Child Access in Canada: Legal Approaches and Program Supports

ENDNOTE

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• [1] Note, no court order covers custody and access arrangements for some 40 percent of Canadian children five years after their parents have separated (Department of Justice Canada, 1999).
  
  
• [2] Note also, in Hirst & Smiley (1984), most of the Australian mothers whose ex-spouses never visited were quite happy with this situation and did not think it affected their children's well-being. However, this attitude may be changing. A recent survey of Australians' attitudes about post-separation parenting found that most mothers and fathers believe both parents should remain involved if possible. Funder & Smyth (1996) report on their attitudes study in Family Matters, Journal of the Australian Institute of Family Studies.
  
  
• [3] British Columbia is one such province. Interview with Debbie Chan, researcher with the Family Law Division of the provincial Attorney General.
  
  
• [4] Basing its estimate on the 1,611 contested contact matters that came before the court in 1993-94, the Australia and New Zealand Association of Children's Access Services (ANZACAS) calculated that contested contact matters cost the Australian courts Aus $75 million in 1993-94. It estimated the court spent another $75 million on matters commenced in the court but settled prior to hearing (ALRC, 1995). ANZACAS changed it's name in 1996 to Australian and New Zealand Association of Children's Contact Services (ANZACCS).
  
  
• [5] Thegreater frequency of mothers' contact may partially reflect different access awards among non-custodial mothers and fathers.
  
  
• [6] For Canadian data see Department of Justice Canada, 1999, Figure 14. The high association between child support and exercise of access is also found in other jurisdictions.
  
  
• [7] Whether there is a causal connection between maintaining access and paying child support, or whether both behaviours are rooted in a third factor (such as parental attachment or high cooperation among ex-spouses), is debatable. Furthermore, if there is a causal connection, which factor causes the other? Many researchers doubt that enforcing either access or child support has a positive effect on the other variable. This skepticism is supported by the National Longitudinal Survey of Children and Youth data (Department of Justice Canada, 1999), which suggest that access parents are much more likely to maintain close contact if their child support agreements are private and voluntary. An analysis of the U.S. National Longitudinal Study of Youth found no causal links between visitation and child support payments, and suggested that a third factor explained high levels of both (Nord & Zill, 1996).
  
  
• [8] However, the claims made in many submissions indicated that many custodial parents did not know they could legally bring breaches of access and failures to exercise access to court.
  
  
• [9] In its final report the Family Law Council recommended a three-tier approach to access enforcement, starting with (a) preventive strategies, such as ordering counselling and attaching model orders and warnings on orders about the significance of breaching contact orders; followed up with (b) remedial strategies when no resolution was reached, including referral to anger management, the court's parenting education program or parenting skills sessions, and reaching (c) punitive measures only as a last resort or when there was deliberate disregard for a court order. It urged avoiding a punitive approach if possible, since it could merely support a parent whose main aim was to punish his or her former partner.
  
  
• [10] Nonetheless, the new law explicitly asserts that in practice the residence parent(s) will have most of the day-to-day decision-making responsibilities (as well as all of the caring responsibilities) while the child is living with them (Rhoades et al., 1999).
  
  
• [11] The new laws also eliminated "the best interests of child" as the explicit governing principle in awarding compensatory access as a penalty for breach of access (Family Law Council, 1998a).
  
  
• [12] There were about 3,800 contested custody and access cases in 1996-97. Only five percent of contested custody and access cases were finalized in 1996-97, compared to 23 percent in 1995-96, indicating that the courts are taking much longer to deal with cases than before the reform (see Family Law Council, 1998b).
  
  
• [13] In some U.S. jurisdictions, children can be imprisoned for refusing to see their access parent, and in several court cases children as young as seven years of age have been sent to detention centres for refusing visits (see Murray, 1999, for examples and discussion).
  
  
• [14] Personal communication with Steve Capps, Management Analyst, Friend of the Court Bureau, Lansing, Michigan.
  
  
• [15] Personal communication, Steve Capps.
  
  
• [16] The law puts limits on both shared parenting arrangements and future dispute resolution in cases where the parents or children might be placed in a vulnerable position (Tompkins, 1995).
  
  
• [17] Responsibility seems to be defined strictly in terms of decision making.
  
  
• [18] For a description of the kinds of programs available in California's courts, where parenting education is closely tied to mediation, see Lehner (1992).
  
  
• [19] Studies of the cost-effectiveness of these programs relative to litigation have also been done. However, they were not researched. See references in ALRC (1997).
  
  
• [20] It is not known whether this group included custodial parents bringing complaints of breach of access against the access parent, in addition to access parent complaints.
  
  
• [21] The evaluation covered roughly 80 percent of the eligible program participants: 88 children and an unknown number of parents (Lee et al., 1995).
  
  
• [22] This second follow-up excluded cases involving violence or abuse.
  
  
• [23] Membership in North America's Supervised Visitation Network has risen from 70 in 1992 to 420 in September 1998 (Johnston & Strauss, 1999).
  
  
• [24] For example, by asking "How frequently does your ex-spouse refuse to allow the child to go out with you when you arrive to pick her or him up at the time specified in your access agreement?"
  
  
• [25] The Australian Family Law Council's study of access enforcement cases-the only comprehensive study the author found-included all applications filed over a two-year period across Australia.
  
  

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