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

A. FAMILIES TODAY

Over the course of a child's lifetime, his or her family may form, break up and re-form.  The initial family unit may consist of one or both parents and one or more children.  Often, grandparents, aunts, uncles or other relatives form an extended family to care for the child.  Laws and services directed at the care and upbringing of children seek to recognize and accommodate the diversity of family forms in which children live.

Children are society's future.  Their health and well-being should be a primary concern.  Policy-makers need to consider how to respond to research and experience that demonstrates children's well-being can be harmed by separation and divorce, and the restructuring of the family.[4]  Problems faced by children during family restructuring seem to be increasing.  Social change has resulted in an increase in single-parent families and blended families and the potential for children to face multiple family restructurings.[5]

Recent surveys of family life have revealed four main trends.  First, most children are born into two-parent families, but an increasing number of these parents are not married.  Second, children are increasingly experiencing life in a single-parent family and doing so at an earlier age than previously.  For example, an analysis of data from the National Longitudinal Survey of Children and Youth (NLSCY) shows that one in four children born in the early 1970s saw their parents separate by age fifteen.  Just over ten years later, one out of four children born in the early 1980s had experienced their parents' separation by age ten.  By the late 1980s, almost one in four children born in 1987 to 1988 saw their parents separate by age six.[6]  Third, children born to common-law couples face a greater risk of experiencing parental separation than do children whose parents are married.[7]  Fourth, more children are subject to multiple family structures.  This is so because children are younger at the time of the first family separation and their parents are more likely to re-couple (perhaps more than once) with other adults, some of whom will also have children from another relationship.

An increasing number of Canadian children live with only one parent, while the other parent lives in another family structure.  Many children have parents who are not married.  A recent analysis of NLSCY data shows that in the early 1960s over ninety percent of all births were to two married parents who had never cohabited before marriage.  In contrast, by 1993–94, less than forty percent of all births were to married parents who had never cohabited before marriage, and twenty percent of children were born to unmarried parents.  This trend is strongest in Quebec, where only twenty-three percent of births were to parents who married without first living together, and forty-three percent of births were to common-law couples.[8]

Children, regardless of their family structure, need stable and nurturing environments, protection from negative influences such as conflict, poverty and violence, and positive relationships with at least one adult.[9]  Problems faced by a family prior to separation, such as poverty or ineffective parenting, may often be aggravated by divorce or separation.  Parents who are emotionally or financially challenged by the separation or divorce may feel bewildered, angry, victimized or diminished by the changes in the family structure.  Children may feel that they are responsible for the family breakdown, isolated from previous support systems and emotionally depressed.

The NLSCY shows that children at risk (e.g., low socio-economic status, low parental education, family dysfunction, prenatal problems, and children of single parents) have fewer behavioural problems when raised with positive and consistent parenting.  Parenting style, particularly a hostile parenting style, has a more negative effect on children's behaviour than other factors such as income or family structure.[10]

B. THE FAMILY LAW COMMITTEE PROJECT

The Deputy Ministers Responsible for Justice directed the Family Law Committee to make custody and access issues a priority, both as a matter of family law reform and as an integrated justice services project.  The project was given the following mandate:

Identify and make recommendations respecting custody and access issues that arise before, during and after family disputes.  This will involve developing a strategy to deal with legislative and service delivery issues requiring immediate priority for action, and also identifying an integrated, multi-sectoral process to respond to the longer term legal, environmental and service needs of children and families, for the purposes of:

In December 1999, the then Ministers Responsible for Justice reviewed and approved the work plan for the project, the plans to hold public consultations and a set of principles to guide family law reform.  As well, the federal Minister, with the concurrence of her provincial and territorial colleagues, also agreed to refer the recommendations of the Special Joint Committee on Child Custody and Access[11] to the Family Law Committee to include in its review.

In March 2001, a consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada,[12] was released and the public was invited to respond both in writing and through workshops that were held from April to June 2001 in every province and territory.  The issues identified and discussed in Putting Children's Interests First reflected concerns that had been raised nationally on custody, access and child support.  The consultations provided a wide range of comments on these issues.  A review of the report from the consultations[13] reveals a general consensus on certain broad themes, including:

• the need to maintain a child-centred focus, including retention of best interests of the child as the key question to be addressed in determining family responsibilities;

• the need to enhance the family law system and support services to more adequately ensure that the best interests of children are indeed served when dealing with family breakdown;

• a recognition of the importance of children's need for physical safety, and emotional, psychological and financial security;

• the importance of encouraging and supporting good parenting practices during and after separation and divorce; and

• the need for continued flexibility in approaches to ensure that the unique needs of children and families during and after separation and divorce, including extended family, cultural and social needs, can be identified and addressed on an ongoing basis.

While a diversity of views was expressed on most issues, the workshop format encouraged participants to listen to and learn from the perspectives of different people concerned about children and families experiencing divorce and separation.  Workshop participants, in total about 750 people, represented social service, education, enforcement, legal community, child welfare, health, women's interest groups, men's interest groups, grandparents' groups, non-custodial parents' groups, and Aboriginal organizations.  As well, there were youth workshops.

