The Survey of Child Support Awards: Analysis of Phase 2 Data Collected Through January 31, 2002
APPENDIX A: DIVORCE AND THE PROCESSING OF CHILD SUPPORT ORDERS
A1.1 Study Approach
The information in this Appendix was obtained from a variety of sources. These sources include site visits, telephone interviews and written materials provided by the various jurisdictions. The following court sites were involved in the study:
- St. John’s, Newfoundland;
- Charlottetown and Summerside, Prince Edward Island;
- Halifax, New Glasgow, Sydney, Truro and Yarmouth, Nova Scotia;
- Fredericton, New Brunswick;
- Ottawa, Toronto and London, Ontario;
- Winnipeg, Manitoba;
- Saskatoon and Regina, Saskatchewan;
- Edmonton and Calgary, Alberta;
- Victoria, British Columbia;
- Yellowknife, Northwest Territories; and
- Whitehorse, Yukon.
As Quebec’s system of determining child support awards differs from that of other Canadian jurisdictions, a separate study was designed to collect and analyze its data. Therefore, there are no Quebec data in this report.
This Appendix presents a brief overview of the study sites as of December 2001. Section A2.0 discusses the type of court structure and the provincial or territorial legislation related to divorce and child support. Section A3.0 provides a detailed description of the process of granting a divorce and related matters such as child support. Section A4.0 presents issues related to the administration of divorce and child support orders, and discusses the similarities and differences of the sites. Section A5.0 contains some general observation derived from the information in this Appendix.
A1.2 Limitations of the Study
The findings presented in this part of the report are subject to limitations. A major limitation is the variation in the sources and amounts of information available in different localities. Another is caused by constantly changing policies, regulations and services with regard to child support and divorce.
All of the sites involved in this study have taken some steps towards formally implementing the Federal Child Support Guidelines. However, some procedures, policies and practices are still evolving. Different sites are at different stages in implementing the Guidelines, and the approach at any given site is often unique. This limits our ability to directly compare the sites and suggests that the picture we have of any one site may not be valid for very long. The information contained in this Appendix represents the situation at most sites as of December 2001.
A2.0 LEGAL CONTEXT OF DIVORCE AND IMPLEMENTATION OF THE FEDERAL CHILD SUPPORT GUIDELINES
Court systems that handle legal proceedings regarding divorce and child support vary depending on the jurisdiction. These systems can be broadly identified as either a two-tiered system or a Unified Family Court system.
In the traditional two-tiered system, matters under the federal Divorce Act are addressed in Superior Court by a federally appointed judge (Constitution Act, section 96). The Superior Court judge hears divorce actions and related corollary relief matters (including child support, spousal support, and custody or access) and may also address property issues under provincial or territorial legislation. In a two-tiered system, a provincial or territorial court judge has a concurrent jurisdiction to deal with child support, spousal support, and custody or access, if they are not part of the divorce proceedings. However, the provincial or territorial court judge may not deal with property issues.
In a Unified Family Court, the judge hears all family-related matters, whether under provincial, territorial or federal legislation.
A2.1 Types of Courts
As Table A2.1 shows, as of December 2001, New Glasgow, Truro, Yarmouth, Toronto, Edmonton, Calgary, Victoria, Yellowknife and Whitehorse had a two-tiered court system. In contrast, St. John’s, Halifax, Sydney, Summerside, Charlottetown, Fredericton, Ottawa, London, Winnipeg, Regina and Saskatoon had a Unified Family Court system.
|Study Site||Two-tier system||Unified Family Court||Courts dealing with matters under theDivorce Act|
|St. John's, Nfld.||X||Supreme Court Trial Division|
|Halifax and Sydney, N.S.||X||Family Division, Supreme Court of Nova Scotia|
|Other sites, N.S.||X||Supreme Court of Nova Scotia|
|All Sites, P.E.I.||X||Supreme Court of Prince Edward Island|
|Fredericton, N.B.||X||Court of Queen's Bench, Family Division|
|Ottawa, Ont.||X||Superior Court of Justice, Family Court|
|Toronto, Ont.||X||Superior Court of Justice|
|London, Ont.||X||Superior Court of Justice, Family Court|
|Winnipeg, Man.||X||Court of Queen's Bench, Family Division|
|Regina and Saskatoon, Sask.||X||Court of Queen's Bench, Family Law Division|
|Edmonton and Calgary,Alta.||X||Court of Queen's Bench|
|Victoria, B.C.||X||Supreme Court, Province of British Columbia|
|Yellowknife, N.W.T.||X||Supreme Court of Northwest Territories|
|Whitehorse, Yukon<||X||Supreme Court of Yukon|
A2.2 Provincial and Territorial Legislation and Practice
In addition to the type of court, provincial and territorial legislation and judicial practice affect the process of divorce and use of the Guidelines. As of December 2001, most provinces and the Yukon had enacted legislation or regulations adopting the federal Guidelines for use in proceedings under provincial or territorial legislation. Quebec has enacted legislation adopting its own guidelines, which use a different model and apply to proceedings under both the federal Divorce Act and provincial legislation. Only Alberta has not yet given a clear indication of whether it will adopt the Federal Child Support Guidelines for use in proceedings under provincial legislation. If a province has drafted its own guidelines, these apply to proceedings under both the Divorce Act and provincial legislation, except in cases of divorce when the parents live in different jurisdictions.
