Final Federal-Provincial-Territorial Report on Custody and Access and Child Support

F: Key Legislative Issues

While a number of concerns have been raised about current custody and access legislation, it is clear from the public consultations, from the report of the Special Joint Committee on Child Custody and Access, and from responses from organizations such as the Canadian Bar Association, that many Canadians do not view legislative change as the sole or even primary focus for family law reform.  It is generally recognized that legislative change without service enhancement or reform may have limited or no impact on the way families and children deal with family breakdown and reconstruction.[36]  The need for services and family-sensitive dispute resolution mechanisms to support families in dealing with separation issues in the best way for the children has been a dominant theme of the custody reform discussion.  The options for reform in services and dispute resolution processes are discussed in more detail in Section G of this report entitled "Service Options and Responses."

This section of the report addresses concerns about the current legislative framework for custody and access.  There are some key issues and these were put forward for discussion in the 2001 Putting Children's Interests First:  Custody, Access and Child Support in Canada First consultation document.  They are defining "best interests"; terminology; family violence; high-conflict relationships, addressing children's perspectives; and meeting custody and access responsibilities.

Defining "Best Interests"

Custody and access law and services in Canada are guided by the basic principle that all decisions must be made in the best interests of the child.  This is also the standard adopted in the United Nations Convention on the Rights of the Child.[37]

All Canadian statutes governing custody and access incorporate this overriding principle and direct the courts to consider the child's best interests in making custody and access decisions.[38] Some, but not all, provincial and territorial laws list specific factors that parents are to consider when determining the best interests of the child.  The Divorce Act does not contain such a list.  The Special Joint Committee on Child Custody and Access recommendeda list of criteria to consider in determining the best interests of the child.[39]

The consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada, contained a broad list of factors that could be included in a definition of best interests.[40]  The possible factors were characterized as falling within several broad themes:

Stakeholders were asked whether best interests criteria should be inserted in the Divorce Act and, if so, which criteria should be included.  While many supported a change to help ensure that best interests would be better understood, many participants questioned the overall impact such a change might have.  For them, a greater focus on public education and family services might achieve more concrete results in better educating parents, families and professionals on the meaning of best interests.  Although there was no consensus for adopting a defined list of criteria, there was some appreciation that a non-exclusive list did not have any perceived negative impact in those jurisdictions that had adopted criteria.[41]

The Family Law Committee has some concerns that an exhaustive list of criteria may create new areas of litigation based on the enumerated items.  However, a balanced, non-exhaustive list of criteria could provide guidance to parents, professionals and the courts on the kinds of factors to consider and should not in itself encourage new litigation.

Recommendation 4

It is recommended that custody legislation contain an explanatory non-exhaustive list of criteria for parents, judges and others involved in the decision-making process to consider when determining the custody arrangement that is in the best interests of the child or children.  The factors to be listed include:

Recommendation 5

It is recommended that any list of best interests criteria be child-centred to ensure that the child's best interests remain the foremost consideration in custody and access decision making.

Terminology

Use of the terms custody and access has been criticized.  It is argued that the terms are inappropriate to describe a parent-child relationship because they have connotations of the old concept of the child as the property of the parents, and because they encourage parents to focus on their rights rather than on their responsibilities.  From the critics' perspective, the terms are "emotionally loaded" and promote a culture of litigation that leaves one parent the "winner" and the other a "loser," irrespective of their parenting abilities. 

Advocates of abandoning the current terminology also often link their concerns about custody language to a concern that parenting responsibilities are not allocated appropriately under the current legal approach.  They feel that it results in one parent having most of the authority and responsibilities in relation to the child, to the virtual exclusion of the other parent from a meaningful parenting role.  Some link the current language and approach to an allegation that the current system is gender-biased.  These critics feel that what is required is not only new language but also a new concept of allocating parenting responsibilities after separation and divorce.

