REPORT ON FEDERAL-PROVINCIAL-TERRITORIAL CONSULTATIONS
APPENDIX C: REPORT ON ONTARIO WORKSHOPS
Workshops on custody and access were held across Ontario at the following locations: Ottawa on June 6, 2001, Thunder Bay on June 18, 2001, Toronto on June 19, 2001, and London on June 22, 2001.
The following topics were discussed:
- best interests of children;
- roles and responsibilities of parents; and
- family violence.
Some points were also raised with regard to child support and other financial issues.
Some women's groups boycotted the workshops in Ontario. The reasons cited included that the consultation document and process fail to acknowledge women's realities in marriage, their vulnerability to violence and poverty, and the highly conflictual nature of many parents' separation from each other. The organizations indicated that the consultation document does not make a single reference to women. However, some of the boycotting groups elected to participate through the submission of written briefs, and these have been incorporated into the main report.
During the workshop in Toronto, a bomb threat occurred and the discussion was temporarily disrupted. The workshop was then relocated and continued in the new location.
SUMMARY OF THE DISCUSSIONS
BEST INTERESTS OF CHILDREN
What are children's needs when their parents separate?
The discussion on children's needs after their parents separate was wide-ranging. Although there was some agreement on several of the points raised, in some cases participants took different stances with regard to the same issue. Some participants were also of the opinion that children's needs are so closely tied to the well-being of the parents that it was pointless to discuss the children's best interests before discussing the needs of parents.
Safe, Stable and Healthy Living Environment
Although it was acknowledged that each family's situation is unique, there was general agreement that children need a healthy, safe and stable environment throughout the divorce and separation process. Participants felt it is important for parents to make sure that their children know they have the unconditional love and support of both parents. They also felt it is important to maintain a routine and continuity in the children's lives (through, for example, activities and hobbies) and to ensure predictability.
Some participants considered the economic well-being of both parents a part of ensuring a stable environment for the children. Others thought the financial situation of either parent should not be considered as a factor in making custody and access decisions.
Some participants talked about the need to protect children from violence. Some approached this in terms of gender, explaining that it is the mother's role to nurture children and the father's role to protect them. Others felt that both parents could protect their children. Still others noted that protecting one's children can sometimes mean protecting them from one's self.
Protecting Children from the Legal Process
Participants addressed the importance of shielding children from the legal system and the court process. They felt parents should never use children as leverage or "pawns" to gain control of the situation. They emphasized that children should be free to be children.
In particular, some participants felt that children should be protected from witnessing any kind of conflict or violence between parents.
Changing Developmental Needs
Participants felt there is a need to acknowledge that children's developmental needs change with age. Some participants stressed the importance of the child developing a positive self-esteem and their own cultural identity. Children should be able to learn from both parents about their different cultural backgrounds.
Access to and Support from Parents, Extended Family and the Community
Participants felt that children need a sense of support from their parents, community, schools and extended family. Maintaining and developing relationships with parents, extended family and other community members was considered particularly important. Some participants said the key factor in allowing these relationships to flourish was sensitivity on the part of both parents to the child's relationship with the other parent. Other participants noted that, when it is not suitable for the parents to care for the children, extended family members should be considered as possible caregivers.
However, some participants pointed out that, in some situations, access to parents and extended family members may not be in the best interest of the children. For example, in situations in which violence is a concern, children should not be forced to maintain contact with parents or extended family members who might put them in contact with the abusive parent. Other factors noted that should affect decisions about access to a parent or another individual (e.g. an extended family member) included mental and physical health and living standards.
Some participants felt that children should be free to decide which parent they want to live with.
Parents must establish open and honest communication with their children to ensure that they understand what is happening and have an opportunity to express their opinions and concerns. There is a need to establish an adequate support system to make sure parents are aware of, and are able to properly address, the needs of the children during the divorce and separation process. Parents should reassure children that they have the right to make decisions, and that the decisions regarding them are not made solely by anonymous representatives of support services or the legal system.
Should the federal Divorce Act specify factors to consider when determining the best interests of children? If so, what should they be?
Many participants suggested that children's needs were not adequately listed in the consultation document. Their suggestions for other needs that should be addressed are discussed above.
With regard to the Divorce Act, participants made the following comments.
- Some participants referred to the Divorce Act as a legislative tool that should enforce the principle of having both parents involved in the child's life.
- Many participants pointed out that the system should enforce a "win-win" motivation, so that it does not promote the idea of one parent being the "loser".
