Report on Federal-Provincial-Territorial Consultations on Custody, Access and Child Support in Canada
APPENDIX C: REPORT ON YUKON WORKSHOPS
Two workshops on custody and access were held in Whitehorse, on June 11, 2001. Five lawyers attended the morning session, and nine Yukon social service providers and representatives of non-governmental organizations attended the afternoon session.
The following topics were discussed:
- best interests of children;
- roles and responsibilities of parents;
- family violence; and
- meeting access responsibilities.
SUMMARY OF THE DISCUSSIONS
At the beginning of the discussions on the "best interests of children" it was noted that, in Yukon, this is the paramount consideration in section 1 of the Children's Act (RSYT 1986 c.22 sec.30). In addition, a recent amendment to the Act now clearly identifies grandparents as being among those who can apply for custody of or access to children.
Some participants agreed that this change was especially important in Yukon because grandparents in First Nations communities are more involved in raising grandchildren than grandparents in non-Native communities. It was noted that the Grandparents' Rights Association was pleased with the change.
BEST INTEREST OF CHILDREN
What are children's needs when their parents separate?
Participants agreed on a number of issues concerning children and their needs during parental separation. Participants agreed that in normal cases (when abuse does not exist) children want to be with both parents.
Participants said that a process is needed to allow both parents to provide the attention and care their children need. It was suggested that in some cases of violence the law should not "empower" either parent because the children then become pawns.
Maximum Contact with Both Parents
Participants at both workshops felt strongly that children should have maximum contact with both parents (subject to safety and violence issues) when their parents separate. Participants said maximum contact should, unless clear evidence shows otherwise, result in a shared parenting arrangement, and should be in place from the outset. However, participants were very clear that maximum contact should be balanced with the need to provide a stable home for the children.
Joint Custody Arrangements
Participants suggested that parents need to be flexible with schedules in joint custody arrangements. For example, for each parent to insist on equal time with the children is not always in the children's best interests. School activities, the location of school, the location of parents, and illness are factors that can affect parents' time with children. Participants argued that flexibility and good communication are essential if joint custody arrangements are to be responsive to children's activities and needs. Participants said that "joint custody" means a number of things to parents that are not always in the best interest of the children. For example, parents will often demand that time spent with children be allocated equally.
Participants agreed that mediation is less confrontational and better addresses the best interests of children. Participants said that the law should be designed to facilitate the mediation and settlement of parental break-ups outside the courts, and that the law should not merely be a "backdrop" or alternative to a mediated process. Most participants in both workshops agreed that mediation should be mandatory, as is the case in some American states.
Participants agreed that the most effective mechanism for addressing children's needs is parent education. Education programs can demonstrate and emphasize the impact of separation and divorce on children. The lawyers cited studies that have shown that when parents take parent education programs they are more successful in mediation. The program For the Sake of the Children is currently in use in Yukon. An important component of the program is communication skills. The participants discussed making such programs mandatory, and noted that mediation is currently mandatory in Alberta. The lawyers felt educational programs for lawyers and judges would also be beneficial, especially with regard to mediation and alternative dispute resolution.
Mobility Issues: Moving Out of the Yukon Territory
Many people living in Yukon are not originally from the North; therefore, there is a lot of migration to and from Yukon. Participants agreed that because of this migration, mobility is very important for Yukon parents who separate and divorce. For example, when parents separate or divorce, one parent often decides that he or she no longer wants to or cannot remain in the territory. One parent might have to leave for employment reasons. The implications are that children will have a long-distance relationship with at least one parent and "maximum contact" will be difficult. Participants did not agree about which should carry more weight: the best interests of the children or the rights of parents to get on with their lives.
ROLES AND RESPONSIBILITIES OF PARENTS
What factors enable good parenting after separation or divorce?
Participants said that one of the most important aspects of good parenting after separation or divorce was ex-partners maintaining a civil relationship. In addition, participants listed maturity, good judgment and their ability to separate their issues from their children's issues as important factors in good parenting. The participants also suggested counselling for parents to promote good parenting after separation.
Dealing Independently with Separation and Parenting Agreements
The lawyers who participated in the morning workshop advocated changing the process of creating separation and parenting agreements. They argued that the separation agreements and parenting agreements should be divided into two documents and dealt with through two independent processes. This would allow an ongoing parenting relationship to be more quickly settled while aspects of the separation agreement are being negotiated. Participants felt this was important because often separation or divorce cases in Yukon involve small family businesses, which can complicate and prolong negotiations.
Parenting agreements should be forward-looking documents that deal with an ongoing and dynamic relationship for parenting. Participants suggested that parenting agreements should be re-examined regularly.
Focus on the Needs, Interests and Rights of Children
Participants said that the needs and rights of children should be paramount to foster better parenting. Participants also said that moving the legal process of separation away from an adversarial approach would create a more positive environment for parenting after separation. Such a change might deter some parents from using their children as pawns in an attempt to get a better settlement from their ex-partners. Participants agreed that mediation could contribute to good parenting because it addresses children's interests, and parents seldom disagree about what their children need.