The Family Law Committee also reviewed the recommendations of the Special Joint Committee on Child Custody and Access.  In its report, For the Sake of the Children, the Committee made forty-eight recommendations on custody, access and child support, including legal and service issues.[14]  The Committee's recommendations concerning the issues addressed in this report are discussed in the relevant sections of this report.

The Family Law Committee's work on the custody and access project was informed by research on various topics conducted before and during the life of the project by the federal government, and through other consultations, research and reviews conducted at the provincial and territorial level.

For example, Saskatchewan began a review of service and legislative issues with the March 1998 release of Promoting Resiliency in Children and Families:  A Discussion Paper on the Effects of Separation and Divorce.[15]  The paper was available for public response and was discussed in five multi-sectoral workshops.  The results led to development of another paper, Promoting Resiliency in Children and Families:  Identifying Priorities,[16]released in fall 2000 for public discussion and a further round of multi-sectoral workshops.  Participants in both workshop sessions have provided feedback that helped direct provincial approaches to participating in the national Putting Children's Interests First:  Custody, Access and Child Support in Canada consultations.[17]

In Alberta, the Unified Family Court Task Force submitted a report recommending a single court to deal with family matters.[18]  The Government of Alberta has also initiated the Alberta Family Law Reform Project.  Public consultations on family law reform began in February and March 2002.

On April 29, 2002, Children Come First:  A Report to Parliament on the Provisions and Operation of the Federal Child Support Guidelines was tabled in the House of Commons by the federal Minister of Justice.[19]  The Report to Parliament contains the recommendations for amendments to the Federal Child Support Guidelines found in Part 2 of this report entitled Child Support.  The federal, provincial and territorial governments worked together through the Family Law Committee to develop these recommendations.  The Report to Parliament also provides information on how governments worked together to implement the guidelines across Canada through the delivery of family justice services, carrying out research projects, conducting public awareness and information campaigns for parents, lawyers and judges and improving the enforcement of support orders.

The Report to Parliament also outlines the steps that governments have taken to work together to improve the enforcement of support obligations.  For the family law justice system to work, family support obligations must be enforceable.  In Canada, the provinces and territories are responsible for the enforcement of family support orders.  However, over the past six years, the Government of Canada has taken a more active role in enforcement.

The federal government has concentrated its enforcement efforts in the areas of co-ordination and enhanced federal enforcement tools.  It has established a federal enforcement policy unit, increased project-based funding, and launched a comprehensive program of research on enforcement and compliance issues.  The results of some of the research are expected this year, and they will be extremely valuable in assessing ongoing efforts and, therefore, in planning for the future.

The scope of the custody and access and child support project did not include assessment of support enforcement policy or program issues.  For more information about federal/provincial/territorial work on enforcement of support, the reader is referred to the Report to Parliament.

The Deputy Ministers Responsible for Justice have asked that all policy work include discussion of diversity issues.  The Family Law Committee recognizes that its review has not yet sufficiently addressed diversity and Aboriginal issues with respect to family law and family law services.  More work is required to meet this expectation.  Although Aboriginal workshops were held in Ottawa in June 2001,[20] and research was conducted in Nunavut,[21] the Family Law Committee suggests that more dialogue about the needs of specific communities is necessary.

Recommendation 1

It is recommended that continued dialogue, research and development be undertaken to address diversity and Aboriginal issues with respect to family law.

It is the hope of the Family Law Committee that distribution of the report from the national consultations, availability of research conducted for this project, and this report itself will continue to foster dialogue, discussion and the development of consensus on the important issues addressed in this report.

C. PRINCIPLES AND OBJECTIVES

As mentioned above, Ministers Responsible for Justice approved a set of guiding principles for family law reform in December 1999.  These principles were included in the text of the consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada,[22] and during the consultations there appeared to be agreement with these principles.  The Family Law Committee proposes that these principles continue to guide the development of a longer term, collaborative, inter-jurisdictional response to family law reform and family law service enhancement.

Recommendation 2

It is recommended that the principles and objectives of family law reform be as follows:

Principles

• Ensure that the needs and well-being of children come first.

• Promote an approach that recognizes that no one way of parenting after separation and divorce will be ideal for all children, and that takes into account how children and youth face separation and divorce at different stages of development.

• Support measures that protect children from violence, conflict, abuse and economic hardship.

• Recognize that children and youth benefit from the opportunity to develop and maintain meaningful relationships with both parents, when it is safe and positive to do so.

• Recognize that children and youth benefit from the opportunity to develop and maintain meaningful relationships with their grandparents and other extended-family members, when it is safe and positive to do so.

• Recognize the positive contributions of culture and religion in children's lives.

• Promote non-adversarial dispute-resolution mechanisms and retain court hearings as mechanisms of last resort.

• Provide legislative clarity to the legal responsibilities of caring for children.

• Recognize the overlapping jurisdictions in custody and access matters in Canada, and make efforts to provide co-ordinated and complementary legislation and services.

Objectives

• To focus parents, professionals and services to better serve children's needs and interests.

• To reduce the negative impact of conflict on children and to promote healthy models of dispute resolution.

• To support positive parental, extended family, and cultural interactions with the child.

• To provide clearer, more predictable and understood responses to family justice issues.