Federal Funding of Provincial and Territorial Child Support, Support Enforcement and Child Custody and Access Projects
Family Justice Initiatives Projects (continued)
Administrative Case Management Procedures
A number of family justice systems have introduced case management-type procedures to facilitate timely and appropriate handling of individual cases. Quebec’s Greffiers spéciaux (special court clerks) program, for example, seeks to ensure that proposed child custody and support agreements filed with the court are processed as quickly as possible. After reviewing proposed agreements involving separation or divorce matters, the clerks take one of three actions. First, he or she may ratify the agreement. If however, there is a concern that the agreement is not safeguarding the children’s best interests, the clerk may ask for additional information from the parents. Finally the clerk can refer the application to the court.
In Ontario, under the Family Law Rules, family case management clerks in the Ontario Court of Justice and Unified Family Court ensure that all clients are made aware of Family Court services, including alternatives to litigation, and that they receive appropriate assistance with the court forms and proceedings. The 65 clerks vet cases to confirm that parties have filed the appropriate documents, advise them of alternatives to litigation, make referrals to community resources when appropriate, and schedule hearings or case management conferences for cases that are ready to go forward. The case management clerks offer these services immediately after a case is filed and before a judge is involved, giving the parents an opportunity to reconsider their dispute resolution and settlement options before the litigation process begins. The timing of these services distinguishes the function of case management clerk from that of Family Law Information Centre staff (see above), who provide clients with options for resolving their disputes and organizing their case before they enter the court process.
British Columbia has undertaken a project to test innovations such as “triage” sessions under new Provincial (Family) Court Rules. The Family Justice Registry Project, which operates in four locations, requires each party to a Family Relations Act case to attend a session with a triage family justice counsellor prior to a first court appearance, unless the judge agrees that there are “urgent and exceptional circumstances” that require the court to hear the matter at the earliest opportunity. During the triage session, the counsellor assesses the circumstances of the case, discusses dispute resolution options with them, and makes appropriate referrals for mediation or related services. Parents choose whether or not to act on the referral.
Judicial Case Management
In addition to the administrative case management programs described above, some provincial and territorial governments have introduced what might be termed judicial case management procedures. These measures, which are authorized under court rules, are designed to expedite family law cases going to trial.
In Alberta, for example, either parent in a separation or divorce may request case management when he or she feels the other parent is slowing the process or an impasse has been reached. If the presiding judge rules the case needs case management, a second judge would be assigned as case manager. The case manager can set court dates and expedite the case through settlement conferences or pre-trial hearings. An evaluation of the program is planned.
Manitoba has taken a somewhat different approach. Under its program, new separation and divorce cases are randomly selected each month to be managed and expedited through the justice system with the goal of reducing unnecessary delay and expense by promoting early and fair settlements. A Family Division judge is assigned to a case, presides at the initial case conference session with the parties and their counsel, and remains available to assist in the management of the case until its resolution. An evaluation of the program found that the legal community is positive: 93 percent of the lawyers surveyed said it had a positive effect on the legal proceedings and had reduced the number of contested hearings. The province planned to make the procedure, which was first introduced in 1995, generally available in 2001.
Judicial case management conferences are also used in the Northwest Territories, at the discretion of parents or the court. The objectives of the conferences are the resolution of disputes without trial, if possible or, when a trial is required, the simplification of issues to make the process more efficient for litigants in terms of time and money. The process is available for all civil cases, including ones involving custody and access.
Ontario recently implemented new rules for Unified Family Courts and the Ontario Court of Justice. Specially designed for family cases, these rules emphasize early judicial intervention and early resolution of cases. The rules incorporate case management principles. Child protection cases have specific timelines, and other domestic cases use a fixed date system for events before trial and a case conference early in the case to schedule events, explore ways to resolve issues in disputes and organize the disclosure of information. It is expected that the use of pre-trial litigation (motions) at the beginning of a case will largely be replaced with case conferences. In two Superior Court locations outside the unified family court system, case management rules prescribe a timetable for events in the case. The case management judge has considerable power, including the power to enforce compliance with the timetable.
