Final Federal-Provincial-Territorial Report on Custody and Access and Child Support

ENDNOTES

[1] Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, to the Family Law Dinner, Ontario Bar Association, Toronto, Ontario, January 24, 2002.
[2] As a result of a restructuring of policy committees at the direction of Deputy Ministers Responsible for Justice, the Family Law Committee will cease to exist with the completion of this report. Its work will be carried on under a new Federal-Provincial-Territorial Committee to be called the Co-ordinating Committee of Senior Officials–Family Justice. This new committee will bring family law policy and family law services discussions together in one forum, replacing both the Family Law Committee and the Child Support Guidelines Task Force.
[3] Appendix E contains a complete list of the recommendations made in this report.
[4] See Williams (2001), where research using the 1995 General Social Survey shows that adults who experienced their parents' separation or divorce as children were less happy and less close to their parents as children compared with adults who did not experience their parents separation or divorce. See also Stewart (2001), where he reports that children of separation and divorce are at greater risk of negative outcomes than are children in intact families. Possible negative outcomes include poor academic achievement, poor social relationships, conduct difficulties, emotional difficulties, substance abuse, and poor adult relationships.
[5] For demographic and social data and trends, see Child Support Team (2000). Another good source for general family data and demographic trends is Vanier Institute of the Family (2000).
[6] See Marcil-Gratton and Le Bourdais (1999), where analysis of data from the first cycle of the NLSCY shows that social and familial trends are changing. For example, more couples are opting to live in common-law relationships and are not getting married; more adults are going through separation and divorce; and more children are experiencing the separation or divorce of their parents and at younger and younger ages. See also Statistics Canada (1998a).
[7] Marcil-Gratton and Le Bourdais (1999). See also Statistics Canada (1998a).
[8] Marcil-Gratton and Le Bourdais (1999). See also Statistics Canada (1998a).
[9] See Stewart (2001), where his review of the literature identifies a number of risks for children of separation and divorce, and a number of factors that contribute to the positive adjustment of children, including the sensitivity and commitment of the parents to their children, and on-going relationships between both parents and child. See also Bernardini and Jenkins (2002), where the researchers review the risk and protective factors for children of separation and divorce. They identify four main risk factors-non-residential parental absence, troubled parent-child relationships, economic disadvantage, and parental conflict-and conclude that the primary risk factor is exposure to inter-parental conflict. Concerning factors that help protect or insulate children from the negative outcomes associated with separation and divorce, they conclude that some children do not show negative adjustment problems because of pre-existing factors-warmth in the parent-child relationship, positive emotionality-that help them cope with the stress of separation and divorce.
[10] Statistics Canada (1998b). The NLSCY measured four dimensions of parent-child interaction: hostile/ineffective interaction (e.g., how often parents tell children they are bad or not as good as others); punitive/aversive interaction (e.g., how often parents raise their voice or yell at children, and use physical punishment with children); consistent interaction (e.g., the proportion of time parents make sure the child follows a command or order, and enforces a punishment after warning the child); and positive interaction (e.g., how often parents laugh with children, play sports, hobbies and or games together). See also Stewart (2001), and Bernardini and Jenkins (2002).
[11] Canada. Special Joint Committee on Child Custody and Access (1998).
[12] Department of Justice (2001).
[13] See IER (2001). There is also an Executive Summary available under the same author. Both the report and the executive summary are available through the Family, Children and Youth Section of the Department of Justice Canada.
[14] The Special Joint Committee's recommendations are reproduced in Appendix A.
[15] Government of Saskatchewan (1998).
[16] Government of Saskatchewan (2000).
[17] Putting Children's Interests First was the paper-based component of the national consultations held in the spring of 2001 (See Department of Justice Canada, 2001).
[18] Alberta (2000).
[19] Department of Justice Canada (2002).
[20] See IER (2001) Appendix B for results from the Aboriginal consultations.
[21] See Gallagher-Mackay (2002).
[22] Department of Justice Canada (2001). For results from the consultations, see IER (2001).
[23] Most statutes use the phrase "best interests of the child" to express this principle. Some use terms such as the "welfare of the child."