- Some participants felt that divorce legislation should reflect the fundamental rights of the child in accordance with the law. They made reference to the United Nations Convention on the Rights of the Child and the Canadian Coalition for the Rights of Children.
- Most participants agreed that the law must thoroughly consider the history and context of each family's situation and ensure that children's needs are the main focus.
- When determining how parenting time is divided, the law must ensure that children are protected from conflict during the legal process, especially in cases of family violence.
What Services are Needed for Children?
Participants identified several characteristics that they felt services for children should demonstrate. These were accessibility, openness to different needs, and focusing on the best interests of children.
Some participants felt that children's views and opinions need to be better heard and represented during the divorce process. In order for this to occur, they suggested:
- making access centres and other facilities (for example, the courts) into more comfortable environments for children (by making them less institutional);
- developing positive, accessible and comprehensive information services for children of all ages; and
- enabling greater access to children's advocates and lawyers.
Some participants felt that children should have better access to support throughout the process. They suggested that this could be accomplished through increased funding for shelters and ensuring that front-line services and staff are accessible to children who witness violence. Some of these participants also stressed the need for mandatory counselling for parents to help them better understand the children's experiences.
Other participants suggested that facilities be made more accessible and comfortable so that parents in jail can maintain contact and spend time with their children.
Openness to Different Needs
Some participants felt that services and programs for youth must acknowledge age, gender, culture and other issues affecting children's needs. They suggested that one way to provide such services would be through the school system.
Focusing on the Best Interests of Children
Participants emphasized that a consistent system must be developed to evaluate each situation based on the best interests of the children and to ensure that children are not used as "pawns" or leverage in the divorce process.
ROLES AND RESPONSIBILITIES OF PARENTS
What factors enable good parenting after separation or divorce?
Participants felt that in order to ensure good parenting after divorce the children's needs must be considered first. They generally felt that both parents are responsible for ensuring that children are provided with the necessities of life in a safe, stable and healthy living environment. This responsibility includes meeting the needs of the children, as expressed above (addressing their emotional, financial, physical and spiritual needs), and recognizing that these needs will change as the children grow older.
Some participants expressed this idea with the term stewardship, which they felt de-emphasized ownership of the children and replaced it with other roles, among them that of teacher. To these participants, stewardship emphasized the role of each parent in meeting the children's needs while they are in their care. However, participants differed about who should carry out that responsibility and how it should be done.
A Parenting Plan
Many participants advocated that parents agree to a shared-parenting plan to define the nature of the relationship between the children and each parent, and to ensure that the responsibilities outlined above are carried out. Some participants consistently supported the concept of shared parenting, saying that parents should share the roles and responsibilities as they did before the divorce or separation. Others felt it would not always be possible for each parent to have equal involvement. They noted that when the parents cannot get along and communicate they probably will not be able to agree on a parenting plan. They also noted that adequately assigning parenting responsibilities within a shared parenting framework might prove difficult, and therefore some responsibilities might not be met.
Some participants said that when the parents are not able to develop their own parenting plan, better support services should be available from the community. A more in-depth discussion of specific suggestions made by participants with regard to services is provided below.
Participants felt that parents must realize that they are accountable for themselves as well as their children. They felt both parents must understand what each is accountable for during the separation and divorce process. Parents should be accountable for ensuring that children are not forced into a caretaker role (either for the parent or their siblings) and not put in the middle of conflict situations.
Some participants said parents should be held legally accountable for good and bad parenting, and others said a reputable, accountable representative (child advocate) should be available for the children throughout the legal process.
Parent-parent Relationship and Parent-child Relationship
Participants felt that developing and maintaining healthy parent-parent and parent-child relationships was an important parental responsibility. In order to foster these relationships, participants said parents should:
- ensure that they do not involve the children in any disputes between them;
- communicate openly and honestly with the children about what is happening throughout the divorce process;
- listen to the children's point of view and acknowledge their opinions and concerns;
- maintain a non-violent relationship with each other and with their children;
- recognize the significance of the other parent's role with the children, and acknowledge how the children may be interpreting the situation;
- be sensitive to the other parent's feelings; and
- make space for the other parent to continue the role he or she had before the divorce and not attempt to replace the other parent.
Many participants felt access to the children was a key factor in developing a healthy parent-child relationship. They acknowledged the possible long-term implications that denial of access might have on the relationship between the non-custodial parent and the children. Some of them advocated developing new terms (avoiding those with negative connotations, such as visitor) and addressing situations in which access is being denied.
