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Overview and Assessment of
Approaches to Access Enforcement
2001-FCY-8E
CANADIAN LAWS AND PROGRAMS (cont'd)
Preventive and Alternative Measures
Evaluation
Courts generally attempt to respond to enforcement problems that arise after an order is made, but at that stage it may be too late to successfully deal with the problems underlying the denial of access. Access enforcement programs that identify the cases that are likely to involve ongoing enforcement problems before the initial access order is made and that include preventive measures to avoid problems are likely to be effective. The vast majority of custody and access cases are settled on consent by parents who are able to work out problems as they come up. These "low conflict families require less intrusive interventions"
than do families with highly conflicted parents (Freeman, 1998: 110). Freeman describes four legal interventions that suit the level of conflict between the parents. Other problems may call for additional interventions (e.g. cases involving parents with no previous relationship with a child, cases involving a parent or child with a
mental illness or disability, and cases with a high risk of abduction).
The Australian Law Reform Commission recommended early identification of cases likely to give rise to ongoing problems and allocation of additional resources to these cases, as follows:
- a judge who would deal with the case at all stages (to ensure consistency and to eliminate the need for new judges to learn the history of the case);
- separate legal representation for the children (to ensure that the children’s rights and interests are represented);
- an assessment (to ensure that an expert opinion based on objective information is available);
- counselling for parents and children; and
- mediation services for appropriate cases (ALRC, 1995b: chapter 3). Canada’s Special Joint Committee recommended that there be early identification of high conflict families, and that such families be streamed into a specialized, expedited process and offered services designed to improve outcomes for their children (Canada, 1998b, Recommendation 32).
For cases in which ongoing access disputes are likely to arise, an access order that is specific about times and dates for access should be made. Enforcement actions are not possible unless the access order is specific (Michigan, 1998b: 6). A specific access order may prevent or alleviate disputes between parents who are not able to work out "reasonable"
terms of access, and will allow immediate enforcement when the terms of the order are not followed.
Evaluation is also important in cases of access denial or failure to exercise access in order to determine the appropriate course of action. If the government assumes responsibility for enforcing access orders, evaluation and recommendations should be included as an important part of that responsibility. The Michigan Friend of Court program enforces parenting time (access orders), and when it receives a complaint about access denial conducts an evaluation to determine whether to seek sanctions for contempt or a modification of the order "designed to ensure future parenting time and prevent future problems"
(Michigan, 1998b: 6).
No province or territory has made statutory provision for evaluation of all incoming cases, early identification of cases likely to give rise to ongoing problems, special services aimed at the cases identified as likely to be problematic, or evaluation of cases of failure to comply with access orders. As indicated in Appendix A, most provinces and territories have legislation or regulations dealing with court-ordered assessments in custody and access cases. There is no provision for assessment in the federal Divorce Act, but courts order assessments in divorce proceedings using provincial or territorial legislation. Many lawyers routinely request and many judges order assessments in contested custody and access cases, and often the assessment is used as a basis on which to settle disputes (McLeod & Mamo, 1998: 90).
There is a need for legislation and funding to support a system of early identification and for appropriate services to address issues that are likely to give rise to ongoing access enforcement problems. Specific access orders should be made for cases in which ongoing access problems are likely. As well, there is a need for legislation and funding to support evaluation of complaints about access denial and failure to exercise access to determine the appropriate course of action.
Parental Education
Parental education programs for all contested custody and access cases may be effective when offered as a preventive measure or as an alternative method of dealing with ongoing access problems. Parental education programs, which are aimed at improving outcomes for children and at decreasing ongoing conflict and litigation, are proliferating (Daisley, 1998: 7; Geasler & Blaisure, 1999).(40) Although such programs are still fairly new and untested (Beuhler 1992: 154; Kramer & Washo, 1993: 179; Frieman, 1994: 607; Arbuthnot & Gordon, 1996: 60; and Braver et al., 1997: 9), initial evaluations of parental education programs indicate that some models are successful on various measures (Gray et al., 1997: 280; Glenn, 1998). Kramer and Kowal, however, found that rates of re-litigation increased after introduction of a parental education program in Illinois (Kramer & Kowal, 1998).
