REPORT ON FEDERAL-PROVINCIAL-TERRITORIAL CONSULTATIONS
SUMMARY OF THE CONSULTATIONS:
WORKSHOPS AND SUBMISSIONS
This section summarizes Canadians' responses to the questions asked in the consultation document. It includes input received through the in-person workshops and written submissions (briefs and feedback booklets). The information presented synthesizes the wide range of opinions put forward by Canadians on these topics.
In Canada, family laws relating to parenting decisions are based on the principle of the "best interests of the child." People making decisions that affect children during and after separation and divorce must take children's best interests into account.
Some, but not all, provincial and territorial laws list specific factors that parents are to look at when making decisions about their children. These factors include children's ages and special needs, their relationships with the important people in their lives, the role of extended family, cultural issues, the history of the parenting of the children and future plans for them.
Currently, the federal Divorce Act does not set out factors that parents should consider when determining the best interests of children. Some people think that it should. A list of factors might educate people about the things that they should consider when making decisions that affect their children.
There are varying opinions on this issue. Some say that listing factors would neither increase the predictability of outcomes nor decrease litigation. In fact, in comparing provinces and territories that have a list of factors with those that do not, there is very little difference in the types of custody and access orders issued. Adding a few key factors could be helpful, but having too many might make the list too long and difficult to use.
Respondents were asked whether adding factors to the section of the Divorce Act that covers "best interests of the child" would be helpful and, if so, what those factors could be.
The topic of best interests of children was addressed with two questions:
- Would adding factors to the "best interests" section of the Divorce Act help people make decisions about children that are in the children's best interests?; and
- If factors were to be specified, what should they be?
There were a number of positions presented in favour of and against adding a list of factors to the "best interests" section of the Divorce Act.
Reasons for Listing Factors
Some people suggested that federal legislation that identifies factors to be considered by judges and others is desirable and an improvement in family law. Listing factors in the legislation would do several things:
- greatly assist judges;
- provide guidance for divorcing parents who are developing their own parenting arrangements on what factors they might consider when looking at their children's futures;
- ensure that all relevant concerns regarding the best interests of children are considered in a systematic way within the decisionmaking process;
- compel parents and judges to consider a wider range of factors and family situations when determining children's futures; and
- dispel the mystery surrounding the rationale for decisions and instead promote clear and traceable decisions, leading to better understanding by parents.
Furthermore, participants pointed out that the definition of the best interests of the child has to recognize that the notion of the traditional family no longer applies to all families and that different types of families need to be accepted without stereotype.
Participants also suggested that it is important to harmonize federal legislation with provincial and territorial legislation. This would reduce confusion by providing a consistent framework for decisionmaking.
Reasons for Not Listing Factors
Some people did not agree that the Divorce Act should include a list of factors. Their concerns included the following:
- The presence of legislated factors might limit the discretion of judges to deal with the unique situations of divorcing couples;
- There is a risk that significant but unlisted factors would not be taken into consideration;
- There could be problems deciding how to rate different factors for families (e.g. cultural and economic differences);
- A checklist approach would mean that each factor could be evaluated without full understanding of the children's environment or what is at stake;
- Listing the factors might spark a more competitive or contentious discussion between parents, inviting them to aggressively promote their position on each factor; and
- Establishing a list would neither make court decisions more predictable nor reduce disputes.
Some men's and women's advocacy groups said that the question of the rights of custodial and non-custodial parents must be resolved before a meaningful discussion can be had about factors affecting the best interests of children. The women's groups taking this position said that the mother's role of nurturer and primary caregiver should be acknowledged. The men's groups taking this position said that both parents should have the right to a shared or equal parenting role (including equal time with their children and equal participation in decisionmaking).
Other respondents proposed alternatives to listing all the factors, including these:
- a general definition of the best interests of the child, which could evolve over time and is flexible and easily applied to individual situations;
- guidelines or principles in the Divorce Act that help ensure that children's needs and abilities are met; and
- a statement that it is in the children's best interests that decisions about children be made in an atmosphere of collaboration, respect and dialogue, rather than conflict.
To identify factors that define the best interests of the child that might be included in the federal legislation, respondents were first asked to identify the needs of children when their parents divorce. Their responses formed the basis of the discussion on factors that could be specified in the Divorce Act. A table summarizing these factors is found here.
