Appendix A
Survey on Custody, Access and Child Support Issues
The Canadian Research Institute for Law and the Family is conducting this project to obtain feedback from delegates to the Family Mediation Canada—National Capital Region Conference 2000 concerning their experiences with custody, access and child support issues, and to solicit expert opinion concerning possible reforms in these areas. The project is funded by the Department of Justice Canada.
We would appreciate your assistance in completing this survey. Feel free to add additional pages for comments if desired. Please be assured that your anonymity will be maintained and that responses will not be attributed to individuals.
Please drop off the completed survey at the conference registration desk or at the Department of Justice booth any time during the conference.
Thank you for your co-operation in completing this survey.
If you attended the Federation of Law Societies of Canada’s National Family Law Program in St. John’s, Newfoundland in July and completed this survey there, please do not complete it again.
CONSULTATION ON CUSTODY, ACCESS, AND CHILD SUPPORT
Friday, October 20, 2000, 8:45 a.m.—10:15 a.m.
Presented by: Lise Lafrenière-Henrie and Marilyn Bongard
In conjunction with this survey on custody and access and child support issues, there will be a consultation on custody, access, and child support. The consultation is intended to gain more in-depth information from a smaller group of conference participants.
Many Canadians are concerned about the approach and adequacy of the current family law system. The Government of Canada is working with the provinces and territories to improve the framework within which child custody and access determination are made, as well as other family law issues. Justice Canada has undertaken to consult on child custody and access issues, as well as on some child support issues. This workshop will allow you to comment on what governments should do to help families going through separation or divorce. This is your opportunity to contribute to the development of policy addressing these two interesting and important topics.
SURVEY ON CUSTODY, ACCESS AND CHILD SUPPORT ISSUES
1.0 Best Interests of the Child
Currently, subsection 16(8) of the Divorce Act provides that in making a custody order, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs, and other circumstances of the child.
1.1 Should the Divorce Act continue to include the "best interests of the child" test?
- Yes (If yes, please go to Question 1.2)
- No (If no, what should replace the "best interests of the child" test?)
(If you do not think the Divorce Act should include the "best interests of the child" test, please go to Section 2.0)
1.2 Should the Divorce Act include more specific criteria respecting the best interests of the child?
- Yes
- No (If no, please go to Section 2.0)
1.3 Please rate the following criteria as high, medium, or low importance in terms of the best interests of the child. If you do not think the criterion is relevant, please check the "Not Relevant" box.
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High
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Medium
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Low
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Not-Relevant
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Criteria
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Opportunity for the child to maintain a strong and stable relationship with both parents
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Opportunity for the child to maintain a strong and stable relationship with other members of his or her family
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Opinions and wishes expressed by the child
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Ability of parent(s) to provide guidance, education, basic needs, and other special needs of the child
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Child’s cultural, ethnic, and religious background
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Ability of the parents to co-operate and communicate with each other on important issues concerning the child
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Ability of the child to adjust to the new parenting arrangement
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Willingness of each parent to encourage a close relationship between the child and the other parent
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Need to protect the child from physical or psychological harm caused by violence or exposure to violence
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Ensuring there is no preference in favour of either parent on the basis of that parent’s gender
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Quality of the relationship that the child has with the parent(s)
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Arrangements that encourage the child’s emotional growth, health, stability, and physical care at every stage of the child’s development
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Protecting the child from continued exposure to conflict between parents
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Personality, character, and emotional needs of the child
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Caregiving role assumed by each parent before the break-up
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Other (Please specify)
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2.0 Voice of the Child
The United Nations Convention on the Rights of the Child asserts the right of the child to participate in decisions that affect his or her life.
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2.1 Do you think that legislative reforms or service improvements are necessary to better enable children to voice their views when parenting decisions affecting them are being made?
- Yes
- No (If no, please go to Section 3.0)
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2.2 What legislative reforms or service improvements do you think are necessary to enable children to voice their views? (Please check all that apply)
- Judicial interview with child
- Testimony by child
- Assessment report
- Legal representation for child
- Non-legal representation for child
- Legislative provision that parents should consult their children respectfully when making parenting arrangements upon separation
- Other (Please specify)
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2.3 What factors do you think should be considered when deciding what weight should be given to the child’s views? (Please check all that apply)
- Age of child
- Ability of child to communicate
- Ability of child to understand the situation
- Child’s emotional state
- Child’s reasons for views
- Indication of parental coaching
- Other (Please specify)
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2.4 How much weight should be given to the preferences of a child regarding custody decisions at the following ages?