Kramer et al. found that skills-based programs were more effective than were information-based programs at improving parental communication, that both kinds of programs reduced child exposure to parental conflict, that neither affected domestic violence, parent conflict or child behaviour problems (Kramer et al., 1998). The authors conclude that the "one-size-fits-all"
approach should be abandoned in favour of programs tailored for specific groups of parents according to their problems and abilities (Kramer et al., 1998: 29). Most programs in Canada are generic and not aimed at high conflict situations, but Manitoba offers a two-seminar program in which families are divided for the second session into low conflict and high conflict groups. The high conflict groups are taught about "a low-to-no-contact approach to post-separation communication"
(Canada, 2000). McIsaac and Finn found some positive results from a parental education program aimed at high
conflict families, but cautioned that it "is not a panacea but is one piece in an array of interventions designed to protect children from the very negative consequences of unresolved conflict and hostility between parents"
(McIsaac & Finn, 1999: 81). Fuhrman and colleagues, however, advise against limiting education on domestic violence to families in which it is present because of screening difficulties and the lack of specialized programs. These authors recommend that all parental education programs be designed so that they are appropriate for parents who have had an abusive relationship (Fuhrman et al., 1999). Most provinces and territories offer parental education programs to some extent (Canada, 2000), but, as indicated in Appendix A, there is almost no legislative provision for such programs.
Through a practice note (Court of Queen’s Bench Practice Note 1, "Parenting After Separation"
, September 1, 1997, amended July 1999), Alberta’s Superior Court has mandated that in a proceeding in which custody, access or child support is an issue, each party must attend a Parenting After Separation seminar. Parents do not have to attend the course when all the children are 16 years of age and older, or when both parties certify in writing that they have entered into a written agreement that settles all of the issues between them. Also, an exemption may be granted in situations involving domestic violence, kidnapping or abduction of a child, a unilateral change in de facto custody, or other extraordinary circumstances. In essence, this practice note prevents any application for child custody, access or support from being heard unless the application provides the clerk of the court with proof of course attendance. The practice note regulates
practice in the Superior Court and, although it does not apply to applications for custody, access and child support made in the lower court (Provincial Court), parties are encouraged to attend the course.
Alberta has also enacted legislation that authorizes a court to order the custodial parent, the non-custodial parent or the child to attend an education program in response to access denial or failure of the non-custodial parent to return the child in accordance with the access order. Alberta has no law, nor is there one anywhere else in Canada, requiring mandatory or voluntary parental education at the outset of a contested custody or access case.
Despite the absence of legislation regarding parenting programs, judges sometimes order or strongly recommend that parties attend such programs. For example, in one case the Ontario Court (General Division) ordered joint custody despite the objections of the mother, and ordered the father to participate in a parenting program with the mother if she asked him to.(41)
In a high conflict case, the Nova Scotia Family Court transferred custody to the father and strongly suggested that access by the mother would be eliminated unless the mother attended counselling or parental education classes to address the problems that were creating stress and high conflict during access visits.(42) In another Nova Scotia case, the Nova Scotia Court of Appeal suspended the father’s supervised access because he had failed to comply with a term of the access order that he take anger management counselling and arrange a program of counselling and parenting education with the children.(43)
The British Columbia Supreme Court ordered access that would increase to include overnight visits provided the father attended a parental education program.(44) Attendance at a parental education program has also been ordered in cases of access denial. In Manitoba in Paton v. Shymkiw, Steel J. ordered the custodial mother, who was in contempt of an access order, "to attend and complete the session offered by the Family Conciliation Services entitled For the Sake of the Children within one month from the date of these reasons and to file with the court a letter confirming her attendance,"
expressing the hope that "the session will help her understand the influence her actions have on her son."