Stability and Consistency
Although participants acknowledged that each family's situation is unique, they generally agreed that children need a safe, stable, healthy and loving environment during separation and divorce. Specific factors mentioned included the following:
- Parents must show respect for their children;
- Parents must not involve or blame their children for the dissolution of the marriage;
- The children's daily routine, standard of living and relations with the extended family must continue both during and after separation;
- Both parents must have "rules" in their homes (there was disagreement about whether these should be the same rules or whether each parent could have his or her own);
- Children must have a clear idea about the time they will spend with each parent;
- Parents should inform children of the parenting arrangements ahead of time;
- Parents should follow through as much as possible with arrangements they have made with the children; and
- Stability in the children's lives outside of the family-in the community, schools and day care-must be maintained.
Health and Safety
Participants strongly emphasized safety. Children must live in an environment that is calm and free from conflict. However, participants disagreed on what safety entails. Some people said that children's safety refers to their whole environment: physical, emotional, psychological and financial, as well as the assurance that basic needs, such as housing and medical care, will be met. Other people focused on the importance of keeping children out of any disagreements, conflict and, in some cases, violence between parents.
When children's safety is compromised, measures to protect children must be in place and enforced. There was disagreement, however, about the types of measures that are appropriate when abuse is alleged but has not yet been investigated.
Children Should Not Carry Any Burden
The children's integrity-both respecting their lives and views and ensuring that they do not feel the burden of responsibility for the separation or divorce-also came up in discussion. Respondents felt that children's burdens would be minimized if the following occurred:
- parents communicated openly and honestly with their children throughout the divorce process;
- children were heard and had the opportunity to express their own opinions (issues related to children's perspectives are discussed here);
- appropriate services and intervention were available for children to help them live with and adapt to the separation;
- parents ensured that their children do not take responsibility for their parents' well-being;
- parents acknowledged that children need time to grieve for the separation of their family;
- children were not made to be mediators or messengers, forced to report to and from the other parent;
- children were given permission to love both parents without guilt or fear of recrimination (therefore, it is important that parents refrain from commenting negatively about the other parent in front of the children);
- children did not have to choose between parents; and
- children did not have to worry about adult problems, such as money or child support.
Parents must allow their children to care for any new partners and their new extended family when it is safe to do so and while respecting the importance of the children's ongoing contact with siblings and existing extended family. Extended family members can provide the necessary support and continuity in children's lives; however, they must also be aware of children's need for ongoing communication and support, free from conflict. The Yukon Children's Act was held up as an example of how to address these issues in legislation. The Act has been amended to include grandparents among those who can apply for custody of and access to children. This change is especially important in the North because in First Nations communities, grandparents are actively involved in raising their grandchildren.
Protection from Conflict and the Court Process
Children should be protected as much as possible from ongoing participation in the legal system, and should not be forced to take on adult responsibilities. It is vital that parents not use children as leverage or "pawns" to gain control of the situation. Children should be also protected from witnessing any kind of conflict or violence.
Cultural and Developmental Needs
Children's ever-changing developmental needs are a factor, and it is important that children develop positive self-esteem and their own cultural identity. Respondents felt that children must have the opportunity to learn from both parents about their cultural backgrounds. Respondents also mentioned that the concept of the "best interests of the child" is foreign to many immigrant families, because their ideas about children's upbringing are often based on different cultural customs.
Northern and Aboriginal Communities
Several factors were raised that deal specifically with the needs of children in northern and Aboriginal communities:
- There is greater deference towards children in the North and they traditionally have more input into where they go after divorce or separation;
- Many children are not registered at birth and have trouble throughout their lives accessing resources;
- Traditionally, it is considered appropriate and better for children to reside with their mother; and
- A large part of the population moves often, either to or from the North, which can create problems for children when their parents separate or divorce. One parent may decide he or she no longer wants or is able to remain in the North, or he or she might be forced to leave to find work.
There were diverging views about parents' access to children. While some people said that parents must adhere strictly to the access arrangements, others felt that there should be flexibility to change the agreement when necessary.
Some people said that children need "equal access" to and maximum contact with both parents, unrelated to financial issues. These people said that in "normal" cases (in which abuse does not exist), children want to be with both parents. Furthermore, some respondents said that there should be a shared parenting arrangement unless there was clear evidence that this would not be in the best interests of the children.