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None
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Light
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Heavy
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Age Group
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Under 6 years of age
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6 to 9 years of age
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10 to 13 years of age
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14 years or older
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3.0 Family Violence
The Government of Canada strongly believes that it is important to send a message that all aspects of the family law system must take into account incidents of family violence involving the child or a member of the child’s family.
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3.1 How should legislation recognize family violence as a factor in decision-making respecting children post separation and divorce? (Please check all that apply)
- Legislation should provide that domestic violence is a factor that negatively affects children and should be considered in determining parenting arrangements
- Legislation should provide a statutory definition of family violence
- Legislation should preclude mandatory mediation where there is evidence of family violence
- Legislation should clarify that shared parenting should not be ordered where this could cause abuse, serious harm, or injury
- History of family violence should be a factor considered in evaluating the "best interests of the child" test
- Legislation should provide that supervised access should be ordered where necessary to protect the child
- Legislation should create an offence for false allegations of abuse or violence
- Other (Please specify)
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3.2 What other reforms or service improvements would be useful? (Please check all that apply)
- Independent assessment services
- Legal representation for children
- Better accessibility to Legal Aid
- Better access supervision services
- Better counselling services
- More education for parents on the effects of family violence on hildren
- More education for professionals on the effects of family violence on children
- Other (Please specify)
4.0 Managing High Conflict Situations
Experts agree that exposure to unresolved, high-conflict situations increases risk factors in children.
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4.1 Should legislation define high conflict spousal relationships?
- Yes
- No (If no, please go to Question 4.3)
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4.2 What factors should be included in a legislative definition of high conflict spousal relationships? (Please check all that apply)
- Long-term disputes involving high degrees of anger and distrust
- Chronic disagreements over parenting issues
- Unsubstantiated allegations of poor parenting
- History of misuse of the legal system
- Other (Please specify)
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4.3 Should there be specialized legislative provisions or other procedures to deal with high conflict disputes?
- Yes
- No (If no, please go to Section 5.0)
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4.4 What types of legislative provisions or other procedures would be workable and useful? (Please check all that apply)
- Legal representation for children
- Legislation clarifying that shared parenting should not be ordered where there are long-term, emotional, high conflict disputes
- Special provisions for access to the courts
- Special provisions for case management
- Special assessment services
- Special mediation services
- Special counselling services
- Specialized education for parents on high conflict cases
- Other (Please specify)
5.0 Promoting Non-adversarial Dispute Mechanisms
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5.1 Should the current subsection 9(b) of the Divorce Act (the provision that imposes a duty on lawyers to inform and discuss with their clients the availability of mediation facilities) be strengthened?
- Yes
- No (If no, please go to Question 5.3)
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5.2 How should subsection 9(1) b) be strengthened?
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5.3 What mechanisms or services would be useful to support parents in resolving disputes about their children? (Please check all that apply and indicate whether the mechanism or service should be voluntary or mandatory)
What mechanisms or services would be useful to support parents in resolving disputes about their children? (Please check all that apply and indicate whether the mechanism or service should be voluntary or mandatory)
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Voluntary
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Mandatory
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Mechanism or Service
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Marriage/Family Counselling
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Mediation Services
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Parenting Plans
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Parenting Education Programs
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Access Supervision Services
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Other (Please specify)
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5.4 How can parents be better informed of mechanisms or services to support them in resolving disputes about their children? (Please check all that apply)
- Printed materials (e.g., brochures, booklets) available at law offices
- Printed materials (e.g., brochures, booklets) available through the courts
- Multimedia advertising (e.g., television, newspapers, Internet)
- Ensure information is available early in the process
- Other (Please specify)
6.0 Access and Compliance
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6.1 Are stronger legislative measures than s. 16(10) (the "friendly parent clause") or other measures required to promote children’s extensive and regular interaction with both their parents?
