custody, access child support in canadachild advocates or child legal representatives special courts...

FEDERAL•PROVINCIAL•TERRITORIAL

CONSULTATION

MARCH 2001

Custody,

Access and

Child Support

in Canada

Feedback Booklet


CONSULTATION

Please note:

The page numbers in this bookletcorrespond to the pages in theconsultation document where questionsappear.

To provide your feedback, align thecorresponding pages of both documentsand mark your answers in this booklet.

In some instances, there are two or morepages in this booklet that corresponds toa single page in the consultation paper.These extra pages are provided to allowmore space for your responses.

While some of the questions require thatyou check one or more boxes, othersprovide space for an open-endedresponse.

Once you have completed this booklet,please return it in the enclosed postage-paid envelope to:

IER Planning, Research andManagement Services7501 Keele Street, Suite 300Concord, OntarioL4K 9Z9

If you have questions about how tocomplete the feedback booklet,please call, tool-free,1-888-373-2222

Thank you.


10 Putting Children’s Interests First


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OPTION 1

Keep Current Legislative

Terminology

PART 1: PARENTING AFTER

SEPARATION ORDIVORCE

ROLES ANDRESPONSIBILITIES OFPARENTS

Looking at the Law

Which of the options described below do youthink would best help parents and judgesmake better decisions about parenting afterseparation or divorce?


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Putting Children’s Interests First 11

OPTION 2

Clarify the Current Legislative

Terminology: DefineCustody Broadly


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Putting Children’s Interests First12

OPTION 3

Clarify the Current Legislative

Terminology: DefineCustody Narrowly andIntroduce the New Termand Concept of Parental

Responsibility


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OPTION 4

Replace the Current Legislative

Terminology: Introducethe New Term andConcept of Parental

Responsibility


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OPTION 5

Replace the Current Legislative

Terminology: Introducethe New Term andConcept of Shared

Parenting

There are other possible ways the law mightguide parenting after separation or divorce.Please describe any other options that youthink would be effective.


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Looking at Services

Please check the six services from the listbelow that you think are most important forhelping families involved in separation anddivorce.

Information Services

Parent education ❒

Public and family faw information centres ❒

Self-help materials, kits or public ❒information documents on parenting roles

Information programs for children ❒

Support Services orApproaches

Counselling for parents: ❒

Legal aid ❒


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Child advocates or child legal ❒representatives

Special courts ❒

Supervised access and exchange ❒centres

Dispute ResolutionServices

Mediation ❒

Assessments ❒

Case managers and workers ❒

If you have had any personal experience withany of these services, please comment onhow useful the services were in encouragingparents to make their own parentingarrangement, and to focus on the needs andbest interests of their children.

Please also describe any other family lawservices that you think would be useful tohelp clarify parental roles and responsibilities,and to encourage parents’ positiveinvolvement and co-operation.


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BEST INTERESTS OFCHILDREN

Looking at the Law

Do you think that adding factors to the “bestinterests” section of the Divorce Act wouldhelp people make decisions about childrenthat are in the children’s best interests?

Yes ❒

No ❒

Why?


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If yes, please check the 10 factors from thelist below that you think are most important inhelping people make decisions that are in thebest interests of children.

Factors Related to the ChildrenThemselves

Children’s age and stage of development ❒

Children’s health ❒

Children’s special needs ❒

Children’s cultural, ethnic, and religious ❒or spiritual background

Children’s views and preferences ❒

Children’s personalities and abilities to ❒adjust to the new way their parents havearranged to care for them

Children’s current and future educational ❒requirements


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Factors Related to the Children’sRelationships with Others

Relationships with siblings ❒

Relationships with parents ❒

Relationships with other members of ❒the family

Relationships with any person involved ❒in the children’s care and upbringing

Relationships with the community ❒

Factors Related to Parenting of theChildren in the Past

History of the parenting of the children ❒

Past conduct of parents that is relevant ❒to their parenting abilities (including violence and abuse in intimate relationships)

Factors Related to the Future of theChildren

Ability of parents to meet ongoing and ❒developmental needs

Ability of parents and other involved ❒people to co-operate

Potential for future conflict ❒

Potential for future violence affecting ❒the child

Please describe any other key factors thatyou think would help people make decisionsthat are in the best interests of children.


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FAMILY VIOLENCE

Looking at the Law

There are several approaches governmentscould take to promote child-centred decision-making in situations of violence to ensure thesafety of children and others. Which of thefollowing approaches would best serve thatpurpose?

