REPORT ON FEDERAL-PROVINCIAL-TERRITORIAL CONSULTATIONS
APPENDIX C: REPORT ON NOVA SCOTIA WORKSHOPS
Workshops on custody and access were held in Halifax on June 27, 2001, and in Sydney on June 28, 2001. Thirty-five participants were involved in the workshops. Table 1 lists the participating organizations.
The following topics were discussed at the Nova Scotia workshops:
- best interests of children;
- roles and responsibilities of parents; and
- meeting access responsibilities.
SUMMARY OF THE DISCUSSION
BEST INTERESTS OF CHILDREN
What are children's needs when their parents separate?
Participants suggested that there must be a clear definition of what is in the best interests of the children. If a clear definition existed, judges would not have to determine a definition specific to each individual's situation. Participants said that it is necessary for the Divorce Act to set out factors that parents, service providers and judges should consider when determining the best interests of children, but that no single factor should be given priority over others. Most importantly, the uniqueness of each child must be reflected in any factors considered. The child's life should continue to be stable after separation and divorce. Participants discussed many factors that would help create such an environment, as set out below.
Emotional Support for Children
Emotional support for children should be readily available during and after separation or divorce. There is a need for additional resources to provide these services. Participants suggested that a children's advocate, working with parents and children, could help determine and focus on the best interests of children. The children's advocate could also provide a voice for children in court when required.
Children Expressing Their Opinion
Children should be able to express their preferences in discussions about their future. The significance of these contributions would depend on the children's ages, level of maturity and emotional stability. In many situations, children's view are not expressed or evaluated when changes occur in their lives. A review of the parenting agreement would ensure that it is still meeting the best interests of the children. This review should be mandatory and periodic.
It is in children's best interests for them and their parents to have access to educational resources at all stages of the children's development. Not only should parents and children be educated but also those making decisions that affect them. It was suggested that judges be more informed about the best interests of children in various situations.
Time as a Constraint
Timely decisionmaking is an important factor for children. Children's perception of the length of the process is different from that of the parents. The instability that would exist for children throughout a long separation or divorce process is not in their best interests. There should be sufficient resources available to ensure that the process can be not only informed, but also timely. The resources provided should include sufficient legal aid, parental capacity assessments and children's needs assessments.
ROLES AND RESPONSIBILITIES OF PARENTS
What factors enable good parenting after separation or divorce?
Participants came up with many factors that would enable good parenting after separation and divorce. Participants said that ensuring that people gain a better understanding of the responsibilities and obligations of parenting prior to becoming parents would be the ultimate way to create good parents. Participants said that education was the primary factor in enabling good parenting. Throughout the decisionmaking process the best interests of children must be considered, but this is often ignored when adversarial conditions exist between parents. Good parents put the children first. The creation of a parenting arrangement as soon as possible after divorce or separation would allow each parent to understand his or her role from the outset. Participants suggested that the community should provide support to parents in difficult or adversarial situations and encourage a community-based approach.
Participants said there was a need for parental education prior to and after separation or divorce. It was suggested that a lack of parenting skills contributes to unstable parenting. It was strongly suggested that if education started in primary or secondary school, it would lead to more stability in relationships and would therefore reduce possible parental conflicts after separation or divorce. In addition, people should be required to take a pre-marriage course that would cover parental responsibilities, as well as conflict resolution and communication skills. There should also be services available for developing conflict and anger management skills. These services should be readily available in various languages, taking into consideration different cultural backgrounds.
Before or after separation or divorce, skills-based divorce education courses should be offered that would provide the necessary services to parents, including addressing power imbalances and developing communication skills to reduce the number of high conflict separation or divorce cases.
Putting Children First
Participants recognized the importance of putting the children's interests first when making any decisions. After separation or divorce, the timeliness of the process is very important for the best interests of children. What may seem like a short period to parents may seem like a lifetime to children. If there were more resources for the parents at the time of separation or divorce, the amount of time it takes parents to make a reasonable arrangement would decrease. If there were mandated or legislated timelines, parents would be encouraged to come to a more rapid solution. Workshop participants said that there are not enough resources providing information to help parents.
It would be best for children if they knew from the outset where their primary home would be. It was suggested that if a primary caregiver existed prior to separation or divorce then, if possible, as an interim measure the primary caregiver should continue as the primary custodial parent until a co-parenting arrangement can be set up (which should occur as quickly as possible). It is important for children to continue in a similar lifestyle as before the separation or divorce. As the children's ages and lifestyles change, their best interests may differ. It is important to consider and review the situation as often as possible to determine that the children's interests are always being considered.