The importance of judicial practice in encouraging the use of the Federal Child Support Guidelines should not be overlooked. Although Alberta has not formally enacted legislation to adopt the Guidelines for child support cases that do not involve divorce, most provincial Family Court and Queen’s Bench judges in Alberta appear to be using the Guidelines to deal with child support applications under provincial law. In the Alberta Court of Queen’s Bench, this can be attributed to a practice directive from the Chief Justice requiring that the Child Support Information and Data Sheets (required Guideline forms) be submitted with all child support applications.
Paragraph 11(1)(b) of the Divorce Act requires that the court, before granting a divorce, must “satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines.” However, it is difficult to determine how actively judges or their staff scrutinize child support arrangements in situations involving consent agreements or uncontested applications. In Edmonton and Calgary, Family Law Information Centre staff must review all orders involving child support in all uncontested cases of divorce (“desk divorces”), as well as all applications (consent or contested) brought by unrepresented parties. In Edmonton, staff also review consent orders filed by lawyers.
Most jurisdictions require financial statements in contested divorce cases involving children. The legal requirement is usually established by the Rules of Court or Practice Rule. 21 Only Prince Edward Island and Newfoundland require filing of financial statements for child support applications pursuant to the Family Law Act in their province, and the Northwest Territories is considering this. In the Northwest Territories, practice directives require the use of financial statements. Under the Yukon divorce rules, financial statements must be filed if there are children of the marriage. In Manitoba, financial statements must be filed when a petition is filed if support is requested. Only in Alberta must the Child Support Information and Data Sheets (which include forms for determining income for the purposes of the Guidelines and the calculation of child support under the Guidelines) be filed in all cases to allow scrutiny of consent orders and uncontested desk divorce applications. In Saskatchewan, new rules in 2001 (rule 640(5)) require a child support calculation form (640D) to be filed; previously a practice directive required similar forms. In Ontario, financial statements are required with the application in all cases requesting support or equalization of net family property (under the court rules). At many sites across the country, it does not appear that financial statements are always required in cases involving consent agreements or orders, or uncontested applications.
A3.0 PROCESS OF DIVORCE AND ANCILLARY MATTERS
The process of divorce can be divided into three general stages:
- marriage breakdown;
- a pre-petition stage; and
- the divorce proceeding.
Each of these stages involves a series of decisions on the part of one or both spouses. The divorce can be completed rapidly, or can take years if the parties separate and take no further action until one party wants to remarry.
Figure A3.1 provides a model of the divorce process. This model is general enough to accommodate most variations in how divorce cases are handled across Canada. In Section A4.0 we will see how various factors, which differ in the jurisdictions involved in this study, affect the general process.
A3.1 Marriage Breakdown
The Divorce Act, which governs the process of divorce in Canada, provides that the basis for divorce is a “breakdown of the marriage.” Breakdown is established when one or more of the following occurs:
- the spouses have separated and lived apart for at least one year;
- the respondent spouse committed adultery; or
- the respondent spouse has inflicted physical or mental cruelty on the other spouse.
As Figure A3.1 indicates, the divorce process begins with marriage breakdown occurring for any number of reasons. However, at the petition stage, one of the three indications of breakdown of marriage must be used as the grounds for divorce.
A3.2 Pre-petition Stage
The pre-petition process may involve several stages and decisions. Actions taken at this early stage set the framework for subsequent decisions. After the separation, couples often resolve many of the legal issues related to their marriage breakdown by separation agreements or interim court orders that are later incorporated into the final divorce order.
When marital problems arise, the couple may try some form of marriage counselling to resolve their problems, or may work on their problems on their own. If either approach is successful, the marriage may continue. Alternatively, the couple may find that the issues cannot be resolved, or that one or both no longer wish to try to resolve them. At this point, there is likely to be a physical separation.
Once a couple decides to separate, they must then decide whether to take further action. 22 If the couple is childless and has no significant property issues, the husband and wife may simply go their own ways. Often no formal action needs to be taken unless a separated spouse wishes to remarry, which may occur years later.