- Yes
- No (If no, please go to Question 6.3)
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6.2 What legislative or other measures do you think are required to promote children’s interaction with both their parents? (Please check all that apply)
- Presumption of shared parenting
- Punishing and sanctioning the parent who breaches an access order
- Stronger legislative measures dealing with the non-exercise of access
- Education for parents on the benefits for children of contact with both parents
- Requiring lawyers and judges to explain to each party the obligations created by a parenting order and the consequences of non-compliance with orders
- Court-connected office to enforce access orders
- Supervised access services
- Mediation services
- Counselling services
- Other (Please specify)
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6.3 Do you think parents should be encouraged to formalize in a written agreement or court order their custody and access arrangements?
- Yes
- No (Please go to Question 6.5)
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6.4 What mechanisms or services would encourage parents to formalize their custody and access arrangements? (Please check all that apply)
- Better access to Legal Aid
- Better access to information
- Mediation services
- Counselling services
- Parenting education programs
- Parenting plans
- Other (Please specify)
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6.5 When extensive and regular access arrangements involve financial costs, how should these costs be dealt with? (Please check all that apply)
- The issue of costs should be specifically included as part of the access order
- Child Support Guidelines should reflect an adjustment for these costs
- Costs should be shared in proportion to income
- All costs should be borne by access parent (i.e., the present model)
- "Extensive and regular interaction" should be specifically defined (e.g., a threshold amount of time)
- Other (Please specify)
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6.6 When a custodial parent wishes to move to a location that would affect the current access arrangements, how should this be dealt with? (Please check all that apply)
- There should be a presumption in favour of the custodial parent
- There should not be a presumption in favour of the custodial parent
- Decisions should be based on the best interests of the child
- There should be a statutory notice period (e.g., 90 days) to allow time for altering access schedules, negotiation, or litigation if necessary
- The custodial parent should have to show that the reason for the move is something other than to frustrate access by the non-custodial parent
- Financial arrangements should be adjusted to allow regular visits by the non-custodial parent
- Other (Please specify)
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6.7 What legal approaches or program supports could address the problem of enforcing access orders? (Please check all that apply)
- Create offences for wrongful denial of access
- Legislation should provide a statutory definition of wrongful access denial and provide remedies for access denial only if it is wrongful
- Legislation should authorize courts to order compensatory access and compensation for expenses incurred as a result of access denial
- Use of mediation
- Use of counselling
- More access supervision services
- Agency enforcement
- Special education for parents on the problem
- Provincial legislation or court rules to facilitate quick reaction by courts
- Other (Please specify)
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6.8 Are stronger legislative or other measures required to promote children’s extensive and regular interaction with their grandparents?
- Yes
- No (If no, please go to Section 7.0)
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6.9 What legislative or other measures do you think are required to promote children’s interaction with their grandparents? (Please check all that apply)
- More specific statutory references to the importance of grandparents in "best interests of the child" criteria
- Specifying grandparents in legislation
- Better counselling/support for parties in this situation
- Special education on the problem
- Including provisions in parenting plans for access by grandparents
- Other (Please specify)
7.0 Clarifying Terminology and Parental Responsibilities
Listed below are four options that the Department of Justice Canada is considering for legislative changes to terminology in the Divorce Act.
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Option 1: Status Quo
- Maintain existing terminology in legislation. Leave the current "custody" and "access" terms and their meanings alone.
- Focus on services, rather than a change in terminology to better serve the interests of children and reduce conflict between parents.
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Option 2: Clarify the Meaning of "Custody"
- Maintain terminology of custody, but introduce the terminology of "parental responsibility."
- The meaning of the current term "custody" would be re-defined and clarified. Parental responsibility would be the wider term relating to all of the duties, responsibilities and authority which a parent of a child has in relation to his or her child. "Custody" would refer more specifically to the residential caregiving duties and the authority that goes along with that.
- A general definition of "parental responsibility" would be adopted such as, "all the duties, powers, responsibilities and authority that a parent of a child has in relation to the child." In keeping with the Quebec "parental authority" approach, while both parents would maintain "parental responsibility," the practical exercise of this responsibility would need to be described. An agreement or court order would therefore set out how custody (residence), access, and decision-making authority would be exercised between the parents.
Option 3: Allocating Parental Responsibility
- This option involves eliminating the terms "custody" and "access" from family law legislation respecting private parenting disputes. The new concept and terminology of "parental responsibility" would be introduced and would emphasize the allocation of specific aspects of parental responsibility between the parents based on the best interests of the child.