Awareness of Existing Services
Greater Use and Access Issues
Participants felt that Yukon has adequate services to support families experiencing separation and divorce; however, people do not always use these services. Some participants felt that mediation is one service that should be expanded. Many of the participants also felt that mediation should be mandatory, at least for an initial session.
Improvements to Services
A Non-adversarial Approach
Participants in the lawyers' session felt that lawyers can often be a problem when they become involved in separation and divorce cases. One participant said that some lawyers have a "winning and losing" mentality, and focus primarily on how to get the "best deal" for their clients. In such cases, the participants felt that lawyers frequently aggravate the problem.
The lawyers said that a less adversarial system, but one that still allows individuals going through a mediated separation or divorce to have an advocate acting on their behalf might work better than the current court system. As an example, participants mentioned lawyers in Alberta who will support clients in mediated or other non-confrontational processes, but will not take their case to court.
Using Positive Language
Participants felt that language is problematic. Many terms, such as sole, sole custody and access, have negative connotations and are adversarial. As alternatives, participants preferred such terms as shared parenting, living arrangements, joint parenting, and primary or main residence. The lawyers also felt that consistent terminology should be used in the child support guidelines because having different terms in the guidelines and the legislation would be confusing.
Looking at the Law
Replace the current legislative terminology: introduce the new term and concept of parental responsibility.
The lawyers who participated in the morning session felt that option 4 was the best option, because it gives judges the broad ability to define in each case what parental responsibility should be. Participants also felt that option 4 provides the most flexibility for all concerned, and that it would still allow for children to have maximum contact after the parents' separation.
The participants in the afternoon session did not identify an option that they preferred. Rather, they said that terminology and language was not that important because most of their clients were not familiar with what the terms mean.
Participants noted that in option 2 there should be a number of additions made to the open-ended list that describes custody, such as the responsibility for meeting children's social, recreational, and current educational needs.
How well does the family law system promote the safety of children?
The participants discussed the fact there is no Yukon legislation that requires that violence be considered when the courts make parenting decisions. A participant noted that there is a law in Newfoundland and the Northwest Territories requiring a judge hearing a custody or access application to take family violence into account. Some participants felt that the court system does not allow a person to enrol in a program, such as one on anger management, until the matter is disposed of. (A representative from the Yukon Department of Justice clarified that it is not the court system that disallows enrolment and restricts participation, but the programs themselves.) This is a problem, participants said, because people must sometimes wait months before receiving the help they need.
Looking at the Law
The participants discussed the issue of family violence and whether it should be a factor in determining children's residence or parental access. Some participants felt it must be considered. The participating lawyers also discussed the need for clear definitions of family violence (for example, a clear distinction between domestic violence and family violence). Some of the lawyers felt that it was important to add, "as witnessed by the children" to one question in the discussion guide (i.e. establish a rebuttable presumption of limited parental contact and a limited decisionmaking role for a parent who has committed family violence as witnessed by the children). Some participants felt that if a parent is violent toward his or her spouse when the children are not around, then the question needs to be asked whether that parent can still be a good parent or at least a good non-custodial parent.
Looking at Services
Participants agreed that the Yukon government needs to provide easier access to services for people devastated by a sudden break-up. Although participants did know that the services do exist, they felt that the public is not always aware of them and that the government needs to do a better job of making them readily available. Participants agreed that when families break up, three things result: poverty, conflict (sometimes violence) and diminished parenting. Participants pointed out that it is difficult for parents to take care of their children when they are not getting the mental health support they need for themselves. If there were a better way to provide parents with support, they might be able to function better as parents. One suggestion was that Family and Children's Services, a branch of the Yukon government's Department of Health and Social Services, pay for private mental health counselling.
Participants also felt that mandatory settlement conferences at some stage would be beneficial. The lawyers agreed that the legal system should facilitate a process whereby the legal system is not required for decisions to be made. This could be achieved through settlement conferences, mandatory education and mandatory mediation, among others.
MEETING ACCESS RESPONSIBILITIES
Looking at Services
Participants agreed that the family law system does not successfully promote the meeting of access responsibilities. The law is not very well enforced, neither when one parent denies access to the other, nor when parents do not fulfil their access responsibilities. The participants felt that it was important to raise these issues and discuss them in the context of the child support guidelines. It was agreed that money and the economics of child support are very important and should not be overlooked in this consultation.
Participants felt that a better long-term approach might be to allow the children to make their own choices about access. These choices could be made through a process of supervised access. Participants noted that children are influenced and will try to please the custodial parent most of the time. Some participants felt that children need time to develop their own opinion, free from the influence of others.
One of the services identified as not available in Yukon was a facility for supervised access.
Participants also spoke of the need for grandparents to have access to their grandchildren.
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