Even when the separation is relatively amicable, the parties may wish to formalize the details of the separation. This is especially true when children, substantial assets or significant debts are involved, or when one spouse requires financial support from the other for him or herself or the children of the marriage. At this point, one or both may consult a lawyer. A Family Court counsellor, a court conciliator or a mediator may also be consulted. Occasionally, information or advice obtained at this stage results in an attempt at reconciliation. In fact, section 9 of the Divorce Act requires legal advisors to discuss the possibility of reconciliation with their clients and advise them about reconciliation support services.
If reconciliation is not possible but the couple can agree on the resolution of all issues, a separation agreement will usually be prepared. Each spouse is advised to obtain independent legal advice before signing such an agreement. Agreements are often negotiated between the two lawyers. If an agreement is not reached, the lawyers may refer the couple to a mediator, who tries to help the spouses reach an agreement regarding one or more issues. Sometimes mediation will deal with only one issue, such as access, while in other cases mediation may be “comprehensive” and deal with all the issues. Some separated spouses consult a mediator before seeing lawyers. If mediation results in an agreement, the parties should be referred to lawyers for independent legal advice before signing the agreement. If the agreement has been signed, the parties may begin divorce proceedings at any point or they may do nothing further until one or the other wishes to divorce to allow, for example, remarriage.
If the parties cannot agree, applications can be made to the court to resolve the various issues between them. Each province and territory has legislation permitting the courts to deal with issues of custody, child support, spousal support, possession of the matrimonial home and division of property. Occasionally a court order under provincial or territorial legislation resolves all the issues between the parties, and the terms of the order can be incorporated into a separation agreement. The separated parties may then choose to do nothing further unless one of them wishes to remarry. Alternatively, if the issues are not resolved at this stage, one or both parties may wish to file a petition for divorce.
If the separation took place unilaterally, one or both spouses often seek legal advice immediately. An application may be made to the court for an interim order dealing with custody, support and possession of the home even before negotiations begin. Sometimes, a spouse may have sought legal advice prior to separation and may initiate interim court proceedings immediately upon separation.
In the majority of cases, the parties proceed with a legal divorce. There may be one or more court orders or consent orders, a separation agreement, or only a verbal understanding between the parties prior to the filing of a divorce petition.
A3.3 Divorce Proceeding
Divorce proceedings technically commence when one or both spouses (joint petition) file a petition (or application) with the court. The petition usually sets out the length of the marriage, the legal grounds for seeking the divorce, the income and assets of the applicant spouse, and the names and birth dates of the children of the marriage. Orders for custody and support of the children and spousal support are also requested. Applications for property division, which are governed by provincial or territorial statutes, are often joined with the divorce petition. Some provincial or territorial rules require an application for property division to be made in separate documents, but permit it to be resolved at the same time as the divorce petition. The rules in other jurisdictions permit property claims to be included directly in the divorce petition. Occasionally, an application for property division has already been made and decided before the divorce proceedings begin.
In all jurisdictions, spouses may file a petition before a one-year separation is completed, although the divorce may not be granted until after one year of separation, if the separation is the grounds for divorce. Once the petition has been filed in court, it must be served on the respondent. The respondent then has a specified time in which to answer the petition. 23 If the parties have already entered into a separation agreement and the order requested in the petition incorporates the terms of the agreement, a response is usually not filed. Similarly, when the respondent agrees with the petition (or does not wish to actively contest it), a response is not filed, even if there are no previous orders or agreements. This type of divorce is referred to as “uncontested.”24 In most jurisdictions, the petition may then proceed without an oral hearing. A judge reviews the documents and makes a divorce judgement. If neither party files an appeal of the divorce judgement, it takes effect in 31 days. If there is an order regarding matters such as child support, custody and access as part of the judgement, this part of the judgement may take effect immediately.
If the respondent files a legal response to the petition, then the petitioner is in turn given an opportunity to respond to that. Negotiations often take place at this point and mediation or other forms of alternative dispute resolution may also occur. 25 If the issues in dispute can be resolved, “minutes of settlement” or a separation agreement may be drawn up or the parties may agree to the terms of the orders to be included in the divorce judgement, and the divorce will proceed as if it were uncontested. A respondent may wish to attempt negotiations before filing a response. If negotiations are successful, the resulting written document setting out the terms of the agreement is usually called a separation agreement (or minutes of settlement). If issues are not resolved, an answer is filed and the divorce is then contested.
