mediation. When parents do not put forward a plan, the court should set up a general framework for sharing responsibilities and send the parties to mediation to work out arrangements. In high conflict cases in which parents cannot come to an agreement, the Ordre des psychologues argued in favour of establishing services based on a therapeutic approach (parenting seminars, special seminars for violent or very high conflict situations, support and therapy groups for children and parents, therapeutic mediation in extreme cases, and appointing experts to evaluate parenting abilities).

Participants suggested the following services:

Participants particularly stressed the importance of ensuring the quality of the practitioners who provide information and organize educational sessions, which is unfortunately not the case now.

In raising the issue of budgetary constraints and the resulting difficulty of setting up the needed services, participants emphasized that questions must be asked about budget priorities, given that everything that is spent on prevention will save public money, ultimately ("prevention, not postvention").

The representative of a fathers' association raised the issue of the link between parenting and the workplace, saying that it is often difficult for a man to point out at work the constraints related to his role as a father. Another participant stressed the importance of improving understanding of the differences between men and women.

Question 1.5 When parents cannot agree,should the court stipulate precise parenting arrangements inthe court order or should it continue to rely on the generaland non-specific principle of "joint exercise ofparental authority," the current practice in Quebeccivil law.

Everyone agreed that it is very important to make precise parenting arrangements, because without them parents risk not understanding the actual legal effects of their court order. On the other hand, the Barreau du Québec emphasized in its written submission that if parents "cannot agree on the joint exercise of parental authority and on sharing parental responsibilities, only a statement of general principle should be included in the court order, unless the parties ask the court to settle a very specific situation."


Question 2.1 Do you think using the termscustody and access is problematic orirritating?
Question 2.2 Should these terms be retainedor replaced?

With regard to terminology, it became clear that a majority of participants not only found the current terms irritating and problematic, but also saw replacing them as an urgent need. Most participants thought that a change in terminology would result in a change in thinking and ways of doing things. They stressed that terms can be effective tools that lead people to think about solutions. These participants thought that the current terminology does not reflect the idea of co-parenting.

Two participants did not find the current terminology problematic or think that different terms would improve things. They felt the meaning of the terms should be better explained.

The Barreau du Québec said that the French term droit de visite should be replaced by droit d'accès.

The following criticisms of the current terminology were expressed by the majority of participants:

A consensus was reached on the need to eliminate the expression "le tribunal condamne…" [ "the court condemns…"] from decisions and court orders in family matters.

The focus groups organized by Léger Marketing demonstrated that parents are generally opposed to the current terminology and that they favour expressions that reflect the importance of children benefiting from two parental models, maternal and paternal. The majority of parents in the focus groups preferred the expressions parental responsibility and sharing of parental responsibility.

Question 2.3 If necessary, should otherexpressions such as sharing parentalresponsibilities, usual place of residence,organizing living arrangements, etc. be used?

Regarding the choice of new terms, several participants mentioned the importance of using legitimate sociological terms, because they must become securely fixed in people's minds. People should be wary of short-lived, trendy words that come from elsewhere.

Everyone agreed to the need for uniform terminology in order to avoid creating confusion in people's minds about the consequences of relationship breakdown, separation agreements and custody orders. Uniformity does not mean that the government is trying to impose a single model for organizing parental roles after the separation. Furthermore, any new terminology must be appropriate for all age groups.

Abolishing the terms custody and access would force the courts to be more specific about ways of reorganizing parental roles.

Participants made a number of suggestions for terms they felt would better reflect what people go through. However, no consensus was reached on any of these expressions:

In its written submission, the Chambre des notaires stated that because the terms custody and access evoke conflict, mediators have for some time opted for the expression sharing parental responsibilities, which includes, in particular, the "child's usual place of residence."

Sub-question (not on the questionnaire)
Do you prefer the expression parental authority orparental responsibility?

