The Child-centred Family Justice Strategy:
Survey on the Practice of Family Law in Canada 2004-2006

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4.0 Summary and Conclusions

In this chapter, the overall findings from the 2006 Survey on the Practice of Family Law in Canada are presented, and the findings from the workshops on access enforcement and the Spousal Support Advisory Guidelines are summarized. In addition, differences between the 2006 and 2004 surveys are highlighted. The concluding section discusses positive and negative aspects of the family law system in Canada, as identified by the lawyers, judges, and justice system professionals who participated in the workshops and completed the surveys.

4.1 Summary of 2006 Survey and Workshop Findings

4.1.1 Demographics of Survey Respondents

• The response rate in 2006 was 42 percent; in 2004, the response rate was 34 percent.
• In 2006, the largest proportion of respondents were from Alberta, Ontario and British Columbia. In 2004, the largest proportion of respondents were from Ontario, Alberta, and Nova Scotia.
• Of the 164 surveys returned, 90 percent were completed by lawyers, 7 percent were completed by judges, and 1 percent was completed by other professionals.
• Lawyers had been practising family law an average of 16 years, and on average 82 percent of their practice involved family law cases.
• The largest proportion of respondents were from Alberta, Ontario and British Columbia, and their client base was mostly large urban (>100,000 population) (65 percent) and small urban (10,000 — 100,000 population) (20 percent).
• Over one-third of lawyers said they conduct mediation sessions.
• A substantial proportion of respondents had attended continuing education and training programs in the following areas: spousal support, custody/access, child support guidelines, and property division.

4.1.2 Case Characteristics

• Survey respondents handled an average of 78 family law cases in the past year; an average of 75 percent of those involved children.
• Over one-quarter of survey respondents' family law cases with children involved were variations of previous orders/agreements.
• Survey respondents reported that cases were resolved most frequently in the following manners: settled by negotiation before trial (43 percent) and settlement conference (21 percent), with only a minority (13 percent) being decided by a judge.
• Issues that survey respondents identified as most likely to require a trial and judicial decision to be resolved in divorce cases were: spousal support (69 percent); custody (52 percent); and property division (35 percent).
• Issues that survey respondents identified as most likely to require a trial and judicial decision to be resolved in variation cases were parental relocation (65 percent) and spousal support (50 percent).

4.1.3 Services

• Survey respondents said they keep informed about family justice services through the following mechanisms: colleagues; provincial/territorial continuing legal education courses; national or international conferences; local professional seminars; professional associations and meetings; and professional publications.
• Lawyers who responded to the survey reported that most of their clients are either only somewhat informed or not at all informed about family justice services and issues at the outset of their case. Clients are most likely to be informed about individual counselling, child support issues, and marriage or relationship counseling. Clients are least likely to be informed about child assessment services, parenting plans, and supervised exchange.
• Survey respondents said that their clients were most likely to get their information about family justice services and issues from friends and family members, the Internet, and media stories or advertising.
• According to the survey, lawyers were most likely to inform their clients about, or refer clients to, the following family justice services: maintenance enforcement programs; individual counseling; mediation services; parenting education programs; and marriage or relationship counselling.
• Over two-thirds of the lawyers reported that their clients are somewhat willing to use family justice services. For clients who are not willing to access family justice services, respondents said the biggest obstacles were: lack of trust in the service; time delay; cost; and location of service.
• Survey respondents said that their cases are somewhat more likely (46 percent) or much more likely (17 percent) to be settled out of court because of the family justice services that are available.
• Survey respondents reported that the following services would be helpful to their clients, but are not available in their community: parent information/education services or programs; mediation/affordable mediation; supervised access/affordable supervised access; and assessments/assessors/assessment centers.
• Almost half of the survey respondents (48 percent) indicated that there is a Unified Family Court in their province/territory. In general, less than half of the respondents agreed or strongly agreed that Unified Family Courts have positive consequences, while about one-quarter disagreed or strongly disagreed.
• Almost three-quarters of the survey respondents (72 percent) who do not have Unified Family Courts in their jurisdiction said they would like to see them established.