If issues cannot be quickly resolved or there are urgent issues, it may be necessary to apply for interim orders for matters such as custody, child and spousal support, or possession of the matrimonial home, especially if the divorce proceedings are likely to be lengthy or if there is a need for financial support (which is usually the case if there are children). In urgent cases, for example when there are spousal abuse issues, there may be an urgent (ex parte) interim hearing scheduled without notice to the other party; such an order may later be reviewed with both parties present.
Examinations for discovery will be held to provide each side with an opportunity to examine the other party under oath in preparation for trial; 26 each spouse is questioned by the other’s lawyer for this purpose. If there is a dispute regarding custody or access to the children, an assessment by a psychiatrist, psychologist or social worker may also be done. As an assessment and examinations for discovery proceed, or more typically after they are completed, negotiations may begin or continue and minutes of settlement or a separation agreement may result and the divorce may proceed as if it were uncontested. If the parties enter into a separation agreement at any point, they may file a document with the court indicating that it will proceed by consent, which in most jurisdictions does not require an oral hearing for a divorce to be granted.
Failure of negotiations after examination for discovery usually results in a trial, where each party presents evidence on each of the issues in dispute. The final decision is made by the judge. The judge’s rulings on child support and other issues are included in the divorce order and, if no appeal of the granting of the divorce is filed, the divorce takes effect 31 days later.
A4.0 FACTORS AFFECTING CASE PROCESSING
A number of factors may affect the process of divorce and the determining of child support in Canada. These factors, related to the broader issues of information, advice and administration of proceedings, vary considerably from area to area in this study, and they are analyzed here.
A4.1 Information on Separation and Divorce
The amount, source and accessibility of basic information for the public regarding divorce and child support varies across the study sites.
A4.1.1 Public Information Services
In addition to the information packages on the Federal Child Support Guidelines and other materials provided by the federal government for distribution by the provincial and territorial governments, information has been provided directly at most sites to the public by the specialized child support units or indirectly through local public legal education groups. Public information meetings about the divorce process have been held in Winnipeg, Edmonton, Yellowknife and Whitehorse, and throughout New Brunswick, Saskatchewan and Ontario. These information services, for the most part, are provided by public legal education programs or designated professionals; however, in Saskatchewan public education is provided by Saskatchewan Justice (see sections A4.2 and A4.4 below). The Public Legal Education Association (PLEA) also provides some public education in Saskatchewan and distributes written material.
Divorce kits with standard forms, which include child support information, are almost universally available. In many jurisdictions they are provided by the public legal education groups; in others they are developed and sold by private bodies. For example, in St. John’s, Newfoundland, they are sold by the Women’s Centre, whereas in Ontario, Alberta and British Columbia they are sold by private companies and are available at stationery stores. In Nova Scotia, these kits are being updated by the Public Legal Education Association of Nova Scotia with court services funding, and in New Brunswick the Public Legal and Information Service has developed both a Guide to Doing Your Own Divorce and a Child Support Variation Kit. Many of the kits prepared by private companies have been updated to include information on the Guidelines. Most of those prepared by court services or non-governmental agencies also have been updated. The divorce self-help kit in Saskatchewan has been updated to include the Guidelines and is available for $25 at Court of Queen’s Bench locations. As part of the Child Support Guidelines initiative, Saskatchewan Justice and British Columbia developed a free variation kit to help parents vary their child support orders without counsel. In Ontario, the Ministry of the Attorney General developed and distributes divorce guides to procedure for the Unified Family Court. Alberta has developed packages of information and forms to be used by unrepresented parties to vary child support orders. There are packages that deal with various combinations of applications that include child support ($8 each) and one general information package that is free of charge.
A number of the sites have information telephone lines. However, these differ in various ways. In Prince Edward Island, a nominal fee is charged for use of a law information line, and the clients can be given both information and a referral to a lawyer. In Alberta, there is a toll-free Dial-a-Law and Lawyer Referral line that provides the public with both information and a referral to three lawyers specializing in particular matters. These lawyers give up to 30 minutes of free consultation through this referral service before requiring a private retainer. The Faculty of Law at the University of Alberta offers divorce clinics through their Student Legal Services. These services are available only to those who have settled all of the corollary relief issues. There are also income guidelines similar to legal aid. In Calgary, divorce clinics are offered by lawyers on a pro bono basis through Calgary Legal Guidance; however, there is a small fee for attending. Ontario’s Law Society of Upper Canada operates a lawyer referral service that the public can call to obtain referral to a lawyer. There is a $6 charge for each call to the service, unless the person is in a “crisis” situation (e.g. domestic violence, incarceration), in which case the call is free. The referred lawyer will provide up to 30 minutes of legal advice without charge to the client.
