SUMMARY AND OVERVIEW

There is significant evidence that access denial and failure to exercise access are significant problems, not only in Canada, but in other jurisdictions as well.  While the precise scope of these problems remains unclear, the research suggests that failure to exercise access is a more prevalent problem than access denial.  Where access is seen as a parental responsibility serving the child's best interests, rather than a parental right, both denial of access and failure to exercise access are equally important problems that need to be addressed.  Yet enforcing exercise of access seems counter-productive at best, and if, as the research shows, the custodial parent's well-being is the single most important predictor of children's well-being, the onerous punishment of unwarranted access denial will be as well.

Complicating these issues is the fact that most of the access disputes pursued through the courts are complex cases involving an ongoing dynamic of extreme hostilities having their origin in the parents' unresolved separation.  Disproportionately high numbers of these cases also involve violence and/or abuse.  Punitive enforcement measures by the courts do not resolve these kinds of disputes and may actually encourage them.

The brief survey of legislative approaches to enforcement in Chapter 2 reflects the awareness of these difficulties in most jurisdictions, and the diverse strategies being adopted to address them.  The most common approach is to prevent or resolve access disputes before they enter, or go too far into, litigation.  The brief survey of strategies in Chapter 3 indicates that parenting education, counselling and mediation are effective in reducing hostilities at the time of separation and divorce, and do help parents reach initial agreements.  However, these supports appear to be most effective for those disputing parents who need the least help, and ineffective for those parents who need the most help and who will end up using the most court time.  It is not clear, therefore, just how much difference these programs ultimately make, although they do seem to make some difference.

For those jurisdictions where access continues to be awarded in very difficult cases-which would appear to be virtually all jurisdictions-by far the most popular strategy for resolving disputes is supervised access.  Whether this is a solution that is always in the child's best interests, or whether it is a long-term solution as it is increasingly expected to be, is uncertain.

ADDRESSING DATA NEEDS

This report surveyed the state of the research on the incidence of unwarranted access denial and non-exercise of child access, as well as the legal caseload of access enforcement.  The only systematic Canadian study found on these issues was the data on non-exercise of child access collected by the National Longitudinal Study on Children and Youth (NLSCY).

More systematic and reliable data are needed, either from existing Statistics Canada surveys or from specific court-based projects.  Table I lists data that the author identified as important, the survey instruments from which these data could be drawn-or, in some cases, are already being drawn-and a brief indication of each item's potential use.  Clearly, the survey instruments would need in-depth analysis before any decisions could be made about adding the proposed items.

The items are listed in three categories:  unwarranted access denial, failure to exercise access and court caseload, or the cases in the court system involving access denial and failure to exercise access.

Unwarranted Access Denial

The items in this category provide information on the following:

Surveys of parental self-reports cannot be trusted to reveal the actual incidence of access denial because parents' perceptions of access denial often err for a variety of reasons.  Even when the survey documents the incidence of certain specified events,[24] it requires parents to judge whether things actually happened that way, and whether the custodial parent was actually denying access, with all the knowledge and intention that the word denial implies.  Parental reports provide an even less trustworthy picture of the incidence of unwarrantedaccess, because parents' lack of legal knowledge and their vested interests make them poor judges of whether any access denial was warranted.

Still, data from parental self-reports is important to policy making that treats access denial as one component of-and often a symptomatic measure of-more general problems in post-separation parenting practices among Canadian families, and has as its goal the fostering of post-separation arrangements that serve the child's best interests.

Large-scale surveys such as the NLSCY provide large survey samples, and a great deal of other data on the families against which the access denial data can be compared.  These surveys are limited, however, in being able to measure only aggregates:  they cannot compare responses of custodial and access parents in individual couples.

Court-based projects could also periodically collect data on the incidence of access denial, by tracking separated or divorced couples with court orders (cf. Ellis, 1995).  A court-based project would sample vastly fewer families, however, and only those with court orders.  Slightly less than one half of separating and divorcing parents do not have court orders even five years after separation (Department of Justice Canada, 1999).  Existing research suggests only a minority of these will have access problems.  Respondents to a court-based survey are also more likely to be self-selecting.