4.1.4 Best Interest Criteria

• According to the survey respondents, the processes most likely to be consistent with the best interests of the child are arrangements negotiated by lawyers (on their own or after judicial conference), and arrangements made as a result of mediation.
• Almost three-quarters of survey respondents (74 percent) said that the provincial/territorial legislation in their jurisdiction included specific criteria for determining the best interests of the child. The vast majority of those respondents (91 percent) reported that they also use those criteria in cases under the Divorce Act.
• A somewhat surprising 35 percent of survey respondents said that even when parents are aware of the negative effects of separation/divorce on their children, this awareness does not affect their behaviour. The most common reasons given for this were: even when parents are aware, they have difficulties changing their behaviour; and the emotional and/or financial repercussions of the separation interfere, and parents can't get past their anger.
• Three quarters of individuals responding to the survey (75 percent) thought that parenting plans are a good mechanism for ensuring that the best interests of the child are met in most cases, 13 percent thought they were a good mechanism in high conflict cases, and 5 percent thought they were a good mechanism in all cases. Only 7 percent did not think parenting plans are a good mechanism for ensuring that the best interests of the child are met.
• Survey respondents said that parenting plans were used in just under one-third of their cases (31 percent) involving children. Over one-third of the lawyers (35 percent) said they have a form they use as a guide for parenting plans, and 84 percent who said they did not have a form said they would find a form useful.
• The vast majority of lawyers responding to the survey reported that they found parenting plans were somewhat or very helpful to their clients. A few respondents said parenting plans are still very new and are unfamiliar to clients, and parenting plans are not very helpful because each situation has its own unique twists and the plans tend to be too general.

4.1.5 Child Representation

• Survey respondents thought that the best mechanisms to enable children to voice their views were legal representation for the child (71 percent) and assessment reports (70 percent).
• Survey respondents thought the following factors were important when deciding what weight should be given to the child's views: age of child; child's reason for views; ability of child to understand the situation; indication of parental coaching/manipulation; the child's emotional state; and ability of child to communicate.
• The older the child, the more weight respondents thought should be given to their preferences regarding custody decisions. While 62 percent of survey respondents thought no weight should be given to children under the age of 6 years, 92 percent thought the preferences of children 14 or over should be weighed heavily.

4.1.6 Custody and Access

• Almost two-thirds of survey respondents said that they often or almost always use terminology other than "custody" and "access" in their agreements. Almost half reported that they often or almost always use alternate terminology in their orders.
• Three-quarters of survey respondents thought that legislative changes to the Divorce Act to replace the terms "custody" and "access" with "parenting order" would promote a less adversarial process.
• The majority of survey respondents said that parents shared decision making often or almost always in the areas of education and health.
• When parents do not comply with their custody/access orders, survey respondents reported that the most frequent problem is that the child refuses the visit with the access parent.
• Almost all of the workshop participants reported that when access is denied, it is a reflection of underlying conflict between the parents. The vast majority said it is often a manipulative tactic on the part of the custodial parent, and about half said it is often due to the presence of a new partner.
• About three-quarters of the workshop participants said that they had used the police to enforce access orders, but they also reported that they had experienced difficulties in doing so.
• None of the workshop participants thought that provincial access enforcement legislation was adequate.
• In terms of other remedies for dealing with access enforcement, about 90 percent of workshop participants said that family therapy was the most effective solution, but the resources aren't adequate.
• All workshop participants thought that parenting education was helpful in addressing access enforcement problems, although most said current services were not adequate.
• When asked what judges do on applications dealing with denial of access, about two-thirds said that they regularly provide for "make-up" access, and about one-third said they regularly made police orders.
• Three-quarters of the workshop participants said that non-exercise of access was a significant problem. About one-half of the group thought that parenting education was an effective mechanism for dealing with the problem.
• Lawyers who responded to the survey reported that very few of their cases involved supervised access (8 percent) or supervised exchange (6 percent). Supervised access was most likely to be recommended in cases of child abuse allegations, substance abuse, and mental health concerns. Supervised exchange was most likely to be recommended in cases of high conflict and spousal violence.
• Survey respondents reported that parental relocation was an issue in 13 percent of their cases with children involved. In cases where parental relocation was an issue, the most common reasons were to be with a new partner, employment opportunity, and to be closer to family/friends.
• According to the survey, the most common circumstances in cases of parental relocation were when the custodial parent wished to move within the province/territory and when the custodial parent wished to move to a different province/territory.

