GOVERNMENT OF CANADA STRATEGY FOR REFORM

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INTRODUCTION

Separation and divorce are stressful transitions that can have a profound effect on the health and well-being of children and their families. Many Canadians are concerned about the approach and adequacy of the current family law system and worried that, as a society, we are not adequately meeting the needs of children in these difficult circumstances. There is clearly a need to improve the framework within which child custody and access determinations are made.

To that end, the Special Joint Committee on Child Custody and Access undertook the difficult task of reviewing these issues, which affect the lives of a large number of Canadian families. The Committee held 55 meetings and heard from over 520 witnesses across the country, including individual parents and children, women's groups, fathers' organizations, lawyers, judges, social workers, psychologists and physicians. The hearings highlighted the difficult, emotional and contentious nature of custody and access issues and confirmed that very different, often conflicting, views continue to be held both about the problems and about the reforms that are required.

The Special Joint Committee Report

The results of the Committee's work were summed up in its Report, For the Sake of the Children, released in December 1998. The Report includes recommendations on a number of critical and complex issues relating to determining custody and access, such as:

• the rights and best interests of the child;
• the terminology used in legislation;
• parent education and mediation programs;
• shared parenting and parenting plans;
• the role of immediate and extended family members;
• child support guidelines;
• parenting orders;
• unified family courts;
• enforcement of access;
• parental child abduction;
• high-conflict families; and
• false allegations of abuse.

The Report represents an important contribution to the ongoing discussion in this area, both for its broad survey of these complex and controversial issues and for its many specific recommendations.

For the Sake of the Children underscores the difficult, emotional and often painful issues that face separating and divorcing parents, and recommends possible legislative reforms. The Committee also recognizes that many of the difficulties people face are not in fact the result of inadequate laws, and cannot be solved simply by changing the law. Legislative provisions alone cannot ensure that parents will be cooperative and reasonable; education and social services play an essential role as well. Some parents and children also require support to help them cope with the intense emotions associated with family breakdown and to make decisions that will minimize the problems.

Moreover, even where changes to the law are called for, family law in Canada, as the Committee notes, is an area of shared constitutional jurisdiction. Both the Government of Canada and the provinces and territories have authority to legislate respecting child custody and access, and effective initiatives will require federal-provincial-territorial coordination.

There are no simple solutions to these problems. Nonetheless, the concerns raised by the Committee present an important challenge that needs to be met.

The Government of Canada's Response: An Overview

The Government of Canada is committed to responding to the issues identified by the Committee Report. The Special Joint Committee Report's key themes, concerns and recommendations provide a foundation for developing a strategy for reforming the policy and legislative framework that deals with the impact of divorce on Canadian children.

This Strategy for Reform is rooted in a number of framework principles.

• Principle 1: The child's perspective

  A key theme of the Government of Canada's response is the desire to promote child-centered reforms that focus on minimizing the negative impacts of divorce on children. The Special Joint Committee is to be strongly commended for bringing the perspective of children to the forefront.

• Principle 2: Governments must work together

  The Government of Canada fully endorses the Committee's emphasis on promoting coordinated multi-jurisdictional efforts while respecting the constitutional division of powers and responsibilities. While For the Sake of the Children makes recommendations that are directed to all levels of government as well as to professionals in relevant fields, this response focuses on what can be accomplished within the mandate and priorities of the Government of Canada. At the same time, we remain committed to working closely with the provinces and territories to pursue the type of coordinated multi-jurisdictional efforts that the Committee recommends.

  Since 1984, the Federal-Provincial-Territorial (FPT) Family Law Committee has provided a forum to assist in the development of coordinated, multi-level family law policies and initiatives. Recently, the FPT Task Force on Implementation of the Child Support Reform was created to implement a comprehensive reform package including Federal Child Support Guidelines. By working closely with the provinces and territories through the FPT committees, the Government of Canada was able to develop a child support initiative that included not just legislative amendments but also coordinated projects that provide public legal information, parent education, mediation and improved enforcement measures throughout the country.

• Principle 3: A holistic approach

  Similarly, the Government of Canada is committed to a holistic approach to family law reforms. We believe it is critical to explore a broad range of measures to support families going through separation and divorce, because statutory amendments alone cannot address many of the problems that are, in reality, only partly legal in nature. The Government of Canada fully endorses the Committee's key objective to reduce parental conflict. However, conflict-free, cooperative parenting is not something that can be effectively forced or enforced by Divorce Act amendments alone. Improving educational and social service activities to foster healthier interpersonal relationships is an equally important component, and the Government is committed to encouraging these efforts wherever possible.

• Principle 4: One size does not fit all

  The strategy outlined in this response is based on the principle that while the laws governing divorce and custody and access need to apply uniformly to all parties, the unique characteristics of families and family members mean that couples' separating and divorcing experiences will be very different. Conflict levels of separating parents vary widely, as do individual children's needs. As well, children undergo developmental changes over time, and adjustments may be needed to allow for changing relationships and circumstances. For these reasons, a fundamental aspect of the Government of Canada's reform strategy is to support improvements that will allow for flexibility to meet the best interests of children. It is essential to recognize that no one model of post-separation parenting will be ideal for all children.

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