REPORT ON FEDERAL-PROVINCIAL-TERRITORIAL CONSULTATIONS

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APPENDIX C: REPORT ON NEWFOUNDLAND AND LABRADOR

INTRODUCTION

Five consultation sessions on the new Divorce Act were held in Newfoundland and Labrador in May and June 2001. These consultations were sponsored by the federal and provincial departments of justice and held in Goose Bay, Corner Brook, Gander and St. John's (2). The topics covered in these sessions included roles and responsibilities of parents (parenting, custody and access), family violence, meeting access responsibilities and child support. A total of 90 people attended the sessions, ranging from parents, representatives of women's groups, lawyers, mediators, teachers, law enforcement workers, social workers, psychologists, mental health workers, representatives of community groups, and support application and court workers. Rick Morris of IHRD Group facilitated each of the sessions, held between May 31 and June 7, 2001.

KEY FACTORS IN POST-SEPARATION PARENTING

The two key factors described by participants as influencing post-separation parenting were the relationship and communication of the parents and the support services available to the parents and their children. Participants also mentioned specific things that affect post-separation parenting, including the following:

• the lack of parenting and legal information for parents throughout the province;
• cooperation and trust between parents;
• the lack of services, especially in rural areas;
• conflict between the parents;
• the need to keep children out of the middle of conflict;
• the responsibility and mobility of non-custodial parents;
• clear parenting plans;
• children's independent access to services;
• the need to keep a long-term vision of the process;
• the realities of people's circumstances (one size doesn't fit all);
• early resolution of issues, at least temporarily;
• members of the extended family and how they deal with separation issues;
• the presence or absence of violence and substance abuse; and
• third parties.

SERVICES

There were concerns raised in all sites except St. John's about the paucity of services to help separating couples and their children. Publicly funded family mediation is available only in the St. John's and Corner Brook areas, the latter as a result of a recent pilot project. There appear to be no formal public prevention programs in place for troubled marriages (e.g. marriage counselling or enrichment). Legal aid is overtaxed and access to it is often problematic. Support and education groups for children and parents, while seen as essential, are only offered sporadically outside of St. John's to date.

There were great concerns about service equity expressed in the sessions outside St. John's. The general sense was that a minimal service delivery requirement would be regional access to alternative and support services to families experiencing a marital separation and divorce. The fact that 50 percent of all relationships in the province end in separation and divorce was seen to be vastly underrepresented in terms of services available. Other common comments included the following:

• need for more legal aid services;
• lack of policing in rural and aboriginal areas;
• circuit court does not allow for adequate time to obtain information on the legal system;
• too much reliance on volunteers;
• lack of services, especially for children;
• lack of services generally in Labrador and central Newfoundland, which leads to inequity and danger in the case of women fleeing violence;
• 50 percent divorce rate but no associated services;
• services need to be available in a timely manner;
• need for child advocate;
• need for preventive services (i.e. marriage counselling, which is not currently available free anywhere in the province);
• need for mediation access with good screening tools for violence;
• parents need information on services available;
• where mediation exists, there are long waiting lists;
• services are accessed more easily through the court, and tend to serve primarily the court's interests;
• actual accessibility of services: when offered in St. John's, not accessible to other areas in that region (i.e. Harbour Grace and Marystown); and
• parenting courses are useful, as are informal networks.

CUSTODY AND ACCESS

For the most part, participants expressed the view that the terminology of custody and access is not in and of itself problematic, and that changing these terms may invite more, not less litigation as new terms (i.e. shared parenting) are tested. Interestingly, some lawyers who practise using the current terms were the ones who most strongly advocated for changes. Participants from the women's community were the ones most concerned about any new terms diluting or misrepresenting pre-separation parenting histories.

There were concerns raised about creating a presumption of shared parenting or joint custody in the new Divorce Act. While this may be a suitable option for many families, the general sense was that the historical parenting arrangement needs to be a key determinant of future plans. Mental health and school officials expressed specific concern about frequent shuttling of children from one parent to another, which they described as being more in keeping with the needs and interests of parents rather than children.

Most participants liked the emphasis on responsibility instead of rights in the proposed new Act. Many also suggested that a service to provide families with information on parenting and the law in a timely manner was essential.

Specific comments included the following:

• Changing the language will not change the issues. This was the predominant view in all but one session. Lawyers who do a lot of family law seemed more likely to support changes to the terminology than other participants.
• Any terminology used needs to be clear.
• There are concerns that the new concepts do not recognize women's typical roles.
• The current sub-divisions in the term custody cover all situations.
• Changing terms may open up a long legal process to test the new terms, and there will be a need for extensive training for all involved (there is no advantage to this).
• Money should go to services, not semantics.
• The emphasis on responsibilities instead of rights of parents was supported by all participants.
• The knowledge and experience of judges is key to how they deal with situations.
• There is a need for responsive services early on that educate parents; custody fights often begin because people don't know the process or the law.