(45)
The decisions made by, and recommendations of, judges on parental education in particular cases do not address the general need for parental education for parents in custody and access disputes. Although further evaluation and refinement of parental education programs is necessary, there is a growing consensus that such programs are effective at least to some degree. Mandatory or voluntary parental education should be available for all parents with custody and access disputes. Provincial and territorial legislation should be amended to provide courts with explicit authority to order parental education in cases of access denial or failure to exercise access.
Mediation
Another method of preventing or dealing with access enforcement disputes is mediation. When there has not been domestic violence and parents are able to work co-operatively, mediation may facilitate resolution of access disputes and prevent enforcement problems or be helpful when working out enforcement problems. Mediation is generally inappropriate when there has been a history of domestic violence (Bala et al., 1998: 72). Therefore, there should be adequate safeguards to prevent inappropriate use of mediation when there has been domestic violence. Mandatory mediation is not appropriate for family law cases (Cossman & Myktiuk, 1998: 67-70).
As indicated in Appendix A, the Divorce Act and Saskatchewan’s statute require lawyers to advise their clients in divorce cases of the advisability of negotiating support, custody or access, and to inform mediation services that might be able to facilitate negotiation of these matters. The statutes of most provinces and territories provide for court-ordered mediation. Only Quebec requires the parties to attend an information session on mediation prior to the hearing of any contested custody application. Ontario and Yukon allow court-ordered mediation only "at the request of the parties."
Only Newfoundland, the Northwest Territories and Nunavut explicitly authorize courts to order mediation in the case of wrongful access denial or wrongful failure to exercise access, although Ontario enacted legislation to this effect that has never been proclaimed in force. In Alberta, mediation can be ordered when there is a denial of access (with or without
excuse) and when the access parent has failed to return the child (with or without excuse, but not for failure to exercise access). No jurisdiction has enacted statutory limits on court-ordered mediation in cases of domestic violence.
Mediation is provided in some parts of most provinces and territories, and is free or government-subsidized in some cases. Officials of some government-supported mediation services report that they screen for violence and say that mediation must be voluntary (Canada, 2000).
Legislative authority to order mediation is unnecessary when mediation is voluntary. The provincial and territorial statutes that authorize courts to order voluntary mediation are unnecessary, and those that authorize courts to order mandatory mediation are problematic. What is lacking in Canada is legislation requiring voluntary mediation services, standards for those services, and funding to support services across the country. The statute in Michigan, a jurisdiction where mediation of custody and access disputes is strictly voluntary and where mediation is provided for all who choose it, provides a model that Canada should consider. Michigan’s Friend of the Court Act requires the following:
- all parties be given a pamphlet that includes information on the availability of, and procedures used in, mediation;
- all parties be informed of the availability of mediation for custody and parenting time (access) disputes;
- mediation be provided
"to assist parties in settling voluntarily a dispute concerning child custody or parenting time,"
and that parties should not be required to meet with a mediator; and
- mediators have specific qualifications. Michigan’s Act also states that communications made within mediation are privileged and inadmissible as evidence.(46) Provinces and territories should also include specific statutory requirements about screening for violence or other factors that make mediation inappropriate.
Supervised Access
Supervised access may address legitimate concerns on the part of the custodial parent and thereby helps avoid disputes and enforcement problems. As noted in Appendix A, only the laws in Newfoundland, the Northwest Territories, Nunavut, Ontario and Yukon explicitly provide that a court making an order for access may order that the access be supervised.(47) Only laws in Manitoba, Newfoundland, the Northwest Territories, Nunavut and Saskatchewan provide that access supervision may be ordered in the case of wrongful denial of access or wrongful failure to exercise access.(48) The Special Joint Committee recommended the Divorce Act be amended to make explicit provision for supervised access orders (Canada, 1998b: Recommendation 35). The provinces that have not already done so should make this amendment and should also allow judges to order supervised access for wrongful denial or failure to exercise access.