- As noted in Option 2, a general definition of "parental responsibility" could be adopted such as, "all the duties, powers, responsibilities and authority that a parent of a child has in relation to the child."
- The legislation would indicate that both parents would have "parental responsibility" and would also include an additional statutory provision that would more specifically identify the specific responsibilities and duties of parents in relation to their children such as:
- maintaining a loving, nurturing and supportive relationship with the child;
- seeing to the daily needs of the child, which include housing, feeding, clothing, physical care and grooming, health care, daycare, and supervision;
decision-making concerning the child’s welfare, health care, education and religion;
- providing emotional support for the child; and
- providing financial support for the child.
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Option 4: Shared Parenting (the Recommendation of the Special Joint Committee)
- Eliminate the terms "custody" and "access" from both the Divorce Act and provincial family law legislation and replace them with the term "shared parenting."
- The Special Joint Committee’s report For the Sake of the Children recommended that the term "shared parenting" be adopted so that all the meanings, rights, obligations and common law and statutory interpretations previously embodied in the terms custody and access would be exercised jointly by both parents.
- While the Joint Committee does not recommend a presumption of equal time-sharing as being in the best interests of children, the key feature would be a presumptive starting point that the rights and responsibilities of child rearing be shared in an equal or near equal division, and that children would have extensive and regular interaction with both parents.
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7.1 Which option would you like to see implemented?
- Option 1: Status Quo
- Option 2: Clarify the Meaning of "Custody"
- Option 3: Allocating Parental Responsibility
- Option 4: Shared Parenting (the Recommendation of the Special Joint Committee)
- None of the Above (Please explain)
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7.2 Which option best promotes child-centred decision making?
- Option 1: Status Quo
- Option 2: Clarify the Meaning of "Custody"
- Option 3: Allocating Parental Responsibility
- Option 4: Shared Parenting (the Recommendation of the Special Joint Committee)
- None of the Above (Please explain)
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7.3 Is emphasizing parental responsibilities rather than parental rights an appropriate reform objective?
- Yes
- No (If no, please go to Question 7.5)
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7.4 Which option best emphasizes parental responsibilities rather than parental rights?
- Option 1: Status Quo
- Option 2: Clarify the Meaning of "Custody"
- Option 3: Allocating Parental Responsibility
- Option 4: Shared Parenting (the Recommendation of the Special Joint Committee)
- None of the Above (Please explain)
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7.5 How else can legislation provide guidance in determining parents’ responsibility for their children on separation and divorce?
8.0 Child Support Issues
Child Support Paid Directly to Children
The Federal Child Support Guidelines recognize that judges may treat older children who are still dependent on their parents differently from minor children when it comes to determining child support amounts. Older children may have part-time jobs or be living away from home while going to school.
Parents and other people have questioned whether it is best for the paying parent to continue to pay the child support for older children to the receiving parent (who provides a home for them) or to pay it directly to the children.
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8.1 Please indicate which of the following statements best reflects your opinion on direct child support payments to children at the age of majority or older:
- In all cases, one parent should be able to argue in front of a judge that child support be paid directly to children at the age of majority or older and the other parent should be able to present arguments opposing that position.
- Direct payment of child support to children at the age of majority or older should be permitted in every situation, provided that the receiving parent and the children agree.
- Direct payment to children at the age of majority or older should be allowed only when the children are living away from home for most of the year, provided that the receiving parent and the children agree to this.
- Direct payment of child support to children at the age of majority or older should be allowed only when the children are living away from home for most of the year, provided the children agree, but regardless of whether the receiving parent agrees.
- Direct payment of child support to children at the age of majority of older should never be allowed.
- Other (please specify)
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Disclosure of Information
8.2 Do you think that the Federal Child Support Guidelines should be changed so that either the receiving parent or the children at the age of majority or older (whoever actually receives the child support payment) must provide the paying parent with information about the status of the children (for example, proof that they are still enrolled in post-secondary studies)? This would apply in all cases when support is to be paid to children at or over the age of majority, not just those that include special expenses.
- Yes
- No
- Other (please specify)
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8.3 Do you think that the Federal Child Support Guidelines should be changed so that either the receiving parent or the children at the age of majority or older (whoever actually receives the child support payment) must provide the paying parent with information about the children’s finances? This would apply in all cases when support is to be paid to children at or over the age of majority, not just those that include special expenses.