[24] In some provinces (e.g., BC and Alberta) "guardianship" includes both guardianship of the person and guardianship of the estate.
[25] Saskatchewan, The Children's Law Act, 1997, s. 2(1).
[26] Shared custody is defined for the purposes of child support in s. 9 of the Federal Child Support Guidelines to be "where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 percent of the time over the course of a year."
[27] See Ministry of Attorney General of British Columbia (1999).
[28] See Appendix B for an overview and summary of the research carried out in these jurisdictions.
[29] The Special Joint Committee (1998) argues for the need for further research in many areas.
[30] See, e.g., Bailey (2001), and Gilmour (2002).
[31] See, e.g., Marcil-Gratton and Le Bourdais (1999), and Le Bourdais, Juby and Marcil-Gratton (2001).
[32] See, e.g., Bala et al. (2001), and Stewart (2001).
[33] See, e.g., IER (2001), and S.A.G.E. (2000).
[34] See, e.g., Paetsch et al. (2001a) and (2001b).
[35] Appendix D provides a bibliographic list of the research reports prepared under the custody and access project.
[36] For results from consultations, see Paetsch et al. (2001a), Paetsch et al. (2001b), IER (2001), and S.A.G.E. (2000). See also Cossman (2001), where the author discusses options for reform and cautions against putting too much faith in legislative reform.
[37] United Nations General Assembly (1989).
[38] Most statutes use the phrase "best interests of the child" to express this principle. Some use terms such as the "welfare of the child."
[39] The Special Joint Committee's recommendations are reproduced in Appendix A, see recommendation 16.
[40] See Department of Justice (2001) for the full list of factors.
[41] IER (2001).
[42] See Appendix B for a summary of the research from these international jurisdictions, as well as for references to the research reviewed.
[43] The new bill was introduced in June 2001 in the French National Assembly. See Appendix B for a summary of the research from these international jurisdictions, as well as for references to the research.
[44] The Special Joint Committee (1998: 27). The Committee's recommendations are reproduced in Appendix A; see especially recommendation 5.
[45] See e.g., consultation results in Paetsch et al.(2001a), and Paetsch et al. (2001b). See also Cossman (2001).
[46] See, e.g., the Special Joint Committee recommendations 3, 5, 6, and 25. The recommendations are reproduced in Appendix A of this report.
[47] Cossman (2001: 35).
[48] See IER (2000).
[49] Canada. Special Joint Committee (1998: 42).
[50] See Cossman (2001).
[51] See, e.g., Goubau (2000).
[52] Under its Automated Court Order project, the Court of Queen's Bench of Manitoba (Family Division) requires a set of standard clauses be used in most orders. The quoted orders are standard clauses for those kinds of parenting arrangements.
[53] National statistics on custody orders and custody arrangements are not available in Canada. However, research estimates show that the most common custody arrangement is by far sole mother custody. See, e.g., Marcil-Gratton and Le Bourdais (1999), where the research indicates the following approximate breakdown of custody types: 81 percent sole mother; 7 percent sole father; 13 percent shared custody. Other research shows similar results. For example, research over the last three years from the Survey of Child Support Awards provides the following similar approximate breakdown of custody types: 81 percent sole mother; 8 percent sole father; 5 percent shared; 5 percent split, and 1 percent other (See Hornick, et al., 1999, Bertrand et al., 2000, and Bertrand et al., 2001).
[54] See, e.g., Moyer (2002).
[55] See IER (2001).
[56] See Appendix B for an overview of international research.
[57] See, e.g., IER (2001), S.A.G.E. (2000).
[58] See, e.g., O'Connor (2002b), where the researcher argues that services to families and children would likely have a greater impact than legal reform. See also Cossman (2001).
[59] See, e.g., results from consultations with professionals in Paetsch et al. (2001a) and (2001b). See also S.A.G.E. (2000) for results from focus group testing on directions for reform.
[60] See IER (2001) for results from the national consultations.
[61] See Bala et al. (2001).
