Final Federal-Provincial-Territorial Report on Custody and Access and Child Support

Appendix E: Summary of Family Law Committee Recommendations

  1. It is recommended that continued dialogue, research and development be undertaken to address diversity and Aboriginal issues with respect to family law.

  2. It is recommended that the principles and objectives of family law reform be as follows:

    Principles

    • Ensure that the needs and well-being of children come first.

    • Promote an approach that recognizes that no one way of parenting after separation and divorce will be ideal for all children, and that takes into account how children and youth face separation and divorce at different stages of development.

    • Support measures that protect children from violence, conflict, abuse and economic hardship.

    • Recognize that children and youth benefit from the opportunity to develop and maintain meaningful relationships with both parents, when it is safe and positive to do so.

    • Recognize that children and youth benefit from the opportunity to develop and maintain meaningful relationships with their grandparents and other extended-family members, when it is safe and positive to do so.

    • Recognize the positive contributions of culture and religion in children's lives.

    • Promote non-adversarial dispute-resolution mechanisms and retain court hearings as mechanisms of last resort.

    • Provide legislative clarity to the legal responsibilities of caring for children.

    • Recognize the overlapping jurisdictions in custody and access matters in Canada, and make efforts to provide co-ordinated and complementary legislation and services.

    Objectives

    • To focus parents, professionals and services to better serve children's needs and interests.

    • To reduce negative impact of conflict on children and to promote healthy models of dispute resolution.

    • To support positive parental, extended family, and cultural interactions with the child.

    • To provide clearer, more predictable and understood responses to family justice issues.



  3. It is recommended that there be a continued national emphasis on research and evaluation to monitor trends and the impact of reforms in law and services.

  4. It is recommended that custody legislation contain an explanatory non-exhaustive list of criteria for parents, judges and others involved in the decision-making process to consider when determining the custody arrangement that is in the best interests of the child or children.  The factors to be listed include:
    • factors related to the children themselves, such as the children's health and special needs;
    • the children's relationships with others;
    • factors related to parenting of the children in the past; and
    • factors related to the future of the children, including the potential for conflict or violence affecting the children.
  5. It is recommended that any list of best interests criteria be child-centred to ensure that the child's best interests remain the foremost consideration in custody and access decision making.

  6. It is recommended that legislation not establish any presumptive model of parenting after separation, nor contain any language that suggests a presumptive model of parenting.  The fundamental and primary principle of determining parenting arrangements must continue to be the best interests of the child.

  7. It is recommended that, where jurisdictions determine that their legislative terminology should be changed or clarified, any amendments to legislation should be child-centred, focus on parents' responsibilities to understand and meet their children's needs, and promote the positive and safe involvement of both parents.  It is agreed that Options 2, 3 and 4 could meet these criteria and that Option 5 does not.

  8. It is recommended that, with a view to ensuring that no court orders are made which may result in prejudice to the safety of children and place them at risk,
    • there be no legislative presumptions regarding the degree of contact a child has with his or her parents, and
    • legislative criteria defining best interests include, as factors to be considered:
      • any history of family violence and the potential for family violence in the future, and
      • facilitating contact with both parents when it is safe and positive to do so.

  9. It is recommended that governments work to strengthen supports to families exposed to family violence, including crisis counselling programs and counselling programs for children exposed to family violence. 

  10. It is recommended that high-conflict cases be addressed through a mixture of services and procedural supports to minimize the negative impact of conflict on children and families.

  11. It is recommended that each jurisdiction review its legislation, procedures and services to ensure that:
    • the parents and the courts have access to information on the child's perspectives; and
    • the information is obtained from the child and is communicated to the parents and the court where necessary in a way that is appropriate to the child's best interests, age and maturity, and in a way that the child does not feel responsible for the custody decision.

  12. It is recommended that, recognizing the breadth and complexity of the issues involved in child custody and access enforcement and parental child abduction cases, further detailed work be undertaken.

  13. It is recommended that the Divorce Act and provincial and territorial legislation provide that the courts of the province or territory of the child's habitual residence have jurisdiction to determine custody and access, subject to exceptions based on consent or safety considerations, and taking into consideration, as applicable:
    • the jurisdictional provisions in some provincial custody and access legislation,
    • the provisions of child custody enforcement legislation, and
    • The Hague Convention on the Civil Aspects of International Child Abduction.

  14. It is recommended that information on existing and new laws and services be disseminated to the public as widely as resources permit, and through a variety of communication modes to be accessible to all families with children. 

