Putting Children's Interest First - Federal-Provincial-Territorial Consultations on Custody and Access and Child SupportAPPENDIX C:
DEPARTMENT OF JUSTICE CANADA PAPERS
The following projects have been completed and the reports have been or will soon be published. Some of these reports may be available on-line, and all of them can be accessed by calling 1-888-373-2222.
Selected Statistics on Canadian Families and Family Law (by Department of Justice, Child Support Team) (CSR-2000-1E/ 1F)
This document brings together and presents family law and family-law related statistics relevant to child support and custody and access. The report was prepared by the Research Unit of the Child Support Team and draws upon a range of data sources.
Custody, Access and Child Support: Findings from the National Longitudinal Survey on Children and Youth (by Nicole Marcil-Gratton & Céline Le Bourdais)
This research project provides empirical information on what happens to children after their parents separate in terms of custody, access of the non-custodial parent, and child support payments. This information aims to help develop policy on child custody and access based on solid statistical data on what is now happening in Canadian families. The authors analyze the data from the Family History and Custody section of National Longitudinal Survey on Children and Youth. Over 22,000 children, up to 11 years of age, were first surveyed during the winter of 1994-1995. The sample is organized in a way that gives a good cross-section of data at each cycle, as well a sample to be followed over time at the rate of one survey every two years. The content includes a wide range of issues touching on the children's levels of development and their socio-demographic background.
Focus Groups on Family Law Issues Related to Custody and Access (by S.A.G.E. Research Group) (2000-FCY-5E/ 5F)
This project consisted of a limited number of focus groups undertaken to assist in the development of policy options relating to child custody and access. A total of three ten-hour focus groups were conducted between March 8 and March 16, 2000, with parents of children under 18 years in various locations across the country. Parents were brought together to review materials, discuss options, and let their views be known concerning (i) which
"best interests of the child"criteria should be used in the reform of the family law system, and (ii) child custody and access terminology and possible alternatives to these terms.
The final report discusses the results of the focus group testing by summarizing the views expressed and by outlining the underlying values and rationales that lead the public to those choices and preferences. By its very nature, qualitative research is exploratory and directional only. It does not seek to quantify the results of the research nor do the research results project statistically to the attitudes and opinions of the population as a whole. Focus testing does, however, produce a richness and depth of response not readily available through other methods of research.
Divorce Reform and the Joint Exercise of Parental Authority: The Quebec Civil Law Perspective (by Dominique Goubau, Professor, Faculty of Law, Laval University) (2000-FCY-3E/3F)
This paper reviews the Quebec civil-law concept of the
"joint exercise of parental authority."It describes the concept and provides a critical analysis of how it is applied and understood in Quebec. The purpose of the paper is to examine whether, in the context of divorce reform, the Quebec civil law offers an alternative in terms of parental roles.
The Voice of the Child in Divorce, Custody and Access Proceedings (by Ronda Bessner, Legal and Policy Consultant) (2001-FCY-1E/1F)
This paper examines ways that the voices of children can be heard during divorce, custody and access disputes. A central thesis is that children be given real and not merely symbolic roles in legal hearings that affect their lives. The paper begins with a discussion of the dichotomy between protecting children and promoting their interests. Article 12 of the United Nations Convention on the Rights of the Child is then examined. The paper also explores whether children should have the right to independent legal representation and analyzes three different models of legal representation. As well, the paper discusses communicating the views, interests, and wishes of the child by third parties to legal decision-makers. Suggestions are made to policy-makers and legislators about support mechanisms and advocacy services that should be available to children.
Keeping in Contact with the Children: The Father/ Child Relationship After Separation from the Non-custodial Father's Perspective (by Céline Le Bourdais, Heather Juby and Nicole Marcil-Gratton, Centre interuniversitaire d'études démographiques, Institut national de la recherche scientifique, Université de Montréal)
The purpose of this project is to use the data from the 1995 General Social Survey (GSS) to further our understanding of the factors that affect the relationship between non-custodial fathers and their children after separation.
The GSS provides information directly from both male and female respondents on the frequency of contact they and the other parent maintained with their children. This survey thus has a unique advantage over most studies of father/ child contact, which rely almost exclusively on information provided by mothers. Although male and female respondents to the GSS were not reporting on the same children (i. e., they were not the two parents of the children in the sample), the researchers were able to build a picture of the way in which the separated fathers view the contact they do or do not have with their children. The project exploits the richness of the GSS data on the relationship between separated parents and their children, with particular emphasis on the point of view of men. It will first describe the characteristics and the values and attitudes of separated fathers, and then identify the factors and conditions that influence the likelihood that fathers will maintain contact with their children.
Allegations of Child Abuse in the Context of Parental Separation: A Discussion Paper (by Canadian Research Institute for Law and the Family) (2001-FCY-4E/ 4F)
The purpose of this project was to conduct research on false allegations of abuse in divorce proceedings; identify the relevant issues and trends that are documented by Canadian case law; and examine and assess the current response by the civil and criminal systems to allegations of child abuse.
The report sets out to address the following four questions:
- What are the current responses by child protection agencies and the civil and criminal legal systems to allegations of child abuse?
- What is the nature and extent of allegations of child abuse in the context of child custody and access disputes?
- What are the key issues associated with false allegations of abuse?