Creating a Parenting Arrangement
Participants felt strongly that parents should develop an amicable relationship as quickly as possible, which would benefit the children. It must be recognized that the relationship between parent and child is separate from that of parent and parent. A parenting plan or agreement should be created and followed as closely as possible by both parents, and it should encourage participation by both parents in the lives of the children. The children should not be isolated in a traditional family unit, but be encouraged to interact with extended family whenever possible. Many participants emphasized the need for parenting plans that encourage and facilitate contact with grandparents and other extended family members.
Participants suggested encouraging a community-based approach to enable good parenting after separation or divorce. A community-based approach, either formal or informal, would help those seeking or requiring assistance and support easily find the information they need. An informal support system would provide parents who are intimidated by a more formal system with support as required or desired. Currently, a long waiting list for formal services in some communities precludes getting support when needed. Moreover, a community-based approach would provide assistance to both parents and children. Children should be allowed and encouraged to interact with other children in similar situations.
A community-based alternative dispute resolution method would help parents developing parenting agreements and reduce dependency on lawyers or the courts. The courts may assist when required in, for example, high conflict situations after all community-based methods have been exhausted.
Participants advocated having a parenting coordinator to help parents implement and follow pre-determined parenting agreements. The parenting coordinator would keep parents focused on the factors that allow good parenting in difficult situations and on the best interests of children. A coordinator would be available to provide problem-solving advice whenever required.
Were you aware of the services offered in Nova Scotia?
Although the participants, for the most part, were aware of the services offered in Nova Scotia by government, they believed there were neither enough nor adequate services to meet the needs of parents and children. There is less information on the availability of the community-based services.
What suggestions do you have for improving awareness of the services?
Participants said there should be a more effective way of informing individuals about available government and community-based services. It was suggested that the Internet be used more effectively to advertise and increase awareness of services. In addition, it would be more effective to have information delivered or presented in the community, instead of having people look for services that may or may not be available. One suggestion was to have an open kiosk at frequently visited locations, such as shopping malls, community centres and medical centres, with pamphlets describing the government and community-based services available. Also, concern was expressed about the lack of services outside main urban centres such as Halifax and Sydney.
Participants suggested that services be improved to account for existing cultural differences; individuals seeking assistance often face language barriers
Additional Services That Should be Available
Participants suggested that services in addition to those the government and community services already provide are required to help separating or divorcing parents.
Would the use of terms other than custody and access make a difference in the way post-separation parenting arrangements are determined?
Participants generally preferred the use of terms other than custody and access, which set up adversarial roles in parenting. The term custody often implies ownership, and access often implies limits to parenting ability. With this terminology, one parent is often seen as the winner and the other as the loser. However, if new terminology were introduced, the new terms must still reflect the reality of the situation. Moreover, use of the current terms would be difficult to eliminate, as people feel they understand them.
Overall, participants said that shared parenting was a suitable term, but not appropriate for all situations and less flexible than other options. In this regard, other comments were as follows:
- Shared parenting is related to joint custody, and thus may lead to conflict and a power struggle.
- Shared parenting may be in the best interests of the children in most situations, but when the parents do not want the responsibility, forcing contact with children would not be positive for the children.
- The question would remain of who would have the onus of showing that shared parenting would not be in the best interests of the children.
- Shared parenting does not recognize the dynamics of all situations.
- For some participants, the term co-parenting was preferable to shared parenting, since it does not necessarily denote an equally shared parenting relationship.
- The term access should be replaced by the term parenting time, a less obtrusive term.
The participants suggested that the term parental responsibility would be the most workable, and could be easily adapted to the various parental situations that may exist. When a less balanced parental agreement is required, the term would reflect the situation, thus further defining the roles of each parent in the parenting plan. Participants made the following comments:
- The concept of parental responsibility could incorporate broad terms as required, removing the emphasis from the terms custody and access.
- The term parental responsibility does not assume a shared or equal parenting arrangement, but also does not eliminate one parent from having parental responsibilities.
- When one parent is to have only supervised access to the children, this should be phrased as having
"his or her parental responsibility reduced."
Introduction of any new terminology must not gloss over violence in a relationship. Participants felt that violence should be a factor in defining new terminology. Concerns about violence in a relationship should not be the main focus of the definition, but must be included as a concern in any parenting situation.
What are the advantages and disadvantages of the proposed terminology options?
The discussion about the options presented in the discussion guide echoed many of the points raised above on the use of terms other than custody and access. Workshop participants generally said that the terminology should be changed to offer flexible options for all parental situations.
Participants said that option 5 is not realistic, since not all parents would want or would be able to be an equal parent. It is also a reality that not all parents want to share parenting, and that shared parenting cannot be legislated. Participants agreed that the legislation should recognize the capability of parents to be equal, but also that the law cannot legislate equality where inequality exists. It was felt that parental responsibility would be a more effective term and would provide the flexibility needed in various situations.