In Manitoba, the Community Legal Education Association operates lawyer referral lines and legal information lines staffed by paid lawyers. In Yellowknife, the law lines are free, but they operate mainly as a referral system and are staffed by volunteer lawyers. Saskatchewan and New Brunswick have telephone lines that provide information to the public about the Guidelines. In addition, the lawyer referral service in Saskatchewan will refer callers to private counsel who will provide initial advice for a nominal fee on family law issues, including those related to child support. The Saskatchewan Law Society operates the lawyer referral service and invoices Saskatchewan Justice for any child support inquiries. In Whitehorse, the law line is accessible to all Yukon communities and is staffed by one full-time lawyer. In British Columbia, a toll-free line of taped information on the Guidelines is available, and the British Columbia Branch of the Canadian Bar Association operates a lawyer referral service (with half an hour of a lawyer’s services for $10).
A4.2 Guidelines Resources
All of the study sites have designated staff to provide services relating to the Guidelines. Most of these positions are jointly funded by the province or territory and the Department of Justice Canada. However, the services provided and how they are delivered vary. Three types of service provision models can be identified as follows:
- services provided as part of court services offices;
- services provided through partnerships with other agencies; and
- services provided by distinct units or programs.
A4.2.1 Services Provided Through Court Services Offices
In most sites, court services staff provide information on child support. Ten study sites have implemented this type of model (Halifax, Charlottetown, Fredericton, Toronto, Ottawa, London, Regina, Saskatoon, Whitehorse and Yellowknife). In this model, one to five staff members are dedicated to this type of work at the court services office. While they vary across jurisdictions, staff functions include providing information to the public through general advertising, mail-outs, information sessions and telephone information lines, as well as providing information to individuals on request. In some jurisdictions, such as Nova Scotia and Prince Edward Island, the staff may also provide information directly to the court, legal aid and duty counsel. In Charlottetown, the child support officer prepares the final draft of the court order when the parties are not represented. In Saskatchewan, a toll-free telephone line provides access to staff who offer information and mail-outs, and also take registrations for parent education sessions for the public. These staff are part of Family Law Support Services, a branch of Court Services. In New Brunswick, Family Court social workers provide counselling and information to individuals going through separation and divorce, including providing information on the Guidelines.
In Ontario in 1999, Family Law Information Centres were established in 17 Unified Family Court sites and in Toronto. They have now been expanded to most non-Unified Family Court districts in the rest of the province. The centres contain brochures, videos and other information and resource material on family law. Court staff assist clients in the centre by providing information, particularly on court procedure. An advice lawyer from Legal Aid Ontario is available to provide summary legal advice or case-specific advice to clients who pass a financial eligibility test. In the Family Law Information Centres in the Unified Family Court, an information and referral coordinator employed by the court-connected mediation service provides detailed information about alternative dispute resolution options and community resources.
At two sites, government staff outside the court also deal with child support. In Prince Edward Island, two family support order program workers at the social assistance office are mandated to help clients on social assistance deal with issues regarding the Guidelines. In Yellowknife, a worker at the Maintenance Enforcement Office provides information and variation packages to the public.
A4.2.2 Services Provided Through Other Agencies
In Newfoundland and New Brunswick, information regarding the Guidelines is provided through partnership with other agencies. In Newfoundland, the departments of Justice and Human Resources and Employment jointly fund 11 support application workers across the province. The workers provide assistance to clients of Social Services who are involved in child support issues, and help the general public obtain or vary child support orders.
In New Brunswick, no offices specifically handle issues related to the Guidelines. However, in addition to the court-based services discussed above, a toll-free line available to the public for child support information is provided in partnership with the Public Legal Education and Information Service of New Brunswick.
In British Columbia, Family Justice counsellors who work in Family Justice Centres not located in the court house provide mediation services for parents, with preference given to low-income families. Also, the Ministry of Social Development and Economic Security operates the Family Maintenance Program, which obtains child support orders on behalf of custodial parents who have assigned their rights to child support to the Crown.
A4.2.3 Specialized Child Support Units
Winnipeg, Edmonton, Calgary and three Family Justice Centres in British Columbia have specialized child support units. These units vary considerably in their structure and functions.
In Winnipeg, the Child Support Guidelines Centre provides parent education services for separating and divorcing parents, as well as a Comprehensive Co-mediation and Mediation Internship Program, which provides an alternative to court action and an opportunity for professionals with appropriate mediation education to obtain practical mediation experience under the supervision of program specialists.