The provinces and territories have not allocated federal resources to the judicial case management initiatives described. The initiatives are, however, illustrative of a broad and general commitment to providing alternatives to trial.
In order to help individuals who wish to obtain or vary a support order without legal representation, Alberta, Saskatchewan, British Columbia, Nova Scotia, New Brunswick, the Northwest Territories and Ontario allocated federal resources to produce and distribute self-help support variation kits. In 2000‑2001, Nova Scotia introduced another self-help tool. The province has set up self-help workstations in three Supreme Court (Family Division) sites where clients can use computers and formatted forms to prepare child support applications and the requisite forms.
Supervised Access Services
Supervised access services provide a safe setting for children to spend time with non-custodial parents or other persons, such as a grandparent, when there are concerns for the safety of the children or the custodial parent. Typically, community groups provide the services, some with government funding or other forms of assistance. In 2000, supervised access was available in some cities in British Columbia, Saskatchewan, Manitoba, Ontario, Quebec and Nova Scotia.
Ontario, which allocates federal funds to supervised access services, is expanding its program from the 36 sites in 2000 to all 54 court districts by 2003. The services are delivered by community-based agencies, such as children’s mental health centres, neighbourhood support centres, the YMCA and local children’s aid societies, that operate with a mix of paid staff and volunteers. The agencies receive financial support from the Ministry of the Attorney General. Most referrals to supervised access programs come from the courts and lawyers for the parents. Between April 1, 1999 and March 31, 2000, approximately 29,000 visits and exchanges involving 12,100 families took place at 36 centres and satellite locations.
In 2000-2001, Nova Scotia used federal funding to prepare a best practices manual and to work with community organizations to develop options for supervised access services delivered by those organizations. The supervised access program would be delivered in areas served by the Supreme Court (Family Division).
In making determinations about custody and access, judges may order social or psychological assessments, or both. The assessment process provides the judge and the parents with independent, written information to help them make custody and access determinations that are in the children’s best interests. Commonly, the assessor interviews and observes the children with each parent and submits a report and, in many cases, recommendations on the parenting arrangement. The report becomes part of the evidence before the judge and its assessor may be called to testify.
In 2000‑2001, New Brunswick used federal funding to support assessment services for families in financial need. The Court Services Division, which administers the services, maintains a list of qualified assessors from whom eligible clients can obtain assessments. While New Brunswick was the only jurisdiction to use federal resources for this purpose, others do provide or facilitate access to assessments in custody cases. The services may be provided by social workers or mental health professionals employed by government agencies or private practitioners.
In October 1999, Ontario began a two-year pilot project to test a new approach to resolving the access-based disputes that occur in approximately 20 percent of separations and divorces. The primary aim of the study is to examine the effectiveness of two different types of intervention:
- a focused social work intervention, which seeks to identify the conflict that is underlying the dispute and assist the parents in formulating a parenting plan in the interests of the child; and
- a focused legal representation, which targets the legal issues before the court and provides a legal resolution in the children’s interests.
The project was the subject of research using a randomized, future-oriented quasi-experimental design to examine the effectiveness of the two types of focused interventions, as compared with traditional assessments. The preliminary research findings are positive.
Saskatchewan introduced special custody and access assessments in 2000-2001, that focus on the children’s perspective in separation and divorce. The Children’s Voices reports are completed more quickly than the full custody and access reports because the assessor only interviews the child. Development of the Children’s Voices reports was in response to a recurring theme in both national and provincial public consultations held recently in Saskatchewan to hear the perspectives and opinions of the children who are the subjects of custody and access issues. The Children’s Voices reports are only available by court order. Once ordered, a social worker interviews the child and prepares a written report for the court expressing the child’s views. These assessments are designed for families whose children are of an age or maturity level that their opinions can be accurately expressed. The speed with which the reports are available benefits both the families involved and the courts.