Option 4, by which judges would be authorized to issue a parental responsibility order instead of a custody order, would describe and allocate the exercising of specific parental responsibilities between parents. This would be a flexible approach and would vary depending on the situation. It is important, though, that the definition of parental responsibility evolve, since what is best for infants will likely alter as they age.
MEETING ACCESS RESPONSIBILITIES
Participants said that the current system does not promote access responsibilities well. For example, it does not encourage supervised access arrangements. Participants felt that access is the right of children, and that parents should keep this in mind as they make choices. There is a need for more enforcement of access responsibilities, and mediation, although not mandatory, should be encouraged in separations and divorces. Participants also advocated a mandatory review of all parenting situations and parenting plans to be sure they are workable and acceptable to both parents.
Access is the Children's Right
Parents often do not keep their children's best interests in mind when making decisions. In most cases, the children's best interest is to have both parents available. Often, however, the struggle is between the rights of the parents and the rights of the children. The rights of the children must be considered when making decisions and meeting access responsibilities. The children's voices should be heard and taken into consideration. The denial of access by the custodial parent to the non-custodial parent is often a problem on Friday evening, and the 40 percent rule may play a part in that denial. Participants felt strongly about removing the emphasis on a 60-40 custody split and placing children's needs above the desire to deny access.
Enforcement and Resources for Access Responsibilities
In many cases when access requirements are not being adhered to, there must be a more efficient method of enforcement. There is much confusion about who is responsible for ensuring that access is met. Parents often contact police and lawyers to enforce the access requirements, but neither is able to help them. Workshop participants suggested creating a parenting or enforcement coordinator or officer who could help parents focus on what is best for the children and on the access agreement in place.
It was suggested that legislation clarify the role of police in enforcement and explain that it is not in the best interests of children for police to be involved in custody and access disagreements. Police enforcement should be mandatory only when violence may be an issue.
Currently, there are no remedies for denial of access, and non-compliance orders are not significant deterrents. Legislation must put more emphasis on the importance of following the agreed-upon arrangements. Participants suggested that mandatory mediation might help reinforce the importance of following access orders. As it is difficult to attend court whenever there is a disagreement, a mediator could help resolve disputes rather than the parents going to court. The court would be reserved for high conflict relationships, when mediation has not been successful or is not a safe alternative. The mediator could also help review custody arrangements.
To best serve children's interests, it should be mandatory to review all custodial arrangements regularly as they reach various ages. Although custodial arrangements may remain the same, alternatives should always be considered.
The lack of supervised access services is a concern and obstacle for those non-custodial parents who are unable to meet their access requirements and desires. It is in the best interests of children to have a safe and comfortable location to visit with the access parent. In many situations, however, it is difficult to find someone neutral to supervise and there are few places to go for supervised access. Workshop participants suggested encouraging Dad and Me programs. These have so far proven unsuccessful, but more encouragement would give fathers the support and security they often need and want.
How can the family law system encourage parents to meet their access responsibilities?
Participants said that the family law system could encourage parents to meet their access responsibilities by providing more education on the importance of access to the children. Further emphasis should be put on parenting plans that incorporate access arrangements. Also, as mentioned previously, improving supervised access facilities and providing mandatory mediation, except high conflict situations, would enable parents to meet their access responsibilities.
Further education should be provided to parents when they are having difficulty meeting access responsibilities. Resources should include divorce management courses that would emphasize parenting plans, build effective communication skills and reduce conflict. Anger management courses should be encouraged for individuals having difficulty accepting their situation, and therefore creating hostility in the children's environment. Educational and counselling services for children must also be provided.
Emphasis should always be placed on the significance and ownership of the parenting plan. The courts must emphasize that parenting plans are flexible and are an agreement between the two parents. The parents must believe that they created their plan together and that it is the most suitable arrangement for ensuring the best interests of their children. The courts should become user-friendly, so if changes to the parenting plan are necessary, the parents can come together and revise it.
Organizations Represented at the Nova Scotia Workshops
- Bryony House
- C.B. Family Place Resource Centre
- Children's Aid Society of Cape Breton and Victoria
- Cape Breton Regional Police Services
- Dalhousie Legal Aid Service
- Family SOS
- Feminists for Just and Equitable Public Policy
- Halifax Regional Police
- IWK Health Grace, Mental Health
- Metro Divorce Management
- North End Parent Resource Centre
- Nova Scotia Association of Social Workers
- Nova Scotia Legal Aid
- Second Chance
- Shearwater Military Family Resource Centre
- South Shore Family Resource Association/Family Support Centre
- Status of Women
- Supreme Court (Family Division)
- Veith House
- Victims' Services
- Women Centres Connect
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