Edmonton and Calgary have Family Law Information Centres (FLIC) (name changed July 1, 2000 from Child Support Centres) located at the Court of Queen’s Bench. The centres have two primary roles. The first is to assist the public, the legal community and affiliated service agencies by providing information and material about the Guidelines and the court process. The centres have developed various booklets on court procedures and legal rights to assist unrepresented parties with their Queen’s Bench child support applications. The centres have also developed court procedure booklets for Queen’s Bench family law applications dealing with such issues as custody and access, spousal support, arrears or stay of enforcement and restraining orders. The second role is to assist the courts. The centres assist the judges by providing legal research and consultation on specific issues pertaining to the Guidelines and family matters. They provide computer training on child support programs, and make staff available during Family Chambers. They also review all applications for consent orders for child support and desk divorces involving children prior to their submission to the judiciary (whether submitted by lawyers or by unrepresented parties), with respect to calculations under the Guidelines, compliance with the information requirements in section 13 of the Guidelines and the Alberta Rules of Court, and the consistency and completeness of supporting materials and financial disclosure. The Edmonton and Calgary FLICs also provide training and information sessions on the Guidelines, provide training and information sessions on the review procedures for child support applications, and act as “friend of the court” (amicus curiae) for Queen’s Bench confirmation hearings, which confirm child support orders made in another jurisdiction in cases when one of the parents does not live in Alberta.
In British Columbia, child support clerks are located in Family Justice Centres in three centres. These clerks provide information to parents about the Guidelines, as well as dispute resolution options, and can help unrepresented parents prepare court documents for child support applications. Preference is given to low-income parents appearing in Provincial Court.
There is an important theoretical distinction between providing legal information and giving legal advice, although in practice this distinction may be hard to make. Only lawyers should give legal advice about a specific situation, and it should be directed to a particular client in the context of a professional relationship. It appears that most parties involved in divorces obtain legal advice at some point in the process. This includes privately retained counsel as well as lawyers paid by legal aid. Others may obtain some legal advice through telephone consultations, usually referred to as “law lines.”
Legal aid has changed considerably in the last several years, and in some jurisdictions Legal Aid resources are not available to those involved in family law disputes. While legal aid is still available for restricted purposes in many areas, it is usually not available for divorce proceedings. Legal aid is often available only for family law cases involving violence, abuse or other criminal matters.
The site interviews indicated that legal aid in divorce or support cases is currently available in all cases for low-income persons in only three jurisdictions: Manitoba, Saskatchewan and the Northwest Territories. All of these locations perform “needs” testing to determine the financial means of their clients. In some areas in Newfoundland, Ontario, Alberta and British Columbia, legal aid is available for low-income persons in critical or urgent situations, such as those involving domestic violence. In Ontario, legal aid advice lawyers also provide summary legal advice (up to 20 minutes of general advice) to litigants through the Family Law Information Centres. In 1999, British Columbia legal aid coverage was extended to the variation of child support orders when the change in child support amount is expected to be at least $100 per month. (Recent funding cuts to the British Columbia Legal Services Society will likely change legal aid coverage for family law matters in British Columbia. However, at this time the Legal Services Society has not announced how it will manage the cuts). In Nova Scotia and the Yukon, needs-tested legal aid is available to the point when the client files the divorce petition. Only in New Brunswick are legal aid services available to all recipients of child support without needs testing. Free mediation services are available, and for those for whom mediation is inappropriate, not possible or unsuccessful, legal representation services are provided. However, these services are available in family cases only until the client files a petition for divorce.
A4.4 Education Programs for Separating Parents
While education programs for separating and divorcing parents are not formally linked to the Guidelines initiatives, most of these programs were established about the time that the Guidelines were being introduced. These programs provide information regarding the Guidelines and other issues to separating and divorcing parents. There is great interest across Canada in programs that provide parents with information about the effects of separation and divorce on their children, as well as information about legal issues such as child support. Currently, programs are operating in St. John’s, Halifax, London, Ottawa, 27 Toronto and Whitehorse, and throughout Manitoba, Saskatchewan, Alberta and British Columbia. Programs are under development in several other sites.
Alberta and the Family Division of Nova Scotia are the only locations where the parenting education program is mandatory for all separating and divorcing parents prior to receiving a court order. In British Columbia, a pilot project for mandatory parent education was implemented in 1998 and sessions are now mandatory in several urban locations and voluntary in some smaller centres. In Saskatchewan, a pilot project for mandatory parent education was introduced in Saskatoon and Yorkton in October 2001. Parenting programs in other jurisdictions are optional. However, in all locations judges may require parents to take part in a parenting program as a condition of custody and access.
The content of the programs generally covers such topics as the following:
- stages of separation and divorce;
- effects of divorce on children;
- effects of divorce on parents;
- communication and relationship skills;
- information about other services, such as mediation and counselling; and
- legal issues, including child support.
Some programs, such as Alberta’s “Parenting after Separation Seminars” and Manitoba’s “For the Sake of the Children,” have special sessions for parents involved in high-conflict cases and cases when domestic violence is an issue.