Make no change to the current law. ❒

Include a general statement in the law ❒that acknowledges that children who arevictims of violence or who witness violenceare negatively affected, and that familyviolence poses a serious safety concern forparents and children.

Make family violence a specific factor ❒that must be considered when looking atchildren’s best interests, and when makingparenting decisions.

Establish a rebuttable presumption of ❒limited parental contact and a limiteddecision-making role for a parent who hascommitted family violence.

Restrict the impact of the “maximum ❒contact” provision by moving the principlefrom section 16(10) of the Divorce Act intothe section that deals with the “best interestsof the child.”


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A combination of the above. Please ❒specify which of the approaches you wouldcombine.

Please describe any other legislativeapproaches that you think would be helpful toensure that family violence is taken intoaccount when parenting decisions are beingmade on separation or divorce.


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Looking at Services

Please check the six services from the listbelow that you think are most effective inensuring that the issue of family violence isaddressed when parenting decisions arebeing made after separation or divorce.

Information and Education Services

Education on family violence for parents ❒and children

Information for professionals ❒

Support Services

Counselling for children ❒

Counselling for parents ❒

Legal aid ❒


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Psychological assessments ❒

Supervised access and exchange centres ❒

Psychological services for parents and ❒children

Partner-assault response programs ❒

Other Services

Expedited court procedures ❒

If you have had any personal experience withany of these services, please comment onhow useful the services were in ensuring thatfamily violence is taken into account whenparenting decisions are being made.

Please describe any other family law servicesthat you think would be useful to ensure thatfamily violence is taken into account whenparenting decisions are being made.


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HIGH-CONFLICTRELATIONSHIPS

Looking at the Law

There are a number of approachesgovernments could take to promote child-centred decision-making in high-conflictcases. Which of the following approacheswould best do this?

The law should include no specific provision. ❒Changes to address high-conflict cases couldhave negative effects on the majority of parentswho co-operate. The focus should instead be onmaking changes to support parents who canreach co-operative solutions.

The law should say that, when judges are ❒concerned about ongoing high-conflictparenting disputes, they should be able to set out in the court order very specific anddetailed parenting arrangements to provide a regular routine and autonomy for eachparent’s time with the children.

The law should say that, when judges ❒are concerned about ongoing high-conflictparenting disputes, they should be able tospecify in the court order a dispute-resolutionmechanism that the parents are to use.


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The law should discourage arrangements ❒requiring co-operation and joint decision-making when there are concerns aboutongoing high-conflict parenting disputes.The law could say that these arrangementswould not be in children’s best interests.

The law should include a combination of ❒the above approaches. (Please specify whichof the approaches you would combine.)

Please describe any other legislativeapproaches that you think would be helpful toaddress high conflict situations.


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Looking at Services

Please check the six services from the listbelow that you think would be most effectivein helping parents avoid high levels of conflictand minimizing the harmful effects of conflicton children.

Information and EducationServices


Education and support groups for children ❒

Services to PromotePrompt Handling of High-Conflict Cases

Intake co-ordinators ❒

Specialized case management and ❒controlled court procedures for high-conflictcases, along with access to clinical expertiseto facilitate faster final decisions.


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Support Services forParents and Children

Legal aid ❒


Therapeutic access centres ❒

Specialized therapeutic mediation ❒

Initial and ongoing psychological ❒intervention and assessments

Programs to promote a self-managed ❒parenting plan

If you have had any personal experience withany of these services, please comment onhow useful the services were in reducingconflict and helping parents focus on theneeds of the children.

Please describe any other family law servicesthat you think would be useful to reduceconflict and help parents focus on the needsof the children.


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CHILDREN’SPERSPECTIVES

Looking at Services andApproaches

Please check the five services from the listbelow that you think would be most effectivein ensuring that children’s perspectives areheard and understood.

Psychological assessments ❒


Education and support groups for children ❒


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Workbooks, self-help kits and parenting ❒plan models

Guidelines or training for mediators ❒

Specific training for lawyers and others ❒who work with children

Legal or other representation for children ❒involved in disputes about parenting afterseparation or divorce.

Special courts ❒

Dispute-resolution processes such as ❒mediation

If you have had any personal experience withany of these services please comment onhow useful the services were in ensuring thatchildren’s perspectives were considered whendecisions were being made about the wayparents would care for them.

Please describe any other family law servicesthat you think would be useful to help ensurechildren’s perspectives are considered whenparenting decisions are being made.