- What strategies need to be developed to appropriately deal with this problem?
The following projects have not yet been completed. It is expected that these projects will all result in published research documents in the coming year.
The Early Identification and Streaming of Cases of High-Conflict Separation and Divorce: A Review (by Ron Stewart, Family Therapy Associates)
The purpose of this research is to develop a knowledge base that will assist in identifying and managing high-conflict separation and divorce in Canada. The research will employ two basic methodologies: a review of the international literature, and interviews with select experts in the field of high-conflict separation and divorce.
In particular, the research will look at:
- existing definitions of high-conflict separation and divorce and levels of conflict in separation and divorce;
- currently available and used methods and mechanisms for identifying high-conflict separation and divorce; and
- currently available and used means and mechanisms for streaming high-conflict cases through the process of separation and divorce and child custody and access.
The final report will analyze the available information on the nature and scope of high-conflict separation and divorce in Canada, and treatments and interventions currently being used in cases of high-conflict separation and divorce.
Overview and Assessment of Approaches to Access Enforcement (by Martha Bailey, Faculty of Law, Queen's University)
This project will provide a comparative review of legal approaches to the problem of enforcement of access orders, and an analytical investigation of Canadian case law and legislation.
The comparative analytical review of legal literature will look at western common law jurisdictions including, but not necessarily limited to, Canada, the United States and Australia. The review will address such matters as learned opinion on the nature, extent and scope of access denial and non-exercise of access, best options for dealing with access issues, and possible models for application in Canada.
The review of legislation will include federal, provincial and territorial law on access enforcement. The review of Canadian case law on enforcing access orders will identify reported Canadian cases. As well, the review will analyze unwarranted access denial in Canada, the use of the law to litigate access enforcement and punish access denial, the problems for the courts and legal system, and how Canadian judges deal with cases of unwarranted access denial.
The Problem of Access: Legal Approaches and Program Supports (by Pauline O'Connor, Policy Research Consultant)
This project will analyze and review sociological research on enforcing access for non-custodial parents, custodial parents unreasonably denying access, and non-custodial parents not exercising access.
It will include an analytical review of western, common-law literature to uncover and assess existing evidence concerning the extent of unwarranted access denial on the part of custodial parents, and the non-exercise of access on the part of non-custodial parents. These jurisdictions will include, but not necessarily be limited to, Canada, the United States and Australia.
It will also involve an analytical review of existing programs and services. The objective is to identify and assess distinct program and service models in western common law jurisdictions for addressing access enforcement, and to review and assess any evaluation research on these programs and services. In particular, the program in place in the State of Michigan will be examined.
The third aspect of the project is to review research data needs respecting this issue. Existing research tools will be examined to assess whether they are suitable for collecting quantitative and qualitative data on unwarranted access denial and non-exercise of access, as well as the legal caseload of access enforcement. The review will compare existing Canadian data with data from other jurisdictions and the strengths, weaknesses and limitations of the data. It will include suggestions about what could be done in Canada in the short-term to improve data concerning unwarranted access denial and non-exercise of access.
Survey on Arrangements Dealing with Custody and Access (by Canadian Facts)
This project involves interviewing a small sample of parents from across the country on the subject of child custody and access to address the lack of baseline data on matters relating to child custody and access. The objective is to collect data that will address the following:
- Whether separated or divorced parents have child custody and access arrangements; and, if so, whether the arrangement is court ordered, written or oral.
- Details on the arrangement, such as who has custody, whether the non-custodial parent has access, and who makes the major decisions concerning the child.
- Whether the original arrangement has changed.
- What service or help, if any, parents used to reach their arrangement.
- Levels of satisfaction with the arrangement and with services used.
An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access (by Brenda Cossman, Professor, Faculty of Law, University of Toronto)
The objective of this paper is to sketch out and evaluate possible reform models to the child custody and access provisions of the federal Divorce Act. Three different options are identified. The first option works within the current language of child custody and access; the second option is based on a neutral model of parenting responsibility and parenting orders; and the third option adopts a model of shared parenting.
The first section of the paper reviews general goals and objectives for reform in this area and the general challenges associated with any reform of the legal regulation of child custody and access. It examines the potential role of terminological change in reducing conflict and promoting parental co-operation, as well as the role of law more generally in encouraging and promoting attitudinal and behavioural change among divorcing parents.
The second section of the paper examines the ways that other jurisdictions have tried to meet these challenges in the reform of child custody and access laws. Particular attention is given to the reforms adopted in the United Kingdom, Australia, the State of Washington and the State of Maine, although examples are also drawn from several other jurisdictions.
The third section analyzes the three options for reform. The discussion of each option includes the various policy choices and approaches that need to be considered. The relative advantages and disadvantages of each option are explored, taking into account the general reform objectives and the extent to which the options reflect the guiding principles for reform.
Further research projects are in development including: a second phase project on options for addressing high-conflict divorce; a critical review of parenting plans, including a compendium of model plans in use in Canada and elsewhere; a project exploring programs and services that address children's needs to have a say in their child custody and access arrangements; an overview analysis of empirical data on the risks to children of divorce; a literature review summarizing the comparative benefits and problems associated with different types of child custody and access arrangements; and an exploratory examination of the utility of non-traditional, or focused, interventions as opposed to more traditional child custody and access assessments.
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