- Yes
- No
- Other (please specify)
Child Support Obligations of a Spouse Who Stands in Place of a Parent
The Federal Child Support Guidelines currently state that when spouses stand in the place of children’s parents, judges may order a child support amount they consider appropriate, taking into account the amount set out in the child support tables in the Guidelines and the legal duty of any other parent to support the children.
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8.4 Which of the following procedures should the Guidelines set out for calculating the amount of child support the stepparent pays?
- Child support table amount minus the amount any other paying parent pays
- Child support table amount for each paying parent (i.e. the biological parent and the stepparent)
- Other (please specify)
Defining Shared Custody
Currently, section 9 of the Federal Child Support Guidelines states that shared custody exists if a parent has custody of or exercises access to a child for not less than 40 percent of the time over the course of a year.
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8.5 Which of the following options do you prefer for defining shared custody?
- The definition should be based only on the amount of time each parent spends with the children.
- Time should not be the only criterion. Judges may also consider other factors based on the level of parental responsibility.
- Other (please specify)
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8.6 Which of the following factors should be included in a definition of shared custody? You may check more than one box. If you do, please rank your choices by numbering them (1 for your first choice, 2 for your second, etc.)
- how parents share the children’s expenses (Who pays what?)
- the living accommodations for the children in each parent’s home (Does the child have two principal residences?)
- the proximity of the parents’ residences and the feasibility of the arrangement (Does the arrangement really lend itself to shared custody?)
- the existence and content of a parenting plan (What does the parenting plan say?)
- the decision-making process (Do both parents have high levels of responsibility and do they make decisions together?)
- Other (please specify)
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8.7 Please indicate which one of the following statements best reflects your opinion on how the time element of the shared custody should be defined:
- Each parent should have the children at least 40 percent of the time.
- The parents should share their children on a "substantially equal" basis.
- Other (please specify)
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8.8 What term do you prefer to capture the concept of shared custody in the Guidelines for the strict purposes of determining child support? Please check only one box.
- Shared custody (keep the current term regardless of whether the terms custody and access are dropped from the Divorce Act)
- Shared residence
- Dual residence
- Shared residency
- Dual residency
- Other (please specify)
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Determining the Child Support Amount
8.9 Please indicate which one of the following statements best reflects your opinion of how child support should be determined in shared custody arrangements.
- The current shared custody section in the Guidelines should continue to apply. The judge should have a high level of discretion when setting the amount of child support.
- Parents and the judge should rely on budgets the parents prepare to calculate child support in shared custody arrangements. The judge should still have discretion to set the amount of child support.
- The judge could use various formulas to help determine the child support amount:
Which formula would be most appropriate?
- simply offset the table amounts of both parents
- multiply the table amounts of both parents by 50 percent to recognize the increased costs of shared custody and then offset the amounts (this formula is used in many American states)
- gross up the table amounts by the amount of time each parent spends with the children and then offset the amounts
- create separate child support tables for shared custody arrangements
- The Guidelines should include a set formula or tables developed for the calculation of child support in all shared custody arrangements. The judge should have little discretion to set the amount of child support.
- The Guidelines should include a set formula or tables developed for the calculation of child support in all shared custody arrangements. However, the formula or tables should be provided only as guidance. The judge should still have some discretion to set the amount of child support.
- The standard of living in each parent’s household should be equalized. The judge should use a test, such as the Comparison of Household Standards of Living Test in Schedule II of the Guidelines, to determine the appropriate amount of child support. He or she should have little discretion to set the amount of child support.
- Neither parent should pay child support in shared custody arrangements.
- Other (please specify)
9.0 Professional Information
9.1 In what province(s)/territory do you work?
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9.2 What is your profession?
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9.3 Do you practice mediation?
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9.4 Approximately how many custody and access cases have you handled in the past year?
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9.5 How often do you refer your clients to a lawyer?
- Never
- Occasionally
- Frequently
- Always
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9.6 How often do your cases proceed to litigation?
- Never
- Occasionally
- Frequently
- Always
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9.7 How often do you settle cases that involve custody and access issues?
- Never
- Occasionally
- Frequently
- Always
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9.8 How often do you settle cases that involve child support issues?
- Never
- Occasionally
- Frequently
- Always
Thank you for completing this survey.