Other participants addressed the issue of when access is not being exercised, emphasizing that this also has a negative impact on the parent-child relationship.
Some participants recognized that parents who have limited access to their children may not fulfil all of their roles and responsibilities. They pointed out that non-resident parents are often confused about their role, and suggested that there be more support services available to ensure that both parents clearly understand what is expected of them.
Education and Counselling
Some participants addressed the need to educate people on the roles and responsibilities of being a parent. In particular, they felt that people must understand that the time a parent spends with a child is a privilege, not a right. Other participants emphasized that counselling has a role to play in helping parents focus on their children's needs rather than their own.
What services would be helpful to parents who are trying to reach an agreement?
Some participants, particularly those from the London area, acknowledged that the services available in their region are good. At the same time, they stressed the need for quality standards across the country. Other participants felt there is a need for improved awareness of, access to, and funding for these services. Still others said the services available in their communities were very limited.
Some participants felt that accessing support services and information before the divorce and separation process begins should be a mandatory step for all parents.
Improvements to Existing Services
Many participants discussed the need to improve the public's awareness of services. Suggestions for doing so included:
- public service announcements presenting all possible options available (some participants said these should promote mediation as an option);
- using commercials and advertisements to eliminate stereotypes, create awareness and promote children's best interests;
- inaugurating a 1-800 line for parents going through a divorce or separation;
- educating people about parenting roles and responsibilities before adulthood;
- developing resource centres for parents so they can educate and help themselves without lawyers; and
- providing clear, comprehensible and accessible information on divorce and separation procedures, the legal system and support services.
Training and Regulation
Some participants felt that improved training and regulation of service providers and others involved in the divorce process (such as judges and lawyers) would improve existing services. For example, they felt these individuals should have:
- clearly defined roles in the process;
- education and support in implementing any new terminology or changes to the Divorce Act;
- training in issues of violence, human rights and cultural identity; and
- training in collaborative law (which is used in many parts of Ontario).
Some participants highlighted that this training should be standardized across the country.
Coordination and Collaboration
Some participants felt that services would be improved through greater collaboration among the different levels of government and between governmental and non-governmental services. Federal and provincial governments should develop an integrated policy to ensure adequate funding and accessibility of services. Furthermore, changes to the system should include the development of thorough guidelines and standards to ensure that all factors (economic, social, psychological and emotional) relating to each parent are considered when addressing custody and access issues.
Other participants felt that services available should be evaluated and, when possible, combined to improve efficiency.
Characteristics of Services
Participants emphasized several characteristics that they felt all services, existing and new, should have.
Addressing Gender Issues
Both male and female participants felt that services should take gender issues into account. However, they differed considerably on what they meant by this statement.
Many men's groups felt that men are often denied funding and services, and that there is little support for fathers throughout the divorce process. They pointed out that there are few shelters or transition houses that provide services for men. These groups felt that this gender bias in services (as well as in laws, policies and publications) must be eliminated, and that there should be equal funding of men's and women's services and equal access to financial support services (such as legal aid).
In response to this point, some women's groups said women are still more often than not the primary caregiver, and that some traditional generalizations about men's and women's roles are often true in real life.
Many participants also felt that the government must stop negative stereotyping of single parents, both male and female.
Sensitivity to Special Needs and Culture
Participants felt that appropriate services must be available to meet the different needs of parents. They highlighted the need for services that fulfil the following:
- address the needs of substance abusers and the mentally ill;
- are more culturally sensitive (including to the needs of Aboriginal families);
- validate the parenting abilities of those with disabilities and of gays and lesbians;
- are available in languages appropriate to the parents and children involved;
- address the needs of biracial and bicultural families; and
- address, specifically, the special needs of families experiencing violence.
Some participants raised the issue of improving the availability of support services (including legal aid) for both men and women in rural areas.
- They felt that service providers and legislation must specifically address issues of confidentiality in small communities. A special effort must be made in order to ensure the family's privacy is respected, as one family's situation often becomes common knowledge in smaller communities.
- They emphasized the need for education and support services, specifically in the smaller northern communities.
- They highlighted the lack of appropriate infrastructure (such as venues for family court meetings).
- They raised concerns about the quality of assistance available in rural areas (for example, some participants felt that lawyers and judges are sometimes ill-informed about the cases they are handling).