FAMILY VIOLENCE

All participants agreed that situations of family violence need to be dealt with differently than other separations and divorces. There needs to be an acknowledgment that separation involving violence is high risk, and so a responsive system is essential. There needs to be a presumption that when violence to a parent occurs, this is harmful to any children involved, and is the responsibility of the perpetrator. The perpetrator of the violence has an onus to demonstrate that in order to ensure access may proceed, the safety of children and the other parent is not jeopardized. Screening tools need to be developed and used in assessing violence in pre-mediation processes. Follow-up review needs to be in place to ensure ongoing safety.

Some specific comments included the following:

• The term family violence is incorrect; it should be wife battering.
• Safety of the woman and children needs to be paramount.
• People are falling between the cracks and so are not being identified or served.
• It is difficult to get peace bonds in some areas.
• Women are being compelled to release their addresses and violent men are looking for custody.
• There needs to be a presumption that witnessing violence is akin in impact to violence itself. The notion that a man's violence toward his female partner is unrelated to his role as a parent needs to be abolished.
• There are cultural barriers in Labrador.
• Judges are very inconsistent on these issues.
• These issues need to be dealt with in a speedy process; fast-tracking is key.
• Violence should be a key determinant in obtaining custody.
• A man who has been violent needs to demonstrate his safety when obtaining access and should bear the costs of supervision.
• Supervision of access should be by trained personnel.
• There needs to be a follow-up and review process.
• There needs to be a screening process for violent men with respect to mediation and other family law considerations, including access.
• There may be need for an access service.
• Most violent men will not be convicted of an offence.
• Risk to well-being increases after separation.

ACCESS REQUIREMENTS

While some participants expressed frustration at the lack of responsibility shown by non-custodial parents in many situations, the consensus was that any remedies (e.g. fines) had the potential to harm the children involved. There was less focus on a parent refusing access, but similar sentiment in terms of remedies. The out-migration of parents in this province presents unique challenges in terms of long-distance access (e.g. costs and logistics) and for custodial parents pursuing opportunities. The participants focused on the need for supportive and responsive non-court service alternatives to assist in resolving such conflicts. Specific comments included the following:

• There are substantial mobility issues for custodial (e.g. not allowed to relocate for work) and non-custodial parents alike.
• While parents should not be allowed to walk away from access responsibilities, most participants agreed there were few options to address this issue. A "broken promises" clause was suggested in one session, but the remedies, if financial, are problematic as they affect children.
• Custodians (women) are being denied the right to move to pursue employment because of access rights of the other parent.
• There need to be services to encourage and educate parents.
• Enforcement is a concern, and other agencies (i.e. schools, hospitals and the police) are uncomfortable in the middle and inconsistent in dealing with parents.
• There needs to be an access service: arrangements should be reviewed to ensure they are in the best interests of children, and problem issues would go here to be resolved in a responsive manner by a "custody officer" with enforcement and assistance roles.
• There were considerable concerns raised about the frequent switching of residences in joint custody arrangements. The inference is that these arrangements have little to do with what is best for children but what is best for parents.

CHILD SUPPORT

The recent changes brought about by the child support guidelines were generally well received. However, the use of time as a key determinant of support amounts (the 40 percent rule) was heavily criticized as creating an undesirable link between support and access. Enforcement of orders was seen to be quite inadequate, and skewed negatively against women and children. Those participants not familiar with the enforcement system and its limitations expressed dismay at the lack of procedures to ensure support intended for children is paid. The need for more resources for enforcement agencies generally, and legislation enabling timely reciprocal enforcement between provinces specifically, were paramount issues. Other comments included the following:

• The child support guidelines have generally simplified issues.
• Enforcement is improving but is a long way from where it should be. There is a lack of will, which some linked to the fact that it is primarily women and children who are negatively affected (i.e. reciprocal enforcement can take more than two years, it is difficult to obtain tax information and find non-payers). One suggestion was a national registry.
• Clients need to better understand how enforcement works.
• The dollar-for-dollar reduction for parents on income support receiving child support was generally seen as unfair, as working parents can keep a portion of their income without penalty. It also decreases motivation to apply for support.
• Child support as currently structured is not the "Inuit way of doing things."
• The 40 percent rule links support and custody in a way that is unhealthy in some circumstances: it makes women poorer and men richer. Is time the measure we want to use?
• Support agencies do not have the resources or teeth they require.
• There should be regular reviews of support orders.
• The court process is too long when changes are to be considered.

SUMMARY

The participants in the sessions held in Newfoundland and Labrador emphasized that the need for a responsive and supportive service system, with an emphasis on out-of-court processes (i.e. mediation, education) and enforcement of existing orders (e.g. custody and access and child support), was generally greater than the need for new divorce legislation. Existing public services require more resources (e.g. legal aid and support enforcement). The need for legislation and supportive processes to better address situations of violence was acknowledged. Procedures and laws were recommended to ensure child support is received as intended. Terminology changes were not supported by a majority of participants.

The overall sentiment of these groups is that the current system in place to support separating and divorcing couples and their children is neither responsive nor supportive enough, and provides inadequate and inequitable access to alternatives to the court process. Given the numbers of adults and children involved, participants felt there needed to be a more direct investment in creating and enhancing such services.

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