[62] The Special Joint Committee on Child Custody and Access recommended that high conflict cases be identified early and streamed into a different, undefined, process than the normal or average couple going through divorce. See Appendix B where the Committee's recommendations are reproduced, especially recommendation 32. Stewart (2001) argues that the social science research does not lend support to the idea that we could effectively identify, stream and treat high-conflict cases at this time.
[63] See Stewart (2001), or Gilmour (2002) for a general discussion of problems with early identification and streaming of these cases.
[64] The Special Joint Committee's report, drawing on expert witness testimony, estimates that between 10 to 20 percent of divorces are high-conflict (see Canada; Special Joint Committee 1998). Research (see Stewart, 2001) similarly estimates that 10 to 15 percent of separations and divorces are high-conflict. It should be noted that these are estimates of the number of cases that experience high conflict in the process of separation and divorce. These cases are usually identified as being high conflict because they use more court time and court resources, often returning to litigate again and again. In the research literature, high-conflict cases may, but do not necessarily, involve violence. High-conflict cases therefore should not be equated with family violence cases.
[65] See Stewart (2001) for an overview of the effects of high-conflict divorce on children. See Bernardini and Jenkins (2002) for an assessment and relative importance of risk and protective factors for children of divorce.
[66] Stewart (2001: 2).
[67] Stewart (2001: 2).
[68] Stewart (2001: 14).
[69] See Stewart (2001), and Gilmour (2002).
[70] See Stewart (2001), and Gilmour (2002).
[71] See Bessner (2002) for an overview of the legal literature on "voice of the child" in the context of separation and divorce proceedings.
[72] See, e.g., s. 31(2) of The Child and Family Services Act and Family Relations Act of New Brunswick, where the statute lists as a best interests factor "the views and preferences of the child, where the views and preferences can reasonably be obtained."
[73] See Bessner (2002), where the various methods are discussed.
[74] See Bessner (2002).
[75] See IER (2001), especially Appendix A where results from the youth consultation are presented.
[76] The Special Joint Committee's recommendations are reproduced in Appendix A; see recommendation 3.
[77] See Bailey (2001) for an overview of access enforcement options.
[78] Research (Bailey, 2001, and O'Connor, 2002a) suggests that, while neither access denial nor non-exercise of access are widespread, non-exercise of access by the non-custodial parent seems to be more of a problem.
[79] See Bailey (2001), and O'Connor (2002a).
[80] Advisory Board on Family Law: Children Act Sub-Committee (2002).
[81] See Bailey (2001) for an overview of available remedies. See also O'Connor (2002a).
[82] Thomson v. Thomson, [1994] 3 S.C.R. 551, 6 R.F.L. (4th) 290; and W. (V.) v. S. (D.), [1996] 2 S.C.R. 108, 134 D.L.R. (4th) 481, [Droit de la famille-1763, 19 R.F.L. (4th) 341].
[83] See Bailey (2001) and O'Connor (2002a) for a discussion of non-exercise of access and legislation concerning access.
[84] Divorce Act, s. 6.
[85] See, e.g., Cossman (2001), where the author points out the limitations of legislative reform and argues that any reform should be accompanied by programs and services for families. See also, e.g., O'Connor (2002b), where, in the context of providing children with an opportunity to view their preferences and the needs of children experiencing separation and divorce, the author argues in favour of providing services and program, supports for parents and children.
[86] See Department of Justice Canada (2001), for a copy of the consultation document.
[87] IER (2001: ii – iii).
[88] See Bourke (2001).
[89] See IER (2001).
[90] See Canadian Facts (2001), where the research included questions on parent's use of services. Parents use a range of service providers including lawyers and mediators, and different types of services ranging from supervised access services, to parenting plans, to parent education courses. Overall, 75 percent of parents with an arrangement reported using some sort of help or service in the process of separation. The most often used service was that of a lawyer (53 percent). In terms of helpfulness, however, lawyers received the lowest rating.
[91] See Sieppert et al.(2000), where the evaluators report that 86.8 percent of parents thought the information provided in Alberta's Parenting After Separation Seminars would help them deal more effectively with their children, and 79.6 percent thought the information would help them deal more effectively with the co-parent. The percentage of parents who reported at least a moderate level of conflict dropped from 64.5 percent to 40.8 percent after having completed the program.