  15. It is recommended that governments support parent education-mandatory or voluntary-which is broadly accessible and meets linguistic, cultural, geographic, and general parenting, legal and process information needs.

  16. It is recommended that support be given to professionals working with families during and after separation and divorce, such as lawyers, social workers, and psychologists, to engage in continuing education and training in child custody and support law, family violence issues, the dynamics of family separation and divorce and the effects on children.  Professional organizations should be encouraged and supported to facilitate professional development in this area, and to consider certification approaches incorporating professional development in this area.

  17. It is recommended that jurisdictions work with law societies and the bar associations:
    • to explore options for legal professional development and training in appropriate ways to interact with children of separated parents in the litigation process; and
    • to review practice codes with a view to ensuring that they set out counsel's role and obligations in a way that adequately safeguards children's best interests, and to ensuring that counsel have an obligation to explore appropriate alternative dispute resolution options with their family law clients.

  18. It is recommended that the Inventory of Government-Based Services That Support the Making and Enforcement of Custody and Access Decisions should be maintained and updated periodically.

  19. It is recommended that:
    • mediation not be made mandatory, and
    • mediation be available for informed participants of relatively equal bargaining power where participation of both parties is voluntary and where appropriate screening exists to ensure that family violence cases are identified and generally screened out.

  20. It is recommended that governments and the professions work together to support the development of a broad spectrum of dispute resolution services, including mediation, arbitration and collaborative law, and other supports to parents to help identify and narrow the issues in dispute, such as custody and access assessments and parent education.

  21. It is recommended that problems of access denial and failure to exercise access be monitored through research to identify best practices and the most effective ways of dealing with these problems, and that further research be undertaken to develop and assess innovative remedial approaches.

  22. It is recommended that governments continue to work at improving components of the legal system that are critical to families' access to the legal system to resolve family breakdown issues, such as family legal aid.

  23. It is recommended that the federal government work with jurisdictions to establish unified family courts, where there is a jurisdictional request. 

  24. It is recommended that persons appointed to, and serving in, specialized family courts have expertise in family law issues.

  25. It is recommended that the provinces and the territories review their legislation respecting establishment and recognition of parental status, and entitlement to custody and access on the birth of a child, with a view to identifying any issues that require a legislative or service response, and making recommendations in the future.

  26. It is recommended that jurisdictions encourage the development of collaborative family law practice as a further option for parties to consider as a method of dispute resolution. 

  27. It is recommended that family law legislation require lawyers to advise clients of the full range of available dispute resolution options.

  28. It is recommended that jurisdictions work to ensure that children are treated similarly and provided similar protection in Canada by providing relative consistency in laws affecting custody, access and child support.

  29. It is recommended that courts make appropriate use of judicial and non-judicial settlement approaches to avoid the hardening of positions and to promote early settlement and narrowing of issues in dispute.

  30. It is recommended that case management systems provide for expedited access to judicial decision making where it is in the best interests of the child to have the matter dealt with on an urgent basis.

  31. It is recommended that orders be worded clearly and consistently to ensure that the parties understand their obligations and that the orders can be enforced.

  32. It is recommended that procedures for variation of orders provide that, where there is consent, custody, access and child support orders can be varied expeditiously and without a court hearing.

  33. It is recommended that no change be made to the 40 percent threshold rule.  However, further guidance should be provided in the child support guidelines on how to determine or analyze the elements that contribute to the determination that the 40 percent rule has been met.

  34. It is recommended that the current factors used to determine the amount of support in shared custody situations be replaced by the use of a presumptive formula.  The formula amount would be the difference between the table values for each parent given the total number of children in the shared custody arrangement, unless that amount is deemed inappropriate based on, for example, how the parents share the child's expenses.

  35. It is recommended that the term extraordinary be defined in the Guidelines.

  36. It is recommended that no change be made to the provisions regarding the eligibility for support of a child over the age of majority.

  37. It is recommended that the Guidelines be amended to require recipients of support for children over the age of majority to disclose information respecting the child's ongoing eligibility for support.

  38. It is recommended that no changes to deal specifically with high access costs be made to the Guidelines.  These situations should be dealt with on a case by case basis and any accommodation appropriate to a particular case should be addressed as part of a custody and access order.

  39. It is recommended that no changes be made to the provisions in the child support guidelines respecting the obligations of those who stand in the place of a parent.

  40. It is recommended that the child support tables be updated every five years, or more often, if there are changes to federal, provincial or territorial taxes that would have a major impact on the table amounts.