All but one of the participants thought that the expression parental authority is out of date, that it refers to a power relationship and gives the impression that one of the parents (generally the father) is losing something. They would prefer that it be replaced by the expression parental responsibility, which is more clearly tied to the notion of sharing. One participant declared in addition that the expression parental authority has the effect on fathers of creating a sense of detachment.

One participant thought, on the other hand, that the two expressions must coexist, because they reflect the two very different dimensions of the parenting role. Parents can and must exercise authority over their children, because they are responsible for their upbringing.

The parents who participated in the focus groups generally felt that the expression parental authority was outmoded and that parental responsibility seemed more modern.


Five options were presented for the participants' evaluation.

There was an immediate consensus that options 1 and 2 should be rejected.

The representatives of the three fathers' groups opted for option 5, the presumption of shared parenting. They said that the current rejection of fathers ought to lead to the introduction of this "positive discrimination."

All the other participants were in favour of option 3 or 4, or something in between. Several favoured the solution that maintained both parents' power to make decisions, while emphasizing the importance of specifying in the order the ways in which this parental role would be carried out, whatever decision is made about where the children are to reside.

Outside of these fundamental differences in opinion between the fathers' groups and the other participants, it is clear that all participants, in rejecting options 1 and 2, were in favour of a solution that gives concrete expression to the involvement of both parents. All participants agreed that the co-parenting principle must be the basis for the solution that is ultimately adopted. There were, however, differences of opinion about the degree of involvement of the parents.

Those who preferred option 3 stressed that it placed a priority on children's interests and, when compared to the other options, would make it possible to find solutions on a case-by-case basis. They noted that this option would allow the court to define specific terms and conditions for the parenting roles when necessary. Thus the Barreau du Québec stressed in its written submission that option 3, which reflects the situation in Quebec law (except that the expression parental authority is replaced by parental responsibility), is the most functional. Those who preferred option 4 put emphasis instead on the importance of stipulating precise arrangements for exercising parental responsibility in all cases, seeing in this encouragement for parents to think about the implications of their parental reorganization. This is the opinion of the Chambre des notaires, for example, which in its written comments submitted that option 4 would make it easier to take account of the fact that, in most cases, the sharing of parental responsibilities is not strictly equal.

In the focus groups organized by Léger Marketing, a majority of parents were in favour of a solution giving priority to an almost equal sharing of the children's time between both parents, unless it is shown that this is not an appropriate solution considering the children's interests and the material conditions of each parent. They stressed that this course is only possible when parents demonstrate that they can communicate extremely well with one another.

It emerged clearly from the youth focus groups that young people think that day-to-day parenting decisions should be made by the custodial parent (almost always the mother), but that major decisions (about school choice and health, for example) should always be made in concert by both parents and, at the very least, with the approval of the non-custodial parent.


Question 4.1 Should the notion ofchildren's interests be more clearly stated in thelegislation? If so, why?
Question 4.2 If this is necessary, whichaspects of children's interests should be specified in alegal definition?

The Barreau du Québec's representative suggested that the notion could be defined better, but that its general nature must be maintained to enable the court to adapt to particular situations. According to the Barreau, a definition with too much detail would prevent a nuanced application of the notion of the children's interests, as well as the evolution of the concept.

Most participants shared this opinion and offered suggestions for a better definition. Some thought that the definition could include a reference to the parental roles assumed prior to separation, and mentioned the importance of maintaining links with siblings and grandparents.

In its written submission, the Ordre des psychologues pointed out that the definition of children's best interests should be based on several important principles: maintaining a positive image of the other parent and an attitude of respect during contact, avoiding having a particular parent become significant to the children, not making the children witness the parents' conflicts, and equal sharing of time with the children.

Two participants suggested that it is very difficult to get a consensus on the precise meaning of children's interests, but that a definition could at least stipulate that it is in children's interests that decisions concerning them be made in a climate of cooperation, respect and dialogue, rather than conflict.

"A climate of respect and not disparagement is necessary, because it is clear that what damages the children is conflict. We have to work on a climate of give and take."