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In what circumstances should legal or otherrepresentation be provided for children?


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MEETING ACCESSRESPONSIBILITIES

Looking at Services

Please check (any one or more) of thefollowing services that you think would bemost effective in encouraging parents to liveup to their parenting responsibilities.


Parenting skills courses ❒

Counselling ❒

Model access orders ❒

Public education ❒

Early identification, screening and ❒assessment of difficult cases

Assessment ❒


Legal aid ❒

Special courts ❒


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If you have had any personal experience withany of these services, please comment onhow useful the services were in ensuringparents lived up to their parentingresponsibilities.

Please describe any other family law servicesthat you think would be useful to help ensureparents fulfill their parenting responsibilities.


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Looking at the Law

Please check (any one or more) of thefollowing legislative approaches that you thinkwould be most effective in encouragingcompliance with access orders.

Require the non-complying parent to give ❒the other parent access to the children tomake up for the time he or she missed.

Require the non-complying parent to ❒deposit money or other valuables with thecourt, which the parent would forfeit if he orshe fails to allow access.

Require either parent and/or the children ❒to attend an educational seminar, parentingcourse, counselling or other similar type ofsession, and provide proof that they did.

Allow the judge to appoint a mediator to ❒help resolve the dispute.

Require the non-complying parent to ❒reimburse the other parent for any costs he or she has as a result of the denial of access.

Fine the non-complying parent an amount ❒for each day that access has been or is being denied, up to a maximum. If the parentdoes not pay, the judge may order that he orshe be sent to prison for up to a maximumtime.


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Imprison the non-complying parent ❒continuously or intermittently, up to amaximum time, for denying access.

Direct an enforcement officer to help a ❒parent obtain access to the children when the judge is satisfied, based on the non-complying parent’s history of denying accessor other grounds, that he or she will denyaccess.

Direct either or both parents to do ❒anything the judge considers appropriate in the circumstances to encourage them tocomply with the access order.

Please describe any other legislativeapproaches that you think would be useful toencourage parents to fulfill their parentingresponsibilities.


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PART 2: CHILD SUPPORT

Child Support in SharedCustody Situations

Questions

What factors do you think judges should lookat when deciding whether the shared custodyrule applies?

Judges should look only at the amount ❒of time each parent spends with the children.

Judges should look at several factors, ❒including time. Other factors could includewhether the child has two main homes, andhow parents share the children’s expensesand child-care responsibilities such as directcare and supervision, arrangements for healthcare, school, daycare, out-of-school care andextracurricular activities, supervision ofhomework, and purchase and maintenance ofclothing.

Judges should not look at the amount of ❒time each parent spends with the children.They should look only at factors related tohow the parents share responsibility for thechildren’s expenses and share child-careresponsibilities, such as those describedabove.

Other (please explain) ❒


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Why?


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If time continues to be a factor that judgeslook at when deciding whether the sharedcustody rule applies, what is the best way todefine it?

The children must spend at least ❒40 percent of their time with each parent.

The children must spend “substantially ❒equal” time with each parent.


Why?


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Determining the Child Support Amount

Which of the methods below for determiningthe child support amount do you think wouldwork the best for parents in shared custodysituations? You may choose more than one ofthese methods.

Some people believe that, when parents ❒share physical custody of their children equally,neither parent should pay child support.

Others argue that the child support ❒amount should be set to make the standard of living of both households the same.

Many people think that a formula would ❒be the best way to recognize the increasedcosts of a shared custody arrangement.

Others believe that judges should have ❒discretion, as they do now, when setting theamount of support, because a formula maynot apply fairly across the range of the manyparenting arrangements families with sharedcustody have.

Another option is for judges to look at ❒lists the parents prepare of their expensesrelated to the children. This is what judges did before the child support guidelines wereintroduced.

Why?


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Please describe any other method you thinkwould be effective and explain why it wouldwork.



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IMPACT OF ACCESS COSTS ONCHILD SUPPORT AMOUNTS

Should the child support guidelines bechanged to introduce a new way to take intoaccount the costs related to unusually highaccess time when determining child support?

Yes ❒

No ❒

Why?


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If yes, how should the child support amountbe calculated?

It should be left to the judge’s discretion. ❒

There should be a formula. The judge ❒should have no discretion.

There should be a formula to help the ❒judge, but he or she should still havediscretion whether or not to change the childsupport amount.


Why?