Even in the absence of such authority, courts have ordered supervised access under their general statutory power to impose "terms and conditions"
on custody and access orders.(49) Supervised access has been ordered when there has been domestic violence, there is a risk of abduction, there is no existing relationship between the child and the non-custodial parent, or the non-custodial parent suffers mental illness, abuses substances, or lacks parenting skills.(50) Supervised access has also been ordered to protect the child from emotional harm caused by the non-custodial parent during unsupervised access visits.(51) It "is also an important tool for the court as it can be used to monitor and report on the relationship and reactions of both parent and child."
(52) Some supervised access
services also serve a parental education function (Michigan, 1999; Bailey, 1999). Supervised exchange of children may be in the best interests of the child when the exchange is conflictual or when one parent uses exchange as a time to abuse the other (Bala et al., 1998: 35). Courts have also ordered supervised pick-up of children when there has been denial of access, thus providing an opportunity to document instances of wrongful denial on the part of the custodial parent (Pearson & Thoennes, 2000: 124).(53)
Supervised access is generally ordered to develop, re-establish or maintain a relationship between a child and a parent, or other relative, with the expectation that unsupervised access will at some point become possible. Some courts and commentators have said that supervised access is not appropriate as a long-term measure. Ontario Provincial Court Weisman J. wrote that supervised access is "a temporary and time-limited measure designed to resolve a parental impasse over access,"
not "a long-term remedy."
(54) The Ontario Court of Appeal also emphasized that supervised access should not be "a permanent feature of a child’s life"
and decided to terminate access, rather than ordering supervised access when it was not foreseeable that unsupervised access would ever be possible.(55)
Supervised access should be supplemented by services that address the issues that create the need for supervision so that parties may eventually move to unsupervised access. For example, when access is supervised because of violence on the part of the non-custodial parent, it is important that the abusive parent "be taking steps, such as participation in counselling, that will reduce the risk to the child and permit unsupervised access at some future time"
(Bala et al., 1998: 34). When access is supervised because the non-custodial parent lacks parenting skills, it "can only be a temporary remedy to introduce child to father and to assist the father in acquiring knowledge about the child and skills in parenting."
(56) Unfortunately, many supervised access programs are not permitted or are unable to provide any services beyond passive supervision, and often nothing is done to address the issues that have led to
an order of supervision (Bailey, 1999; Australia,1998b).(57) Non-custodial parents who have addressed the issues, by undergoing therapy or anger management programs, for example, may be permitted by courts to move from supervised to unsupervised access,(58) while some non-custodial parents may not be permitted even supervised access until they have undergone therapy.(59)
Access may be supervised by a supervised access facility, but many communities do not have facilities and those that exist have limited capacity (Canada, 2000). Many supervised access facilities report that they are underfunded and that their funding is insecure from year to year (Australia,1998b; Bailey, 1999). A volunteer or a relative may supervise access,(60) but in some cases such supervision does not provide adequate protection for the child.(61) When supervised access is ordered but an appropriate supervisor is unavailable, access may not take place.(62)
Some courts order supervision by a person the parties agree to, with the court intervening only in the case of disagreement.(63)
Researchers have found that children are ambiguous about supervised access services. They are generally pleased to have the opportunity to see the non-custodial parent but uneasy about the circumstances and aware of the tension between their parents (Australia, 1998b). Supervised access, as with any other access arrangement, should be ordered only when it is in the best interests of the child and the views of the child, when he or she is capable of giving them, should be heard and given due weight.
The Special Joint Committee recommended that the federal, provincial and territorial governments work together to ensure that supervised access facilities are available in every part of Canada (Canada, 1998b: Recommendation 34). This recommendation should be implemented, and adequate long-term funding put in place to support the facilities and to provide the necessary services to address the problems that created the need for supervision.