4.1.7 Child Support Guidelines

• Survey respondents overwhelmingly agreed that the Guidelines are meeting their objectives. Almost all respondents agreed or strongly agreed that the Child Support Guidelines have resulted in a better system of determining child support than the pre-1997 system (90 percent). Similarly, the vast majority of respondents agreed or strongly agreed that cases are settled more quickly since the implementation of the Guidelines (89 percent), most cases are resolved simply by relying on the tables to establish amounts of support (85 percent), and, in cases involving litigation, the issues to be resolved are more defined and focused than prior to implementation of the Guidelines (86 percent).
• Survey respondents reported that very few of their child support cases (6 percent) involved undue hardship applications.
• Almost one-half of survey respondents said that income disclosure is often or almost always a problem. The most frequent reasons for this were income from self-employment, unwillingness to disclose or provide supporting documentation, and lack of complete disclosure.
• Over one-third of survey respondents said that second families are often an issue in child support cases, and over one-half said they are an issue occasionally. The most common reasons were: child support payors with second families often refuse to acknowledge first family obligations; access problems are more common when there are second families; and children's relationship with new partner and siblings.
• Survey respondents identified the most problematic areas of the Guidelines as: section 9—shared custody and the 40 percent rule; section 7—special or extraordinary expenses; and imputing income.

4.1.8 Spousal Support

• Survey respondents reported that spousal support was an issue in almost one-half of their cases.
• When asked how often they use the Spousal Support Advisory Guidelines (SSAG), over half of the respondents said that they use them often or almost always (55 percent). Only 10 percent of respondents said that they never use the SSAG.
• Almost all of the workshop participants said that they had used the SSAG, and 80 percent of the group said that the SSAG helped in resolution of the case.
• Fewer than half of the survey respondents agreed that the SSAG have made the handling of spousal support applications: more consistent (42 percent); fairer (39 percent); less conflictual (37 percent); and generally easier to resolve (44 percent).
• Less than one-third of the workshop participants thought that the SSAG resulted in more consistency and predictability for spousal support outcomes.
• In terms of regional differences, the data allowed for comparison of four provinces: Alberta, Ontario, British Columbia, and Nova Scotia. Each province reported similar usage of the SSAG; however, respondents from British Columbia were most likely to be positive about the objectives of the SSAG, while respondents from Alberta were least positive.
• Survey respondents reported making reference to the SSAG often in a variety of situations. Reference to the SSAG was most likely to be made in discussions with clients (84 percent) and in cases settled by negotiation (77 percent).
• Almost all workshop participants had used the SSAG in discussions about spousal support with the clients and in negotiations with other lawyers. About two-thirds of the participants said they used them in settlement conferences or in other case conferences, and about one-third said they used them in mediation and collaborative family law.
• Case resolutions that are within the SSAG range were most likely to be reported in cases settled by negotiation (59 percent) and in discussions with clients (59 percent), and have less of an effect on trials and judicial resolution.
• The majority of workshop participants said that the outcomes for the without child support formula ranges were higher than the amounts that they were expecting before the SSAG were introduced, and about one-quarter thought that the with child support formula resulted in higher amounts than before. None reported that the SSAG were lower than previously awarded amounts.
• About one-half of the participants said that the duration limits for the without child support formula were appropriate, and agreed that 20 years was the right threshold for indefinite support.
• The circumstances that survey respondents reported occurred often in cases where spousal support is an issue are: payor's income is considerably higher than claimant spouse's income; claimant spouse is a stay-at-home parent; and claimant spouse was a stay-at-home parent to children now grown and is not in the labour force.
• In cases where both child support and spousal support are issues, almost all survey respondents stated that child support is dealt with first.

4.1.9 Family Violence

• Almost three-quarters of lawyers who responded to the survey indicated that they always make enquires to attempt to identify cases of family violence. However, almost all respondents said that they do not use a screening tool to identify cases of family violence.
• In cases involving spousal violence, respondents were asked how the court addressed this issue. The most likely response was to deny custody to the abusive parent. The least likely response was to give the child legal representation. Access denial occurred rarely.
• In cases involving child abuse, respondents were asked how the court addressed this issue. The most likely responses were to deny custody to the abusive parent, and to order access supervision. The least likely response was to give the child legal representation.
• Almost two-thirds of survey respondents said that training sessions on spousal violence issues are available to family justice professionals in their jurisdiction.
• Almost two-thirds of survey respondents said that training sessions on child abuse issues are available to family justice professionals in their jurisdiction.
• Two-thirds of the respondents thought that the training sessions on spousal violence issues and child abuse issues were adequate.

4.2 Comparison of 2006 and 2004 Survey Results

As expected, most of the survey findings in 2006 paralleled those in 2004. Notable differences are summarized in this section. It should be borne in mind, however, that some variance may be due to the demographic differences in the two samples, e.g., in 2006 there were more respondents from Alberta and British Columbia, while in 2004 there were more respondents from Ontario. The response rate in 2006 (42 percent) was greater than the response rate in 2004 (34 percent), thus providing a more representative sample of the conference attendees in 2006.