Because of similar concerns, some other common-law countries and American states have discarded the traditional custody and access language and adopted new terminology and often new substantive legal concepts.  For example, in Australia and the United Kingdom, the terms custody and access were replaced by the terms parental responsibility, residence and contact.  Washington State replaced custody and access with a regime based on parenting plans in which parenting functions, including decision-making authority, are allocated to each parent.[42]

Some civil law jurisdictions have also been reviewing the language they use to describe parenting arrangements.  In the 1970s, family law went through significant changes in European civil law countries, particularly in France.  The Council of Europe in 1984 recommended the use of the term parental responsibilities.  Although France continues to use the term parental authority, France has proposed a new approach for courts and others to assist parents in organizing the terms and conditions of their parental authority.[43]

The Special Joint Committee on Child Custody and Access recommended that the terms custody and access be replaced in our legislation with a new regime and terminology that the committee called shared parenting, where "in almost all cases both parents will continue, after separation and divorce, to exercise their pre-separation decision-making roles."[44]

On the other hand, supporters of retaining the current terminology maintain that the existing terminology is not necessarily negative.  Parents can define their roles appropriately by agreement and the courts have wide discretion to mould the parenting arrangement to suit each family by allocating the incidents of custody in a positive way.

The proponents of retaining the current custody language point out that it is important to be realistic about how much changing legislation can accomplish.[45]  Changing legal terminology cannot alter attitudes or force parties to abandon confrontation.  Indeed, the Australian experience demonstrates that attempts to clarify terminology may increase the potential for litigation and misunderstanding.  While there are those who argue for some form of presumption of joint parental responsibility or shared parenting,[46] the Australian experience suggests that jurisdictions be cautious in inserting new terminology given its potential to be misunderstood or to lead to negative results in terms of balancing the interests of children and their parents.

In 1987, Washington State changed to a parenting plan model to try to refocus parents on the needs of the child, but to date the change has had little impact on the reality of post-separation parenting.  The changes in the United Kingdom were intended to encourage parents to focus on co-operative arrangements, but the available research indicates that these changes have not succeeded in reducing litigation concerning custody and access.  On the contrary, there has been "a dramatic increase in litigation over contact orders."[47]

Some advocates of changing terminology have also argued that the current language lacks clarity in Canada because, they allege, it has different meanings in different jurisdictions.  They believe that there is a need to clarify the language so that it is understood and employed in the same way throughout Canada.  Those opposing changing the current terminology maintain it is clear and well understood by Canadians and the legal system and any confusion that may exist can be resolved through means other than changing the terminology.

The consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada, articulated five options for public discussion:

Respondents in the consultations voiced many of the arguments summarized above about the merits of changing the current terminology and concepts.  There was no public consensus on which of the options would be best.  Indeed, there were strong opposing views expressed on Option 1 (Keeping current terminology) and Option 5 (shared parenting).  There appeared to be support for some form of terminological change, or at least a public expectation that the legal system should encourage parents to focus their attention on the needs of the children and their responsibilities as parents rather than upon their rights as parents.[48]

The Family Law Committee was also unable to reach a consensus in favour of any one of the options.  The Committee agreed that it would not recommend Option 5 (shared parenting) for several reasons.  Parenting arrangements should be determined on the basis of the best interests of the child in the context of the particular circumstances of each child.  There should be no presumptions in law that one parenting arrangement is better than another.  The Special Joint Committee on Child Custody and Access also concluded that the legislation should not contain presumptions.  Its report, under the section entitled "No Presumptions," relates some of the debate on the issue and makes the following comment:

Presumptions in favour of joint custody or the primary caregiver have been adopted in a number of jurisdictions, but in some cases legislatures have subsequently withdrawn them after finding that they were not having the intended desirable effect.  Presumptions that any one form of parenting arrangement is going to be in the best interests of all children could obscure the significant differences between families.[49]

Shared parenting has come to imply a presumptive starting point of equal or near equal parental rights and responsibilities, including decision making.  Imposing a regime of shared decision making on parents who are not able to deal with each other without conflict can engender more conflict to the detriment of the children.  Moreover, while it is recognized that both parents can play a positive role after separation in the child's development, the parental role should not be emphasized at the expense of a clear determination of what is in the child's best interests.  It is also a term that seems to engender significant debate regarding its meaning and how it should apply.  The ambiguity of the term itself may promote conflict.

The Family Law Committee considered and weighed various factors in its assessment of the other four options.

The Family Law Committee's review of legislation across the country indicates that the argument for legislative change based on a need for clarity is not compelling.  Although the statutes vary, as discussed earlier in this report, all statutes use custody to mean, at the least, the everyday care and control of the child or, to put it another way, residence and the day-to-day decision making that goes along with it as a practical matter.  The language is workable for enforcement purposes and the legislative concept is flexible enough to permit any kind of parenting arrangement that suits a particular family.