Specific New Services Needed
Some participants suggested that new services are needed in their areas. These suggestions included supervised access centres, services addressing financial needs, alternatives to the legal system, preventative services, changes to existing legal services, new materials and community-based services.
Supervised Access Centres
Some participants felt that supervised access centres should be better funded. Others felt that existing centres could be improved by developing clearer and more accessible pick-up and drop-off arrangements in order to help parents avoid and manage abusive situations. Another suggestion was that more people-friendly facilities be developed that acknowledge the different needs of children in various age groups.
Other participants noted the need for developing an alternative to supervised access and visits, as they are an infringement on parents' and children's rights. Parents are frequently unable to continue a "normal" relationship with their children when their meetings are monitored or chaperoned.
Some participants emphasized that the system and services must recognize that, in some circumstances, one parent is unable to provide financially for the children. Others felt that parents should have equal financial responsibility for the children regardless of their personal situation. Suggestions for new services dealing with financial issues included:
- an assessment of the financial capacity of each parent should be undertaken before financial responsibilities are allocated (such an assessment would include a "thorough and fair" analysis of each family's situation); and
- guidelines to ensure that proper funding and support services are available, so both parents are capable of providing financial support for the children.
Alternatives to the Legal System
Some participants expressed concern about the role of the legal system in the divorce process. The participants would like to see the family law system place more emphasis on parents working out their own parenting agreements, while providing adequate support and mediation services when needed. They felt there is a need to develop alternatives to the legal system.
Some participants said mediation would help keep families out of the legal system and enable them to avoid the adversarial nature of that process. Through mediation, parents would be able to establish a balance of power and adequately determine their respective decisionmaking responsibilities.
Other participants felt there were caveats to the use of mediation as a way of developing parenting agreements. They stressed that:
- mediators must be properly trained to identify persons who can benefit from mediation services;
- service providers must realize that mandatory mediation is not always appropriate, especially in situations of violence as a person's safety may be at risk; and
- mediation requires people to work willingly together in a safe and respectful way to determine a parenting agreement.
Some participants discussed the need for a plan that addresses the high divorce rate by focusing on keeping marriages intact, as opposed to getting involved in the divorce industry. They called for preventative services such as:
- mandatory marriage preparation courses and services offered by religious institutions;
- services that could provide options and views from people who do not have a vested (financial) interest in the divorce industry;
- pre-marital counselling and advice;
- pre-parenting seminars;
- parenting plans; and
- education programs on the implications of separation and divorce.
Some participants felt that schools interfere too much in family situations, and that social service agencies undermine non-divorce resolutions to family problems.
Some participants felt that the legal system and support services should ensure that both parents have access to school and medical information about their children. Others said that greater integration was needed between federal and provincial family law legislation. Still others highlighted the need for better communication and flow of information between criminal court and family court.
Participants at the Ottawa session suggested the development of a parenting plan, guidelines, and books and publications to specifically address the needs of the children. One commented that the government should avoid publication of documents that advocate removing children from their parents' custody. Also, the government must eliminate the gender bias and the general assumptions and suggestions of "criminal activity" that are often made in government publications. Specific reference was made to two documents: Où est ma place? (Government of Ontario) and À qui vont les enfants? (Community Legal Education Ontario).
Some participants felt that more emphasis should be placed on the development of community-based services specializing in divorce and separation and parenting, as well as counselling and mediation for parents and children. Suggestions for such services included:
- resource centres for parents, so they can educate themselves about the legal process;
- a comprehensive community-based clinic outside the legal system that specializes in separation and divorce and the reconciliation of parents and children;
- more services for victims and witnesses of violence to ensure they have access to counselling, guidance and support; and
- referral offices that could promote a greater public awareness of existing services.
Some of these participants noted the Durham Pilot Project, which focuses on family conflict resolution and counselling services, as a specific example of what community-based services should be.
New terminology: what do you feel is the appropriate message to include in the legislation?
Many participants agreed that the terms custody and access are not appropriate. They felt that these terms had negative implications, are often misinterpreted, and are too narrowly defined. Some of these participants felt that new terminology is needed to eliminate bias in the legislation, educate people and change their views of children as property or something to be controlled, reflect individual parents' respective interests and capabilities, and be more culturally sensitive and gender-neutral.
Two themes echoed throughout the discussion on terminology. One was the need for more recognition of women's and men's issues. The other was the question of whether legislation should be worded so as to take into account the majority of cases or the most difficult of cases.
