THE SURVEY OF CHILD SUPPORT AWARDS: INTERIM ANALYSIS OF PHASE 2 DATA

(October 1998 to March 2000)

CSR-2001-2E

PART 1: DIVORCE AND THE PROCESSING OF CHILD SUPPORT ORDERS (continued)

5.0 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.

5.1 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.

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 5.2 and 5.4 below).

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. It appears that 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 numbers. 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 free legal advice.

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. The lawyer referral line in Saskatchewan provides information and advice for a nominal fee on family law issues, including those related to child support. The Saskatchewan Law Society operates the lawyer referral line 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).

5.2 Child Support 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 Through Court Services Offices

In most sites, court services staff provide information on child support. Nine provincial or territorial jurisdictions have implemented this type of model (represented in this study by Halifax, Charlottetown, Fredericton, Toronto, Ottawa, London, Regina, Saskatoon, Whitehorse and Yellowknife). In this model, one to five staff members are dedicated to work out of 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 organize 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 will be expanded to non-unified family court sites in the rest of the province in 2000-01. The centres contain brochures, videos and other information and resource material on family law. Court staff assists clients in the centre by providing information, particularly on court procedure. Legal Aid advice lawyers are available to provide summary legal advice. In the unified family courts, social workers employed by the court-connected mediation services provide 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.

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, which 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 being 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.

Specialized Child Support Units

Winnipeg, Edmonton, Calgary and 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. An unrepresented party must have their Child Support Information and Data Sheets (financial disclosure and child support calculations) reviewed by the centre before they are permitted to file a contested child support application. 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 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.

5.3 Advice

There is an important 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 the majority of 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. 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.

5.4 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, (7) Toronto and Whitehorse, and throughout Manitoba, Saskatchewan, Alberta and British Columbia. Programs are under development in several other sites. New Brunswick will be implementing a province-wide program starting in the fall of 2000.

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 rural areas. 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:

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 who have a professional background. 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 focusses on parenting issues.

5.5 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, even in 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 much 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.

5.6 Preparation of the Order

Once the judge makes a decision regarding the divorce and child support (called a Divorce Judgment in Figure 4.1), 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 the divorce judgment 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 judgment takes legal effect 31 days after the judge makes the order (unless an appeal is filed).

The language of the orders is also 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, the provincial Family Maintenance Act contains these forms. However, in the Family Law Division in Saskatchewan there is not a specific form, but there are practice directives 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.