Most courses take between three and six hours in two or three sessions and are conducted as group presentations varying from 10 participants to 75. In Nova Scotia the presenters are trained volunteers with professional backgrounds. In Saskatchewan, the facilitators for these sessions are from the Family Law Support Service Branch (Court Services) and Mediation Services of Saskatchewan Justice. In other provinces, the presenters are either salaried or paid on a fee-for-service basis.
Saskatchewan has also recognized that children experiencing separation and divorce could also be left confused, worried and unsure of their new family situation. To help children of separated and divorced families understand their situation, Saskatchewan Justice has worked with community agencies to make children’s educational programs available. A curriculum writer was hired to develop an education curriculum for children experiencing separation and divorce.
A facilitator’s guide was produced for three age groups (6 to 9, 9 to 12 and 12 to 16). The program addresses the legal process of divorce and separation as well as the emotional experiences and changes in the family relationships. To be used with the education curriculum, or to be viewed on their own, Saskatchewan Justice also produced videos for children in the same age categories. The facilitator’s manual and videos for children have been distributed to all provincial health boards, all young offender institutions in the province, all education districts, as well as libraries and community agencies.
In Ontario, all 17 Unified Family Court sites offer voluntary parenting information sessions, which focus on the effects of separation and divorce on children. General information on family law is provided through the Family Law Information Centres at these sites. Toronto Superior Court has a mandatory information pilot program under way. The content of this program is more general, since it provides a general overview of family law information and includes a component that focuses on parenting issues.
A4.5 Types of Divorce
Most divorces in Canada are uncontested and are granted without a personal appearance in court by either party. Uncontested divorces without a hearing are referred to as “paper divorces” in Nova Scotia and Saskatchewan, as “affidavit divorces” in New Brunswick, Prince Edward Island, Ontario and Manitoba, and as “desk divorces” in Alberta, British Columbia, Yukon and the Northwest Territories. Only in St. John’s must the petitioner appear before a judge for an uncontested divorce, in what is known as a “forthwith divorce.”
The other type of divorce found in all jurisdictions is a “trial divorce,” which occurs when the granting of a divorce, or more typically a corollary issue like child support, is contested. In Newfoundland, Manitoba and in a number of sites in Ontario, pre-trial settlement conferences are conducted by a judge (other than the one who will conduct the trial) using a number of different dispute resolution techniques to attempt to settle a case. In Alberta, pre-trial settlement conferences and mediation are also offered by judges.
A number of sites also identify a third type of divorce. These are called “oral hearings” in Ontario and Manitoba, and “chambers divorces” in Prince Edward Island, Saskatchewan, British Columbia, Yukon and the Northwest Territories. These hearings are conducted in the judge’s chambers, rather than in open court.
A4.6 Preparation of the Order
Once the judge makes a decision regarding the divorce and child support (called a Divorce Judgement in Figure A3.1), a written order must be prepared. In almost all the study locations, the legal counsel for the petitioner or respondent is responsible for drafting the interim or final order, which is then usually checked by a clerk. At some sites (for example, St. John’s, Halifax and Charlottetown), the clerk or child support officer prepares the interim or final order in cases where parties are not represented. In Whitehorse, the filing clerk ensures that specific pieces of information are included in the order.
Alberta appears to be the only jurisdiction where all forms of order for consent and uncontested desk applications (whether submitted by lawyers or unrepresented) are checked by FLIC staff or clerks of the court against the Guidelines in general and to ensure compliance with section 13 of the Guidelines. A summary of the review, or a review memo, is provided to the judge. This review memo includes advising the judge of any agreements to depart.
In more than half of the jurisdictions where legal counsel prepares the draft order, the time lag between granting of the divorce judgement and the filing of the order (issued and entered) can often be lengthy, taking up to eight or nine months. However, regardless of how long it takes to get the order, the divorce judgement takes legal effect 31 days after the judge makes the order (unless an appeal is filed).
Some of the language of the orders can be problematic. While some of the language of the Guidelines seems to have been readily adopted (such as sole and split custody), terms like joint guardianship, joint custody and joint legal custody simultaneously appear in orders. While these terms usually mean “joint decision making,” their meaning is ambiguous.
Many sites have standard court order forms that have incorporated the requirements and language of the Guidelines (for example, St. John’s, Alberta, Halifax and Saskatchewan). In Saskatchewan, rule 626 for judgement and rule 630(10) set out what is to be included in a child support order, which is to be separate from a divorce judgement, per rule 626(2). However, in the Family Law Division in Saskatchewan there is not a specific form, but practice directives are issued. Other jurisdictions, such as Prince Edward Island and Manitoba, are revising order forms to incorporate the Guidelines. Manitoba has developed computerized court orders to standardize and speed up the production of final orders. A number of other jurisdictions have expressed an interest in Manitoba’s model.