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Should the child support guidelines bechanged to introduce a new way to take intoaccount the costs related to unusually lowaccess time when determining child support?

Yes ❒

No ❒

Why?


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If yes, how should the child support amountbe calculated?

It should be left to the judge’s discretion ❒

There should be a formula. The judge ❒should have no discretion.

There should be a formula to help the ❒judge, but he or she should still havediscretion whether or not to change the childsupport amount.

Other (please explain). ❒

Why?


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Access Expenses

Should the child support guidelines provide away, other than the undue-hardship process,to calculate the child support amount whenthere are high access expenses, or shouldjudges be allowed to decide on an amountthey feel is appropriate?

The guidelines should provide a way to ❒calculate child support in these situations.

Please describe a method you think would beeffective and why it would work.


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Judges should be allowed to decide on ❒an an mount.

Why?


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CHILD SUPPORT FORCHILDREN AT OR OVERTHE AGE OF MAJORITY

Should the child support guidelines allowpaying parents to pay child support directly tochildren at or over than the age of majority?

Yes ❒

No ❒

Why?


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What factors should judges consider whendeciding whether the paying parent shouldpay support directly to children?


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Should the children be able to choosewhether to receive support directly from thepaying parent or not?

Yes ❒

No ❒

Why?


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Is it important for the receiving parent toagree that the paying parent will pay supportdirectly to the children?

Yes ❒

No ❒

Why?


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Disclosure of Information

Do you think the child support guidelinesshould be changed so that either thereceiving parent or the children at or over theage of majority must provide the payingparent with information about the status ofthe children (for example, about theirschooling, living arrangements oremployment situation) once a year? Thiswould apply in all cases when support is tobe paid for children at or over the age ofmajority, not just in those cases that includespecial expenses.

Yes ❒

No ❒

Why?


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Please describe any other option foraddressing this issue that you think would beeffective and explain why it would work.


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Do you think the child support guidelinesshould be changed so that either thereceiving parent or the children at or over theage of majority must provide the payingparent with information about the children’sfinances once a year? (This would apply in allcases when support is to be paid for childrenat or over the age of majority, not just in thosethat include special expenses.)

Yes ❒

No ❒

Why?


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Please describe any other option foraddressing this issue that you think would beeffective and explain why it would work.


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CHILD SUPPORTOBLIGATIONS OF ASPOUSE WHO STANDS INPLACE OF A PARENT

Should the child support guidelines bechanged to provide more direction to parentsand judges about whether a step-parentshould pay child support, and how much heor she should pay?

Yes ❒

No ❒

Why?


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There is a number of ways judges couldfigure out how much support a step-parentshould pay. Two ways are:

• The step-parent could pay the tableamount minus the amount the naturalparent is paying.

• Each paying parent, including the step-parent, could pay the table amount forhis or her income level.


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Do you think either of these approacheswould be effective?

Yes ❒

No ❒

Why?


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Please describe any other approach you thinkwould be effective and explain why it wouldwork.


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Putting Children’s Interests First

Additional Information

Please provide some additional informationabout yourself. Mark all that apply.

Are you a:

❑ Professional working in a field related tocustody, access and/or child support

Please specify:_____________________

❑ Parent receiving financial child support

❑ Parent providing financial child support

❑ Other, please specify: _______________

If you are a parent that has divorced orseparated, does your child reside with you:

❑ 50% of the time or more

❑ Less than 50% of the time with someform of access

❑ Less than 50% of the time with noaccess

❑ In a shared custody arrangement

❑ Other, please specify:

Age Group

❑ Under 25

❑ 26-35

❑ 36-45

❑ 46-55

❑ 56-65

❑ 66 or over


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Putting Children’s Interests First

Conclusion

Thank you for taking the time to provide yourfeedback on the issues raised in PuttingChildren’s Interests First: Custody, Accessand Child Support in Canada. Federal,provincial and territorial governments willconsider this information carefully whenreviewing laws and services in the areas ofcustody, access and child support.

Please return this booklet in the enclosedpostage-paid envelope to:

IER Planning, Research and ManagementServices7501 Keele Street, Suite 300Concord, OntarioL4K 9Z9

Input on custody, access and child supportissues is welcome any time, however wewould appreciate that you return yourfeedback booklet by June 15, 2001.

Please call 1-888-373-2222 if you havegeneral questions about this consultationprocess. Information is also available on theDepartment of Justice Canada’s web site athttp://www.canada.justice.gc.ca/en/ps/cca/index.html

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