[92] McKenzie and Guberman (2000: 146).
[93] The Special Joint Committee's recommendations are reproduced in Appendix A; see recommendation 10.
[94] See, e.g., Queen's Bench Act, s. 44.1, Statutes of Saskatchewan. Other jurisdictions with such requirements include British Columbia, Ontario, and Nova Scotia.
[95] See Ministry of Attorney General of British Columbia (2000).
[96] See, e.g., Bernardini and Jenkins (2002), and O'Connor (2002b), where the authors behind the research argue in favour of programs aimed at children and children's needs.
[97] See, e.g., the Canadian Institute of Child Health's "Parent Kit," a home study course on parenting skills, effective practices and how children develop and cope (available at http://www.cich.ca on the "links" page). Other community or professional organizations or governments may be interested in building on this idea.
[98] See, e.g., the Special Joint Committee's recommendation 31 (reproduced in Appendix A), where the Committee recommends that "the provinces and the territories and the relevant professional associations develop accreditation criteria for family mediators and for social workers and psychologists involved in shared parenting assessments."
[99] See, e.g., O'Connor (2002b).
[100] See I.E.R. (2001), and S.A.G.E. (2000).
[101] See Federal-Provincial-Territorial Family Law Committee (2000).
[102] See Depner (1993).
[103] See, e.g., the Family Mediation Canada website (www.fmc.ca), where they provide a list of mediators by province and territory.
[104] Concerns about possible power imbalances have been raised in many of the research projects undertaken through the custody and access project (see, e.g., Stewart, 2001).
[105] The Special Joint Committee's recommendations are reproduced in Appendix A, see recommendation 14.
[106] See the Quebec Code of Civil Procedure, Articles 814.3 and following.
[107] McKenzie and Pedersen (2001).
[108] Federal-Provincial-Territorial Family Law Committee (2000).
[109] See Birnbaum and McTavish (2001).
[110] See Birnbaum et al., 2001; and Birnbaum and Radovanovic, 1999.
[111] See Praxis (2000).
[112] See Bailey (2001) and O'Connor (2002a) for legal and social overviews of the research on access, access denial, non-exercise of access and access enforcement. The research suggests that access problems, such as access denial or non-exercise of access, are usually not isolated problems.
[113] The Special Joint Committee's recommendations are reproduced in Appendix A, see recommendation 19.
[114] See Bailey (2001) for a discussion of the limits of using legal remedies and suggested approaches to access enforcement.
[115] See Bailey (2001) and O'Connor (2002a) for legal and social research overviews of child access.
[116] The Special Joint Committee's recommendations are reproduced in Appendix A, see recommendation 22.2.
[117] See IER (2001).
[118] New Brunswick (Minister of Health and Community Services) v. G.(J.),[1999] 3 S.C.R. 46.
[119] Payne (1974).
[120] The Special Joint Committee's recommendations are reproduced in Appendix A, see recommendation 22.1.
[121] The Children's Law Act, 1997, S.S. C-8.2, ss. 2(1) and 3(2).
[122] Family Relations Act, R.S.B.C. 1979, c.121, ss. 1(1), 25(1), and 27(5).
[123] Children's Law Reform Act, R.S.O. 1990, c. C 12, s. 20 (4).
[124] These provisions, in varying language and specifics, are found in the legislation of British Columbia, Manitoba, Ontario, New Brunswick, Newfoundland and Labrador, Nunavut, Northwest Territories, Prince Edward Island, Saskatchewan, and the Yukon. Alberta's legislation is somewhat different. Quebec's presumption (Article 525 of the Civil Code) is limited to birth during marriage or within 300 days after dissolution of marriage. Nova Scotia does not have similar legislative provisions expressly setting out a presumption of paternity.
[125] See, e.g., Bessner (2002) and O'Connor (2002b) for a good review of issues on providing children with the opportunity to voice their views.