Given the qualitative nature of the information used to produce this part of the report and the limitations of the study (identified in section A1.2 above), it is difficult to draw firm conclusions. However, descriptions of the processes of divorce and child support orders across Canada lead us to some broad conclusions and some insight into what might be important for the successful implementation of the Federal Child Support Guidelines. Five general observations derived from the information in this report are briefly discussed below.
A5.1 Progress Towards Full Implementation
Based on site visits and follow-up telephone interviews, it is clear that staff at the study sites are strongly committed to full implementation of the Guidelines. While the rapid change and the variation in the rate of change from jurisdiction to jurisdiction make it difficult to study the implementation of the Guidelines, such variation itself permits us to draw valuable information.
A5.2 Jurisdictional Differences in the Process
All divorces in Canada are governed by the Divorce Act, and there is basically one general divorce process as described in Figure A3.1. However, the report highlights a number of issues related to the varying availability of information and legal services and the varying procedures that can affect how a couple may experience the divorce process. Further, the report highlights the importance of administrative supports (such as FLIC staff checking applications in Edmonton) to ensure consistent treatment of spouses and children. These factors vary among study locations and even within some jurisdictions. Therefore, the processing of divorce cases varies widely in different parts of the country.
More consistency in the treatment of cases involving children is one of the objectives of the Guidelines. How various aspects of the divorce process increase or decrease consistency should be an important component in any review of the Guidelines.
A5.3 Importance of Administrative Procedures
This report documents the importance of using standardized administrative procedures in implementing the Guidelines. Particularly important is the use of standardized court order forms to collect and list Guidelines information. In locations where standard procedures and forms have been implemented, use of the Guidelines is virtually universal.
A5.4 Importance of Having Judges Committed to the Process
At sites where key judges actively support the Guidelines, implementation seems to be occurring faster. Practice directives from Chief Judges seem to be very effective in supporting use of the Guidelines. The trend toward the implementation of Unified Family Courts also seems to contribute to adoption of the Guidelines.
A5.5 Progress Towards Provision of Public Legal Information
At all sites, efforts are being made to improve access to the public of information about child support and divorce in general.
21 In Alberta, the Rules of Court and Practice Notes provide for the filing and serving of a Notice to Disclose. The practice of the Court is to strictly enforce the remedies, including costs, in the event of non-compliance.
22 In Canada, a couple may live “separate and apart” in the same residence if they cease to live as a “family unit,” suspending sexual, economic and social ties. However, this is very rare.
23 There are provisions for a “substituted service” (e.g. publication of a newspaper notice) in cases when a respondent cannot be located. The petitioner has six months to serve the petition, and the court may extend this time.
24 In Alberta, the respondent will often file a Demand of Notice when the divorce is not contested. This is not a defence, but a response that ensures that he or she is notified of every application. While not frequently done in Saskatchewan, the rules also allow the respondent to file a Demand for Notice.
25 In Saskatchewan, after the parties have indicated that they are ready to proceed to trial, a pre-trial hearing conducted by a judge of the Court of Queen’s Bench (who will not be the trial judge) must be held. This conference is attended by the parties and their counsel. Its purpose is to attempt to mediate a settlement or, if this cannot be done, to obtain agreement on as many issues as possible in order to reduce the length of the trial. Pre-trial conferences are also held in St. John’s, Nova Scotia, Manitoba, Alberta, and at some locations in Ontario. In Ontario, a new set of Family Court rules came into force in all Unified Family Court jurisdictions (also in all provincial courts) in the fall of 1999. The new rules introduced a system of judicial case management for all family cases. Under the new rules, there are three types of pre-trial conferences for contested cases: (1) a case conference; (2) a settlement conference; and (3) a trial conference. The rules require that a case conference be held in every contested case; a settlement conference must be held before the case can be placed on the trial list; and a trial management conference is required only when requested by a party or ordered by the judge (intended for long, complex trials). The parties must attend all conferences in person. In Yukon, a pre-trial conference or settlement conference is available and usually is used if the parties are represented by counsel.
26 In the unified family courts and provincial courts in Ontario, examinations for discovery can only be conducted with leave of the court. In Saskatchewan, this only occurs for property issues. The court’s permission is required to examine with respect to custody, access or support issues, and this is rarely requested.
27 Programs in the Ottawa and London unified family courts, along with the other Unified Family Courts in Ontario, focus on parenting issues rather than legal issues. Toronto’s program covers both aspects.
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