Other suggestions made in relation to access included the following:
- Both parents should be committed to staying geographically near one another to enable children's access to and involvement with both parents;
- Maximum contact must be balanced with the need to provide a stable home for the children; and
- In joint custody arrangements, a certain amount of flexibility is required so both parents can be responsive to children's activities and needs.
For children's best interests to be met, the appropriate support services must be available. Improvements and changes were suggested regarding legal, educational and emotional support services, specifically that the various community and government services need to be better coordinated to ensure all services are accessible to children. The Child and Youth Network in Cape Breton was cited as an example of this coordination. Adequate access to services in all communities-urban, rural, northern and reserve-was also emphasized.
Respondents said that the family law system must be dedicated to the children's best interests. Such a system should do the following:
- emphasize a conciliatory approach over the current adversarial process;
- encourage parents to make decisions quickly, avoiding a lengthy process and minimizing disruption of children's routines;
- contain a "standard order" or "default position" to counteract parents' unwillingness to make timely custody and access decisions (however, such a temporary order would establish a status quo in the law, which may be unsafe for some children or parents);
- provide adequate resources, such as sufficient legal aid, parental assessments and children's needs assessments, to ensure informed and effective decisionmaking;
- be sensitive to cultural issues;
- acknowledge that the timing and deadlines associated with legal processes do not take into account the inaccessibility of legal aid and support services for many Aboriginal communities;
- provide children with a voice to express their views on time-sharing and parenting arrangements (for example, through their own lawyer, counsellor, social worker or elder);
- mandate a periodic review of the parenting arrangements to ensure that the best interests of the children are still being met; and
- facilitate the mediation and settlement of parental break-up outside the courts.
With regard to educational services, respondents suggested changes to the school curriculum that would support children, including the following:
- courses on separation and divorce issues; and
- proactive educational programs for children of separating parents so they can understand relationships and develop life skills.
People also suggested programs to educate parents and service providers on the impact of separation and divorce on children. These are discussed in more depth below (see "Awareness of and Improvements to Services").
With regard to emotional support, respondents made the following suggestions for services:
- additional information resources (in the appropriate language) that would support children;
- a mentoring program for children (either with children from intact families or, as youth participants suggested, with children of divorced parents);
- support groups for children who relocate to another community and lose their existing social circle;
- counselling and mediation for parents and children;
- community-based clinics and family conflict resolution services (such as the pilot project in Durham Region in Ontario);
- profiling of families so they can be referred to agencies such as the Children's Aid Society (when necessary) and other services (such as counselling and education) as needed to address the children's needs;
- mandatory counselling for children who have been exposed to high levels of conflict;
- efforts by parents to ensure that children feel secure in their homes, and do not fear being "taken away" by social service agencies;
- the "circle" approach, which is a way to ensure equal balance of power between service providers, families and elders when discussing and assessing children's best interests; and
- assurance that, for Aboriginal children, any psychological assessment or therapeutic mediation involve an elder to ensure cultural differences are acknowledged.
Participants in the workshops described how parental separation and divorce affect their lives. On the one hand, they identified their disapproval of parents who are unable or unwilling to resolve their differences. As one participant explained,
"I still love my parents but I have to understand that's how it is. It's hard to respect parents because of their behaviour."
On the other hand, participants seemed to accept that not all relationships are successful and that some do not continue. Many participants were able to identify positive aspects of divorce, such as increasing one's independence, learning from mistakes and becoming a stronger person. They expressed concern that parents did not always work hard enough on their relationships, both before and after the divorce. Many of the youths acknowledged that it is now harder to trust adults. Some participants were clearly burdened by their parents' divorce and had assumed or were given responsibilities beyond their years (e.g. involvement in financial decisions). One participant advised the other youths,
"You have to look after your mother, because your dad's not there anymore."
Young people are looking to parents and policy makers to create effective and responsive services that support children when parents no longer live together. They expect child support obligations to be fulfilled. They want to learn skills that will enable them to contribute to the decisionmaking process. They expect professionals to be available, youth-oriented and responsive to their needs. They worry about the future and their ability to be successful in relationships. They are searching for effective role models and want parents to take more responsibility for preparing them for adulthood.
More information on the results of the youth workshops can be found in Appendix A.
Related to the children themselves
Related to the children's relationships with others
Related to the parenting of the children in the past
Related to the future of the children
Additional factors to be considered
* Identifies factors highlighted in the consultation document and agreed with by some participants.
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