[126] National statistics on custody orders and custody arrangements are not available in Canada. However, research estimates suggest that almost one-third of separated parents do not have a formal arrangement for the care of the children. See, e.g., Canadian Facts (2001) where the findings, based on a small telephone sample of separated or divorce parents, show that at the time of separation 26 percent of parents reported having no arrangement, 30 percent reported having an oral arrangement, 32 percent reported having a court order specifying the arrangement, and 12 percent reported having some other type of written arrangement. See also Marcil-Gratton and Le Bourdais (1999), where their analysis of the NLSCY data shows that, even five years after separation, over 50 percent of children are not under a court ordered agreement.
[127] A review of parenting plans, including a compendium of parenting plans, has been undertaken as part of the research support for the custody and access project. The report is still in draft form. When complete, it will be made public through the Department of Justice Canada, Family, Children and Youth Section.
[128] In Nova Scotia, another reason spouses may require a divorce is to enter into a "domestic partnership" under the Law Reform (2000) Act of Nova Scotia.
[129] McKenzie and Pedersen (2001).
[130] See Manitoba's "Automated Court Orders in Family Cases" project, which can be found at the Manitoba Courts Internet site at http://www.manitobacourts.mb.ca.
[131] See Department of Justice (1999) for a copy of the technical consultation document and response booklet.
[132] See Canada, Standing Senate Committee (1998).
[133] See Department of Justice (2001) for a copy of the national consultation document, and IER (2001) for the reported results.
[134] See Department of Justice (2002) for the federal government's report on the workings and operations of the Federal Child Support Guidelines, which suggests that the guidelines have met their objectives and have been successful.
[135] See Marcil-Gratton and Le Bourdais (1999).
[136] Divorce Act, s. 2(2).
[137] See IER (2001).
[138] The page numbers refer to the page numbers in the Committee's report where the recommendation is made.
[139] See Washington Rev. Code, s. 26.09.184.
[140] See Washington Rev. Code, s. 26.09.004.
[141] See Lye (1999).
[142] The Children Act 1989 Chapter 41.
[143] See Davis and Pearce (1998).
[144] Statistics obtained from UK Court Services, December 6, 1999.
[145] See Rhoades et al. (1999).
[146] See Rhoades et al.(1999), and Dewar et al. (1999). An updated version of the interim report by Rhoades and colleagues is also available, see Rhoades et al. (2000).
[147] The phrase parental responsibility, which is taken from the Convention on the Rights of the Child (article 18), is also found verbatim in the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children of October 19, 1996.

As one can see from the Explanatory Report of this Convention, the phrase "covers responsibility concerning the person of the child, responsibility concerning the child's property, and generally the legal representation of the child, regardless of the name given to the institution (parental responsibility, parental authority, paternal power, and also guardianship, wardship, legal administration, custody). The rights and obligations referred to are those of the father and the mother under the law, with a view to raising their children and ensuring their development, where the custody, education, establishment of residence or supervision of the person of the child (in particular with regard to the child's relationships) is concerned. The term powers refers more specifically to the representation of the child. This responsibility is usually exercised by the parents, but it may also be exercised in whole or in part by third parties, under conditions set by national legislations, in the event of death, incapacity, inability or unworthiness of the parents, or abandonment of a child by its parents." Actes et documents de la Dix-huitième session (1996) [Proceedings and documents of the eighteenth session (1996)], Volume II, Protection des enfants [Protection of children] (printed separately as the report of Mr. Paul Lagarde) p. 40.
[148] Council of Europe, Committee of Ministers, Recommendation No. R (84) 4 on parental responsibilities, adopted on February 28, 1984, and explanatory memorandum. Strasbourg: Council of Europe Publishing, 1984.
[149] Speech of the ministers responsible, Projet du Gouvernement relatif à la réforme du droit de la famille [Government bill on family law reform], presented by the Prime Minister on June 11, 2001, and the press document concerning the reform of divorce, Une réforme pour reconnaître le droit au divorce, pour pacifier le divorce, pour construire un « après » [A reform to recognize the right to divorce, to pacify divorce, and to construct an "after"] (October 11, 2001). See the Web site of the French Ministry of Justice at http://www.justice.gouv.fr/presse/conf091001a.htm.