Court Forms and Rules
The introduction of child support guidelines and related provincial legislative reforms led directly to a need to review and modify court rules and associated forms in most provinces and territories. Federal resources supported rules revision projects in British Columbia, Alberta, Manitoba, Ontario and the Atlantic provinces. These projects not only sought to make changes demanded by amendments to the Divorce Act, but also to introduce administrative efficiencies and, more importantly, reforms that allow and encourage alternatives, such as mediation, that support the broad objectives of child-centred family law services. Nova Scotia and New Brunswick, for example, in reviewing and modifying their rules introduced provisions to make it easier for parents to seek resolutions by agreement and have such agreements readily processed. British Columbia, which adopted an entirely new set of rules for provincial courts, made provision for special procedures such as family law triage counsellors, while Ontario, which undertook a similarly comprehensive review, provided for case management in all family cases and paid particular attention to devising forms that are easier to understand and use, especially by self-represented litigants.
As might be expected with any significant changes in court procedures, provincial and territorial governments implementing revised court rules and forms devoted resources to training for judges, court staff and members of the family law bar, and to publishing public legal information materials for family law clients and the public. In addition, many rules changes resulted in requirements and opportunities for modifications and enhancements of court information management systems, as was the case with Manitoba’s auto-order project.
Provincial Child Support Guidelines
Following the introduction of the Federal Child Support Guidelines, each province and territory had to decide whether it would adopt the federal guidelines or create its own for application in provincial family law matters. Since May 1997, all jurisdictions but two have adopted the federal guidelines, or a modified version thereof. Quebec has implemented child support guidelines that differ from the federal guidelines in apportioning the presumed cost of raising children between the parents according to the income of each. Alberta has yet to determine whether it will adopt federal guidelines in provincial legislation (although it has implemented them in practice) or introduce another approach. In the interim, the Federal Child Support Guidelines are applied under the guidance of a Court of Queen’s Bench practice note. In Quebec, Prince Edward Island, New Brunswick and Manitoba, the provincial guidelines apply in cases of divorce when both parents are normally residents of the province, under a designation made under subsection 2(5) of the Divorce Act.
British Columbia, New Brunswick, Yukon and Newfoundland used federal funds to support the development and implementation of their guidelines. The funds supported policy work and consultations leading to the eventual adoption of legislation, training for court personnel and family law professionals, publication of public information materials and the introduction of procedural and administrative changes.
In 2000, Manitoba implemented its automated orders (auto-orders) system, beginning in Winnipeg’s Masters Maintenance Enforcement Court and, subsequently, throughout the Court of Queen’s Bench, Family Division. The system has two related objectives: to ensure that the language of orders is clear and consistent, and to improve the timeliness and efficiency of the procedure. The first phase of the auto-orders project, begun in 1997-1998, developed standard order clauses to eliminate ambiguities and permit the design of a system to capture data needed for the Maintenance Enforcement Program. The use of the standard clauses is mandatory, unless a court expressly approves an exception. The second phase, in 1998-1999, introduced electronic filing and the enabled production of automated orders in the courtroom. Manitoba Justice then proceeded with preparations for the implementation of an automated system. The implementation of the auto-orders system was supported by communications and training activities directed to internal users (court staff) and external users (law firms), external testing and refinements to court rules.
Ontario and Nunavut allocated federal resources to studies related to auto-orders. In 1998-1999, Ontario carried out a pilot project that tested the automated preparation of child support orders in family law proceedings. The evaluation of the pilot concluded that to be successful in the province’s family courts, a system would have to provide for automation of all family orders. As a result, the Ministry of the Attorney General decided to defer consideration of such a project. In 2000‑2001, Nunavut’s Family Law Working Group began planning for implementation of an auto-order system building on the work done in Manitoba. The project produced draft family orders that were submitted to the courts for review and approval before a pilot project was undertaken.
Quebec and Newfoundland and Labrador allocated federal funding to increase the capacity of their administrative information management systems in response to implementation of the child support guidelines. In addition to installing additional equipment, the Quebec Department of Justice developed a database of all family-related child support and mediation cases, while Newfoundland and Labrador undertook the development of a new case management computer system to automate manual reporting procedures and improving efficiency.