• Survey respondents were asked about any training that they have taken on family law issues in the past five years. While 2006 results were similar to those in 2004, 2006 respondents reported taking more training in spousal support, which probably reflects the introduction of the SSAG.
• The average number of family law cases handled by respondents in the past year was considerably lower in 2006 (78) than in 2004 (93).
• The average proportion of lawyers' family law cases funded by legal aid in the past year was down slightly in 2006 (18 percent) compared to 2004 (25 percent).
• Survey respondents were asked what proportion of their cases in the past year were resolved in various ways. For the most part, the results were similar to those obtained in 2004; however, the proportion of cases settled by parents increased from 13 percent in 2004 to 17 percent in 2006.
• Respondents were asked which issues in divorce cases are most likely to require a trial and judicial decision to be resolved. Spousal support, property division and child support were less likely to be issues in 2006 than in 2004, while spousal support arrears was more likely to be an issue.
• Issues in variation cases most likely to require a trial and judicial decision to be resolved also differed between the two surveys. In 2006, the proportion of respondents indicating spousal support and child support arrears showed the largest decrease, while the proportion indicating custody issues increased the most.
• Survey respondents were asked how well informed their clients are at the outset of their case. The areas in which respondents indicated that a greater proportion of their clients were informed about in 2006 than in 2004 included collaborative family law and mediation services. The areas in which respondents rated their clients as less informed in 2006 included spousal support issues and support variation or recalculation services.
• Several questions were asked regarding Unified Family Courts. The proportion of 2006 respondents indicating the availability of a Unified Family Court in their jurisdiction (48 percent) was lower than 2004 respondents (57 percent), undoubtedly reflecting the geographical differences in the response group. Overall, the proportion of 2006 respondents who agreed or strongly agreed that Unified Family Courts have positive consequences was lower than in 2004. The proportion of respondents who indicated that they would like to see Unified Family Courts implemented in their jurisdiction was considerably higher in 2006 (72 percent) than in 2004 (59 percent). These differences, however, may be due in part to the higher proportion of respondents from Alberta in the 2006 survey.
• Respondents were asked if parenting arrangements made through specific processes are consistent with the best interests of the child. Main differences between the two surveys were that respondents to the 2006 survey were more likely to state that arrangements made by parents themselves and arrangements made by a judge are consistent with the best interests of the child. Also, in 2006, respondents were less likely to state that arrangements resulting from collaborative family law are consistent with the best interests of the child.
• When asked if the provincial/territorial legislation in their jurisdiction included specific criteria for determining the best interests of the child, the proportion responding affirmatively in 2006 (74 percent) was higher than in 2004 (63 percent). This finding may be due to demographic differences in the two samples.
• Survey respondents were asked if parents' awareness of the negative effects of separation/divorce on their children affects their behaviour. A greater proportion of the 2006 respondents (64 percent) indicated that this awareness does affect parents' behaviour than the 2004 respondents (56 percent).
• While, in general, respondents to both the 2006 and 2004 surveys found parenting plans helpful, a smaller proportion of lawyers stated in 2006 that parenting plans were very helpful (38 percent vs. 45 percent in 2004), and a larger proportion indicated that they were not helpful (14 percent vs. 9 percent in 2004).
• Respondents were asked how often they use terminology other than "custody" and "access" in their agreements. While the overall pattern was similar for the two surveys and showed support for alternative terminology, fewer respondents in 2006 stated that they often use other terminology (36 percent in 2006 vs. 50 percent in 2004), and a greater proportion of respondents stated that they rarely use other terminology (13 percent in 2006 vs. 10 percent in 2004).
• Different results were also obtained when respondents were asked if they use terminology other than "custody" and "access" in their orders. A greater proportion of respondents in 2006 said that they often or almost always use alternative terminology (48 percent) in court orders than in respondents to the 2004 survey (35 percent).
• When respondents were asked if training sessions on spousal violence issues are available to family justice professionals in their jurisdiction, a considerably larger proportion of 2006 respondents indicated that training sessions were available (62 percent) than 2004 respondents (42 percent). Respondents to the 2006 survey were also more likely to indicate that the available training was adequate (64 percent) than 2004 respondents (53 percent).
• Similarly, when respondents were asked if training sessions on child abuse issues are available to family justice professionals in their jurisdiction, a substantially greater proportion of the 2006 sample said yes (60 percent) than the 2004 sample (36 percent).