The NLSCY seems a suitable survey vehicle for collecting this information because it is a large, longitudinal and national (25,000 sample) study that:

The survey can track both custodial and access parents' post-separation lives, but its current methodology needs adaptation to survey separated fathers and to explore the nature and impact of relationships between children and access parents (Department of Justice Canada, 1999).  It would take considerable time to develop and pilot the questions (researchers would need to determine whether the additional questions made the survey unwieldy, for example, and to develop protocols for reaching access parents).

Failure to Exercise Access

The NLSCY already collects longitudinal data on exercise of access by access parents, and on the factors associated with different access patterns (Department of Justice Canada, 1999).  No surveys currently collect data on specific instances of failure to exercise or breach of access-specific instances in which access parents fail to pick up the child as specified in the access agreement, or fail to return the child on time.

Analyzed in concert with items 5-11 in Table I, the data items in failure to exercise access section would provide information on the following:

The NLSCY would seem the natural vehicle to expand and deepen the data already collected with the new items suggested.  The General Social Survey (GSS) also explores social relationships, including parental relationships with children.  However, the GSS is smaller (10,000 or so sample size) and not longitudinal, so it would not be possible to analyze the impacts of quality of access on child or parents.

Court Caseload

The items in this category provide information on the following:

Given the small numbers of individuals making court applications concerning access denial and other post-parenting problems, it would be inappropriate to gather this data from large-scale surveys designed for broader purposes.  However, the courts do not currently collect systematic data that could be used to assess access enforcement in the courts.  The first step to collecting this data in a systematic way would be to implement a consistent and appropriate system of court recording within Canadian courts.  A recent study (Ellis 1995) concluded that it would also be feasible to mount a periodic national study of custody and access issues, using court files to identify claims and claimants, and as a basis for follow up with families.  A court-based project would be too small to make longitudinal study of families possible, since attrition rates would be too high.  Still, it would need to be national, and to collect data periodically over considerable time, to be useful to policy makers.[25]

The court-based project envisaged above would have two complementary parts:  providing data on the numbers and kinds of access enforcement cases that occupy the courts, and providing data on the characteristics of the applicants, derived from follow-up interviews with applicants.

In follow-up interviews, the project could use the same questions proposed for the NLSCY to assess the nature of the applicants (items 5-12 on unwarranted access denial and items 4-6 on failure to exercise access).  This would enable researchers to compare the characteristics of this tiny-and possibly atypical-group with the characteristics of other Canadian separated and divorced couples with young children.  A court-based study would also facilitate qualitative research into the problems of access denial and failure to exercise access.  Despite the small numbers of subjects involved, this project would take considerable time to mount, depending on the number of researchers involved.

TABLE I :  DATA NEEDS AND POTENTIAL DATA SOURCES

Section A:  Unwarranted Access Denial

Section B:  Failure to Exercise Access

Section C:  Court Caseload

Notes to the Table

• Unwarranted Access Denial
  
  • 3. Lists of possible reasons for denying access can be found in Thiessen (1994), cited in Strategic Partners (1998).
  • 4. A list of possible kinds of "interference" can be found in Kruk (1993), p. 62.
  • 5. Hirst and Smiley (1984) provide a range of access types:  free, regular flexible, regular rigid, irregular (not more than once in six months) and no access.
  • 5-8. The variables listed in items 5-8 are already collected by the NLSCY for separated and divorced parents as a whole.
  • 9. Question modelled on survey by Perry, Bolitho, Isenegger and Paetsch 1992, cited in McCall (1995).
  • 11. The NLSCY already captures level of tension among separated and divorced parents as a whole.  However, recent literature distinguishes between levels of conflict and ability to resolve access conflicts, and suggests child outcomes do not suffer when high conflict parents have strategies to resolve access disputes (cited in Kelly, 1993).
• Failure to Exercise Access
  
  • 2. Possible lists of self-reporting reasons for failure to exercise can be found in Kruk (1993), and Family Law Council (1998a).
  • 3. It is not clear whether this information is already available, but was simply not included in the custody- and access-related analysis of the NLSCY (Department of Justice Canada, 1999), or if access parents' characteristics are not tracked after separation or divorce.

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