When the Federal Child Support Guidelines came into force, provincial and territorial governments took steps to deal with the resulting increase in applications to vary child support orders and agreements. Ontario and British Columbia, for example, addressed the resulting demand for information about and assistance with child support applications in individual cases by creating new positions: intake clerks in Ontario and child support clerks in British Columbia. In both provinces, the clerks helped clients making child support or a variation application by distributing information kits, responding to enquiries, helping prepare court documents and other related activities. In 2000‑2001, the functions of intake clerks in Ontario were phased out as Family Law Information Centres and case management clerks were brought on-stream, while British Columbia phased out some child support clerk positions the previous year. Saskatchewan, rather then creating new positions with specialized functions, employed additional court clerks to deal with increased workloads, and modified the responsibilities of the existing position as needed to deal with the introduction of the guidelines.
The Yukon Department of Justice responded to the new demands by establishing the Child Support Guidelines Information Office in the Whitehorse courthouse, and by setting up a dedicated phone line. A part-time clerk was assigned to the office and phone line and was responsible for answering inquiries, making referrals and preparing and distributing information packages. A child support information officer was also available on a part-time basis to provide information to the public on the guidelines, tax changes and settlement options and to help parents with variation applications for child support consent orders. This position was discontinued after two months of operation due to limited demand. Information is currently available from the project officer and through the Maintenance Enforcement Program office in the Whitehorse courthouse.
Newfoundland has, since 1993, assigned social workers employed by the Department of Human Resources and Employment to help social assistance recipients apply for and obtain support orders. The service was expanded in 1997‑1998 and the duties of the support application social workers modified to include responsibilities for accepting original and variation applications, helping applicants collect and collate financial disclosure documentation, and prepare agreement documents. In addition, the workers meet with the parents, individually or jointly, to try to negotiate an agreement. If such an agreement is reached, the worker drafts a consent order for confirmation by the courts. Newfoundland has maintained the expanded support application social workers services. Following the completion of a program evaluation in 2000, the province is exploring changes that would produce integrated services, such as the Corner Brook project involving the community mental health program, Blomidon Place.
Alberta Justice used federal funding to support policy and program planning activities. The department’s Family Law Branch assigned a lawyer to develop proposals for policy and procedural changes, act as a resource to litigation counsel, and be responsible for continuing education for legal and other personnel. It also assigned two lawyers to work part time with the courts, the Maintenance Enforcement Program and Alberta Children’s Services to develop new policies, protocols and forms.
New Brunswick responded to the increased demand from parents waiting to get an appointment with court-based alternative dispute resolution services by redesigning the court social worker service. It transferred the responsibility for paralegal work from the social workers to dedicated paralegal staff, working directly with Legal Aid New Brunswick. This freed the social workers to focus on screening, mediation and settlement services.
Lawyer Referral Line
In 1997-2000, the Law Society of Saskatchewan maintained a toll-free line that provided callers with a list of family lawyers who offered half-hour consultations for a nominal fee (approximately $25). The service was intended to help low- and middle-income people not eligible for legal aid services to pursue variations. The Law Society responded to an average of 16 calls per month from April 1997 to January 1998. Subsequently, the demand for service dropped to one to five calls per month. As a result, in 1998-1999, the use of a special line was abandoned and the service has since been managed through the Society’s general enquiry line.
Financial Information Services
In 1997, New Brunswick established a child support information centre in Moncton, where a roster of duty counsel and a local tax specialist held clinics every Thursday evening. The demand for services, especially of the tax specialist, was very low and the program was redesigned so that legal services were delivered only on referral from Family Support Services and the tax specialist only on the referral of a duty counsel. In 1998‑1999, the revised service was made available in eight communities.
Prince Edward Island first retained an accountant as a financial counsellor to help the court and court staff with income determinations in 1997‑1998. Under the Rules of Court, the counsellor is available to assist in complex income determination cases. During the implementation period, the accountant also participated in training.
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