Facilitating Access: Federal/Provincial/Territorial Family Justice Recommendations

In Canada, family law is an area of shared jurisdiction. The federal, provincial and territorial (FPT) governments work together to improve the family justice system across the country. To this end, they recently collaborated in examining a number of issues related to custody and access, including compliance with access provisions in agreements and court orders.

As part of this process, the FPT governments looked at some of the latest findings in the difficult area of access compliance, and at models and approaches that have been used successfully in Canada and elsewhere to deal with access difficulties. A broad view was taken of what encompasses access difficulties, including denial of access, non-exercise of access, and access frustration. This led to recommendations in the following four areas:

1. Recommendations for programs, services and process issues
2. Recommendations for legal remedies
3. Recommendations for compliance with access between jurisdictions
4. Recommendations in the area of research

Recommendations in these four areas reflect a belief in a diversified approach to the problem of access compliance. As the Family Law Committee noted in its 2002 Report entitled Putting Children First:

Custody and access enforcement issues involve a complex web of physical, psychological and emotional needs for children and parents. Parents need to be supported and encouraged to understand that the children’s needs come first and that as parents they have responsibilities to ensure the children’s emotional, psychological and financial well-being, to the extent possible.

Programs, services and process issues

In the view of the FPT governments, a court-based, adversarial approach to resolving access problems does little to reduce conflict and improve parental communication and cooperation, which are key factors in making workable, respected parenting arrangements. For this reason, the family justice system needs to provide parents with ongoing tools, information and non-adversarial approaches to arrive at practical and flexible solutions. At the same time, it should be recognized that certain cases can only be resolved through the adversarial court-based system.

The FPT recommendations for programs, services and process issues are as follows:

Early intervention approaches:

Recommendation 1:

Jurisdictions consider how to help parents identify issues, including access issues, at an early stage and guide them to appropriate services.

Recommendation 2:

Jurisdictions continue to review the curriculum of parenting education programs to determine whether it would be appropriate to further emphasize the importance of contact with both parents.

Recommendation 3:

Jurisdictions review public legal education and information (PLEI) materials and outreach to the community to determine whether it would be appropriate to supplement these efforts in order to emphasize the importance of contact with both parents.

Recommendation 4:

Jurisdictions offer mandatory parent education as resources permit.

Recommendation 5:

Jurisdictions offer information programs or resources for children, as resources permit.

Recommendation 6:

Jurisdictions develop materials for family justice professionals to support them in providing appropriate assistance to families facing access difficulties, as resources permit.

Recommendation 7:

Jurisdictions consider supporting the development of checklists for parents that can be used in developing appropriate parenting arrangements, including access.

Service responses:

Recommendation 8:

As appropriate, jurisdictions consider creating a duty or expanding the duty of lawyers through legislation to advise clients about both the advisability of resolving matters through dispute resolution and available family justice services that are known to the lawyer.

Recommendation 9:

Jurisdictions consider whether it would be helpful to develop standard clauses/wording for orders relating to parenting arrangements.

Recommendation 10:

Jurisdictions continue to promote participation in mediation, including through referrals to mediation and mediation information sessions.

Recommendation 11:

Jurisdictions continue to monitor the development of collaborative family law and inform parents of its existence, including through parent education.

Recommendation 12:

Jurisdictions consider how the voice of the child can be taken into account in dispute resolution.

Recommendation 13:

Jurisdictions continue to monitor the less adversarial trial processes introduced in Australia and New Zealand.

Recommendation 14:

Provinces and territories introduce pilot projects to address access problems and/or support community organizations to provide such programs as resources permit and where appropriate in their jurisdiction. Such pilot projects would assist in determining cost-effective and successful approaches to addressing compliance issues.

Legal remedies

Existing legal remedies with respect to access compliance in Canada and elsewhere were also examined. These remedies include, for example, contempt-of-court penalties, court-ordered arrests, requirements to deliver the child, fines and/or imprisonment. The view remains that the court-based adversarial approach should only be used when necessary. However, it is also recognized that the family justice system must offer an appropriate balance between service and program responses and legal responses. From a practical perspective, the fact that legal remedies exist and can be ordered by the court creates an incentive for a parent to comply with an order or agreement. Legal remedies for access enforcement can also send a symbolic and educative message. Some parents may need to be reminded that access denial and non-exercise of access are serious problems for which there are legal solutions. Recommendations related to legal remedies are as follows:

Recommendation 15:

Jurisdictions consider how to inform the legal community about the existence of provincial enforcement legislation, including where relevant, its applicability to divorce cases.

Recommendation 16:

The Federal Government consider whether it would be appropriate to amend the Family Orders and Agreements Enforcement Assistance Act, to allow for the garnishment of federal moneys to satisfy an order for the reimbursement of expenses related to access denial or the non-exercise of access.

Recommendation 17:

Jurisdictions consider, in light of the remedies available in Canadian as well as foreign jurisdictions, the need for legislative amendments in their jurisdiction in order to explicitly provide for and/or expand the civil remedies available for access problems.

Compliance with access between jurisdictions

The third area examined was approaches to access difficulties when more than one jurisdiction is involved. For example, several jurisdictions have adopted the United States’ Uniform Child Custody Jurisdiction and Enforcement Act in whole or in part. This Act allows an individual in whose favour an extra-provincial order has been made to apply to have the order recognized and made enforceable in their own jurisdiction.

Another important approach being examined is the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children to which Canada is considering becoming a party. The implications of the 1996 Hague approach are being analyzed and ways in which this model could be used for inter-provincial issues are being considered. The recommendation on access compliance between jurisdictions is as follows:

Recommendation 18:

Issues related to the inter-jurisdictional recognition and enforcement of access orders and agreements be examined through FPT work on the 1996 Hague Convention

Research

To address the problem of access compliance, further research is needed to fully understand all the dimensions of this complex problem. To this end, the FPT governments are working together to identify research that is necessary to support policy and program developments in the area of parental contact after separation and divorce and to propose specific research projects to meet research gaps. For example, research is needed to better understand the scope of the problem, the causes of access denial and non-exercise of access, the remedies used to address the problem and effectiveness of those remedies. A recommendation for future research is as follows:

Recommendation 19:

Jurisdictions continue to monitor, and where appropriate, conduct research related to access compliance, and in particular evaluate program, service and legislative responses in this area.