Some participants felt the proposed options for terminology were too vague and unclear.
Keep current legislative terminology.
There was some support for keeping the terms custody and access, but defining them more clearly (in a definition that gives consideration to issues of family violence). Others participants supported the current terminology because it provides a simple framework by which custody and access arrangements can best be determined.
Some participants described the current terms as too "legalistic" and offensive. They felt that there should be a comprehensive review of the system and terminology. Men's groups were explicitly concerned with the need to legally allow men to be more involved in the parenting process. They felt that current legislation does not allow parents to "share" parenting, in that they often do not share the financial benefits (i.e. Bill 118 (5) income tax law) and in that there is gender bias in tax benefits (Bill 122). They felt that legislation should address and define parents' rights, so that parental responsibilities can be adequately delegated and implemented.
Clarify the current legislative terminology and define custody broadly.
Some participants said the current terminology should be clarified, and therefore they supported option 2. Some of these participants thought the other suggestions for new terminology (options 3 to 5) would not necessarily change the situation and that changing words might not clarify understanding.
Some participants suggested that a preamble be added to the Divorce Act that establishes a "threshold" to clearly address issues of violence, culture and language, and includes these factors in the development of new terminology.
Other participants suggested defining custody more broadly to include the concept of parental responsibility, which would indicate privilege as opposed to ownership.
Define custody narrowly and introduce the new term and concept of parental responsibility.
Some participants supported further developing the term custody while adding the concept of parental responsibility. They said clear definition of parental responsibility is needed. They also mentioned that legislation should be changed to permit parents to develop their own parenting plan, and that only when this is not possible should the courts determine custody and access.
Replace the current legislative terminology and introduce the new term and concept of parental responsibility.
Some participants felt that parental responsibility was a more appropriate option than shared parenting. Some supported parental responsibility because they felt it offered more options for addressing violence. Others suggested the following for implementing parental responsibility:
- emphasis should be on using available resources to identify people who can instruct parents and provide a safe place for people to solve their own problems, instead of relying on the judicial service;
- parental responsibility should be re-worded as nurturing responsibility; and
- for parental responsibility to be successful, parents' rights should be clearly defined.
Replace the current legislative terminology and introduce the new term and concept of shared parenting.
Some participants were against introducing the term shared parenting. They argued the following:
- In other countries, the implementation of this concept has resulted in increased in conflict or problems in which when violence is an issue. For example, in Australia, violence is not adequately addressed under this model, partly because judges are not properly informed and trained, and therefore default to a 50-50 split all the time.
- The concept of shared parenting and the emphasis on gender-neutral language puts women and children at risk. For example, it was suggested that this option would put the onus on women and children to prove that they are being abused and that parenting cannot be shared.
- This concept implies that parenting responsibilities can be equally divided, and this is not realistic in all cases.
- This concept creates a dangerous presumption that equality exists between the parents before and after the separation.
- There is a need to be cautious in assuming that parents are capable of "working it out," especially in circumstances of abuse.
- Children might not be able to adapt or cope with shared custody, as it is often too disruptive to their routine (especially young children).
Other participants supported the option of shared parenting. They argued the following:
- Legislation should start with the presumption of equality.
- It is in the children's best interests to have access to both parents.
- Parenting should not have a bias and should be automatically shared. The law should ensure that fathers have equal access to their children.
- Parents should be able to make arrangements to divide tasks according to their specific capabilities, recognizing that it may not be possible to have an equal division of responsibilities.
- Shared parenting would lessen the need for services.
Some participants felt that legislative terminology must consider issues such as violence against women and men, cultural differences, and financial, physical and emotional restrictions and capabilities. For example, if one parent is suffering from a mental illness (e.g. depression), it may not be appropriate for him or her to have equal responsibility for the children. Each family's situation is different, and there are many variables to be considered in developing a parenting plan. One factor that must be considered with regard to shared parenting is that one parent may have to relocate due to job or schooling, which will interfere with his or her ability to share responsibilities.
Other participants proposed the following options.
- A new option termed equal shared parenting, according to which parenting and decisionmaking would be shared 50-50 (all aspects).
- Implementing the 48 recommendations of the Special Joint Committee on Child Custody and Access.
- A 50-50 split should be the default, except when one of the parents is gay or lesbian, in which case the gay or lesbian parent should not have custody 50 percent of the time because children need parents of both sexes.
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