[150] Ibid.
[151] The commission chaired by Ms. Théry (I. Théry, Couple, filiation et parenté aujourd'hui : le droit face aux mutations de la famille et de la vie privée [The couple, parentage and parenthood today: the law in the face of changes in the family and in private life], Éditions Odile Jacob and La Documentation francaise, 1998), and the commission chaired by Ms. Dekeuwer-Défossez (F. Dekeuwer-Défossez, Rénover le droit de la famille : propositions pour un droit adapté aux réalités et aux aspirations de notre temps [Renewing family law: propositions for law adapted to the realities and aspirations of our time], La Documentation française, 1999).
[152] Report of the Théry Commission, p. 190.
[153] Report of the Dekeuwer-Défossez Commission, p. 74.
[154] In this regard, we note that the new provisions very clearly favour the family mediation route. For example, article 373-2-10, para. 2 introduces an incentive measure by providing that, "In order to facilitate the parents' search for an exercise of parental authority based on consensus, the judge may propose mediation measure, and after obtaining their consent, may appoint a family mediator to proceed with the measure." Moreover, article 373-2-10, para. 3 provides that the judge may "order" the parents to "meet a family mediator who will give them information about the purpose and process of this measure."
[155] Report of the Dekeuwer-Défossez Commission, p. 85.
[156] This rule conforms with the principle of the "friendly parent," well-known to Canadian law and established by the Divorce Act (s. 16(10)).
[157] Report of the Dekeuwer-Défossez Commission, p. 85.
[158] Article 227-5 of the French Criminal Code.
[159] Article 227-7 of the French Criminal Code.
[160] Divorce Act, s. 2(1).
[161] Divorce Act, s. 16(3).
[162] Divorce Act, s. 16(1), (3), (4) and (6). Section 16(1) provides that a court of competent jurisdiction may make an order respecting the custody of and/or access to any or all children of the marriage. Section 16(3) provides that where an application is made under subsection (1), the court may make an interim order regarding the matters listed in subsection (1). Pursuant to section 16(4), a court may make an order granting custody of, or access to, any or all children of the marriage to any one or more persons. Section 16(6) enables the court to make an order for a definite or indefinite period or until the "happening" of a specified event and may impose such terms, conditions or restrictions in connection therewith, as it thinks fit and just.
[163] V.L. v. D. L. (2001), 206 D.L.R. (4th) 325.
[164] Domestic Relations Act, s. 59 and Provincial Court Act, s. 18.
[165] Provincial Court Act, s. 19.
[166] The Family Maintenance Act, s. 1.
[167] The Family Maintenance Act, s. 39(4).
[168] The Family Maintenance Act, s. 39(5).
[169] The Child and Family Services Act, s. 1.
[170] The Family Maintenance Act, s. 39(1).
[171] The Family Maintenance Act, s. 39(1).
[172] The Child and Family Services Act, s. 78(2).
[173] Children's Law Reform Act, s. 20(1).
[174] Children's Law Reform Act, s. 20(2).
[175] Children's Law Reform Act, s. 20(5).
[176] Children's Law Reform Act, s. 47.
[177] Custody Jurisdiction and Enforcement Act, s. 3(5).
[178] Custody Jurisdiction and Enforcement Act, s. 3(1).
[179] Custody Jurisdiction and Enforcement Act, s. 4(1).
[180] Goubau (2000: vi).
[181] Goubau (2000: 20).
[182] Quebec Civil Code, Article 605.
[183] Quebec Civil Code, Article 514.
[184] Mireille D.-Castelli and Dominique Goubau, Précis de droit de la famille, Presses de l'Université Laval (2000), p. 225-226.
[185] Children's Act, s. 31(6).
[186] Children's Act, s. 60(1).
[187] Children's Act, s. 60(2).
[188] Children's Act, s. 31(4).
[189] Children's Act, s. 61(2).
[190] Children's Act, s. 33(1).

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Final Federal-Provincial-Territorial Report on Custody and Access and Child Support

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