This suggestion reflects certain concerns expressed by the young people in the youth focus groups. The final report from Léger Marketing highlights the following observation: "Putting aside personal differences and putting the child's interests first arose spontaneously from the group as the most important suggestion for improving custody agreements."

Question 4.3 Must the "maximum contact" and "friendly parent" principlesremain unchanged in the law?
Question 4.4 Should the "maximumcontact" and "friendly parent" principles bejust two factors among many, thus enabling the courts tobalance these principles with other important criteriarelated to the children's best interests?

Consensus was reached on the idea of keeping the principles in the legislation, while replacing the expressions the most contact and maximum contact with maximizing significant relationships.

However, certain participants said these principles should be two among many, which would make it easier to take into account high conflict or spousal violence situations. On the other hand, other participants thought that a presumption that favours maintaining contact must exist, since studies show children generally benefit from that.


Question 4.5 Regarding spousal and/or familyviolence as criteria to consider in determining custody andaccess, should the law:
Theme 1. The Current Situation

The representative of the Regroupement provincial des maisons d'hébergement et de transition pour femmes victims de violence conjugale said that the law must be changed to include a clear statement that children bear the consequences of violent situations and that judges must take this into account. She did not go so far as to say, however, that a violent situation must automatically mean there should be no more contact. Judges must use their discretion, but must also investigate whether they are dealing with a situation of family violence. This participant felt that introducing a rebuttable presumption is an interesting idea. She emphasized the importance of clearly distinguishing family violence from spousal violence and not restricting the notion to physical violence or simply to cases in which there has been a criminal conviction. She regretted, in this connection, that frequently civil courts do not take a situation of spousal violence into consideration, even though there has been criminal conviction. She also stressed the fact that violence can be economic, verbal, psychological or physical, and the need to introduce measures and locations for supervision, so that access can take place safely for children and parents. The representatives of the Ordre des psychologues du Québec and the Fédération des unions de familles shared the opinion of the Regroupement provincial des maisons d'hébergement et de transition pour femmes victims de violence conjugale on these issues.

All the other participants, however, felt that the whole situation, including the history of spousal and family relationships, should be taken into consideration. They feared that singling out family and/or spousal violence in the law obscures other problems, such as parental alienation or false accusations of physical and/or sexual abuse, for example, and gives the impression that spousal violence is more important than any other problem. Several participants said that the law currently makes it possible to respond appropriately to violent situations, but that practitioners, including judges, must be more sensitive to this reality and better educated about it. In its written submission, the Barreau du Québec explained that subsection 16(9) of the Divorce Act (which stipulates that the court may take into account the misconduct of a party when that conduct is relevant to the ability of the party to act as a parent to the child) is an adequate legal tool to enable the courts to respond to situations of spousal violence.

The representatives of the fathers' groups stressed the almost insurmountable obstacle of accurately defining the notion of violence in a legal text. They also emphasized the issue of violence towards men.

Theme 2. Services

The representative of the Ordre des psychologues said that specialized seminars on spousal violence and children who witness spousal violence, and services to support and accompany children who are victims or witnesses of violence, should be included among the measures to consider. Talking is good for children and generally reduces the trauma they are experiencing.

A fathers' group representative regretted that services are so unbalanced, that it is much more difficult for a father to obtain effective help than it is for a mother.

All the participants denounced the glaring absence of government budgets and financing. This constraint affects current services and casts serious doubt over all future projects that need to be established if there is ever to be hope of responding effectively to this important problem.

One participant stressed the importance of creating protected places for children through "family shelters." Timing is often important and children can be deprived of one or the other of their parents simply because there is a lack of services. Another participant said that in cases of violence and conflict, channels that are both safe and swift need to be considered, which implies fast-tracking of legal proceedings in particular.


Question 4.6 In high conflict situations,should the law:

From the outset, participants had difficulty linking a high conflict relationship and spousal violence in the broad sense. One participant suggested that the concern was with cases of conflict between parents who have gone beyond the limits and forgotten the best interests of their children. She suggested that in such cases the judge should order compulsory therapeutic mediation for the parents. Another participant suggested that the judge should impose co-parenting seminars. One way or another, all the participants agreed that a response to these situations must be found through non-judicial means.