4.3 Conclusions

This project was undertaken in accordance with the Results-based Management and Accountability Framework for the Child-centred Family Justice Strategy of the Department of Justice Canada. The purpose of this project was threefold: (1) to obtain current information on the characteristics of cases handled by family law lawyers in Canada; (2) to obtain feedback from both lawyers and judges concerning family law issues based on their knowledge and experience; and (3) to examine trends in family law cases and practice over a two-year period from 2004 to 2006.

Overall, data from the survey and the workshops indicate that there are many positive aspects of the current family law system in Canada. As was the case in 2004, the 2006 survey found that one of the most positive components identified by survey respondents is the Federal Child Support Guidelines. It is clear from the responses received that the Guidelines are meeting their stated objectives and that they have resulted in a much fairer determination of child support than the former regime. The vast majority of respondents agreed or strongly agreed that the Child Support Guidelines have resulted in a better system of determining child support than the pre-1997 system.

Participants in both surveys indicated strong support for case resolution mechanisms other than the traditional judicial resolution of cases. The proportion of cases that required resolution after a hearing or trial was slighter lower in 2006 than in 2004. Mechanisms that respondents indicated as most effective were negotiation between lawyers before trial and settlement conferences.

While project participants were very supportive of out-of-court mechanisms for settling family law disputes in both surveys, they also reported that their clients are generally not well informed about family justice services and issues at the outset of their case, which suggests the need for enhanced public legal education initiatives. In fact, when respondents were asked if there are services that are not available in their community that would be helpful to them and their clients, the most popular response was parent information/education services or programs.

Survey participants continued to show strong support for using terminology other than "custody" and "access" in 2006. Almost two-thirds of respondents stated that they often or almost always use terminology other than "custody" and "access" in their agreements, and almost half stated that they often or almost always use alternate terminology in their orders. Three-quarters of survey respondents agreed that replacing the terms "custody" and "access" with "parenting order" terminology would promote a less adversarial process.

Workshop participants agreed that access enforcement is a problem. None of the participants thought that provincial access enforcement legislation was adequate. In terms of other remedies for dealing with access enforcement, almost all workshop participants said that family therapy and parenting education were the most effective solutions, but that the current resources aren't adequate.

When asked about the new Spousal Support Advisory Guidelines (SSAG), opinions were mixed. The majority of survey respondents and workshop participants stated that they use the SSAG, particularly in discussions with clients and in cases settled by negotiation or case conference. While the vast majority of workshop participants thought that the SSAG helped in the resolution of cases, survey participants were not as positive, with one-third to one-half agreeing that the SSAG made the handling of spousal support applications more consistent, fairer, less conflictual, and generally easier to resolve. The SSAG are still relatively new however, and some respondents stated that it's too early to assess the success of the SSAG.

Respondents' opinions on Unified Family Courts also continued to be somewhat mixed in the 2006 survey. Over one-third to one-half of the respondents agreed that Unified Family Courts have positive consequences, while about one-quarter disagreed. Regardless, almost three-quarters of the survey respondents who do not have Unified Family Courts in their jurisdiction said they would like to see them established. Concerns regarding Unified Family Courts were lack of funding and appropriate services.

A problematic area that was identified by project participants in 2004 was family violence. A positive development in the 2006 survey was that a considerably larger proportion of respondents stated that training sessions on both spousal violence issues and child abuse issues are available to family justice professionals in their jurisdiction. Further, larger proportions of respondents reported that the training in both these areas was adequate compared to the 2004 survey.

Even though 2006 survey respondents continued to be very positive about the Child Support Guidelines, they also reiterated the same problematic areas identified by survey respondents in 2004. Almost one-half of survey respondents said that income disclosure is often or almost always a problem, and over one-third stated that second families are an issue often. Survey respondents identified the most problematic areas of the Guidelines as: section 9—shared custody and the 40 percent rule; section 7—special or extraordinary expenses; and imputing income.

In conclusion, this project has provided information on the characteristics of cases handled by family law lawyers in Canada, as well as legal professionals' opinions on the current family law system. It has also allowed an examination of trends in family law cases and practice from 2004 to 2006, and has identified areas of change. This project has also identified aspects of the family law system that are working well, and has highlighted areas where improvement is desired. This information will be useful to the Department of Justice as it further develops its Child-centred Family Law Strategy, and interesting for policy makers and others who want to better understand the functioning of Canada's family law justice system.

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