The participants thought that most situations of separation or divorce are fraught with conflict, large or small. It is very difficult for the law to distinguish between small conflicts and large ones, and a legal definition risks causing greater conflict because the definition must be interpreted. As a result, a practitioners must be aware of the implications of long-lasting conflict. In other words, participants again placed importance on information and education (i.e. the importance of making services available).


Question 5.1 Do you think the family lawsystem currently takes sufficient account of children'sopinions in decisions about family reorganization that affectthem after separation or divorce?
Question 5.2 Have you any suggestions aboutpossible measures or services that would ensure that thechildren's perspective would be taken into considerationin custody and access decisions, whether with regard tomediation approaches or negotiation between the parents or asa part of the judicial process?
Question 5.3 In what circumstances shouldchildren be provided with the services of legal counsel oranother representative?
Question 5.4 Do you think children should beable to be represented by a lawyer in custody proceedingsand, if that is necessary, under what conditions? What roleshould the children's legal representative play?

One participant emphasized that the law is currently well formulated, but that its application differs from one judge to another. For example, certain judges refuse to hear children, while others hear them as a matter of course. This lack of uniformity in applying the law causes a problem. In addition, although the children's opinion is one factor judges take into consideration, it varies with the situation, particularly the ages of the children.

Another participant thought that a uniform application of principles is an illusion, because situations are so different. In addition, although it is generally true that children want to express their ideas, the burden of having to do so must not be imposed upon them. On the other hand, it is important that when children are heard, it is done in such a way to protect them. In its written submission, the Chambre des notaires also stressed that while judges and parents need to consider children's opinions, this should not form the basis of decisions made concerning them.

One participant emphasized that the law indeed does provide for children to be heard, but that the process needs to be speeded up, because waiting is very harmful to a child who learns that he or she will have to speak before the court in several weeks or months.

In its written submission, the Barreau du Québec maintained that children's perspectives should be given more weight and that if children are questioned by a judge without anyone present, this testimony should be recorded on tape.

Several participants said that the best place to hear children is in mediation, so children can express themselves before the mediator as well as their parents. In its written submission, the Chambre des notaires suggested that children may be heard by the mediator without the parents present. The Chambre thinks this kind of measure, which should be optional and free, would respond to many parents' wishes.

One participant deplored the lack of a critical approach by representatives of the legal system, including lawyers and judges, when they are dealing with children's opinions.

Another mentioned a study of legal practitioners in the judicial district of Montréal that revealed that very often children are not seen by practitioners: neither the youngest, because they are too young, nor the oldest, because the practitioners do not know what to say to them. Once again, the absence of training for practitioners was raised. One participant added that this criticism could be directed at many social service practitioners. In its written submission, the Ordre des psychologuesparticularly stressed the importance of informing and educating practitioners on ways to let children have their say.

It emerged clearly from the youth focus groups led by Léger Marketing that many young people feel they should be consulted more by their parents, both when a breakdown occurs and afterwards, and that this would improve the outcome for children during the post-separation and post-divorce reorganization. Young people feel they should be better informed about the difficult relationships their parents have, without being involved in their conflicts. On the other hand, they are very hesitant about choosing the custodial parent themselves because they fear the impact this might have on their relationship with the non-custodial parent. It is interesting to note that young people who were adolescents (14-15 years old) when the breakdown occurred think that children should not be able to choose the custodial parent before the age of 15, perhaps even 18. On the contrary, focus group members who were younger (10-11 years old) when their parents broke up are more open to the idea that a younger child can participate actively in choosing the custodial parent. The majority of the young people came down in favour of children being able to express their point of view to a neutral third person (a mediator, for example), stressing, however, that this third party should not come from the legal system (a judge or lawyer) but from the world of human relations (a psychologist, social worker or school psychologist).