However, a term like "parental responsibility" might not have the negative baggage that some ascribe to the current terminology.  Requiring or permitting the use of this seemingly more neutral language might encourage parents to take a more consensual approach.  Research conducted during this project suggested that terminology change might help to promote a less adversarial approach.[50]  Building into the legislation a menu of alternative parenting arrangements or parenting functions may provide guidance to parents, lawyers, other professionals, and the courts to help them develop parenting arrangements that are more sensitive to the child's needs with regards to each of the child's parents.

On the other hand, many people do not believe that the terms custody or access have negative implications or, if they do, legislative change is not necessarily required to change the language actually used to describe parenting arrangements where the parents do not want to use that language.  For some years now, parents, lawyers and judges across the country have been moving away from the language of custody and access in agreements and court orders, and they have been able to do so because the current legislative language and scheme permits this flexibility.[51]  For example, in Manitoba, the typical custody order does not take the form of sole custody with access.  More often, the order states that the parents have joint custody (meaning decision making about important matters is shared), and one parent has "primary physical care and control" and the other parent has "physical care and control as the parties may agree."[52] Furthermore, to the extent that there may be any ambiguity in the existing terminology, parents, lawyers and judges are free to fashion agreements and orders that suit the particular family.

The Family Law Committee's review of the current federal, provincial and territorial legislation has not revealed any gender bias in the legislation.  It is recognized that, while the law may be gender neutral, in a majority of cases the mother is a sole custodian or, in a joint custody arrangement, she is the primary caregiver with the father having the role of an access parent.[53] There is no reason to believe that this gender differentiation is a result of systemic bias in the Canadian courts.  It is more likely that in the vast majority of cases the parties have themselves agreed on this arrangement.  The social realities or parents' perceptions regarding parenting roles may be responsible.

Fundamentally, the Family Law Committee recognizes that any reform should be aimed at clarifying parenting responsibilities and helping parents to focus on the needs of the children.  Any terminology needs to be sufficiently flexible to respond to the range of needs and circumstances of children and their parents.  It is the workability of the arrangements rather than the terminology that matters most.[54]

In general, the Committee believes that options 2, 3 or 4 could meet these principles for reform, depending on the specific statutory language and the supports available to promote implementation and understanding of the concepts.  There was a range of support for each of these models.[55]  All of these options could clarify the decision-making responsibilities of parents and unbundle the decision-making requirements to make it clear that parental responsibilities can be shared by, or divided between, the parents in the way that meets their children's best interests.

However, any change has the potential for negative and positive effects.  The potential impact should be analyzed further, including the time required to implement these changes, so as not to disrupt family relationships unnecessarily.  If the terms custody and access are replaced in family law legislation, they may still be used in other legislation dealing with child protection or guardianship.  The impact of such a change on provincial and territorial legislation needs to be considered in this context as well.  In addition, even if the terms custody and access are replaced in relation to parents' rights and responsibilities, the term access may need to be retained to deal with third party claims, such as those of grandparents or other extended family.

Any change in the current terminology would also have to accommodate the definition of custody in The Hague Convention on the Civil Aspects of International Child Abduction so that in cases falling under the Convention, one could ascertain whether an incident of custody within the meaning of the Convention had been breached.  This would be necessary to ensure that requests for the return of abducted Canadian children are not jeopardized.

Indeed, the Family Law Committee's concerns regarding the impact of any terminology change include the need to consider what services will be required to help families adjust to any new regime and what information will need to be provided to families, legal professionals and others involved in the family justice system about any legislative change.  Changes to legislation, particularly to terminology, require time to adjust to a new way of thinking.  Parents need information about their obligations and everyone in the family justice system needs to understand the intention and effect of any legislative change.  As well, the concepts of custody and access are well established in society beyond the family justice sphere.  For example, police officers, day care workers, school officials, and health care workers refer to the concepts.  Many different groups would require information on how new terminology would apply to their work.

Experience in other jurisdictions confirms that an ongoing program of education and information is required to properly implement any legislative reform in the area of family law.[56]  Interest groups and professionals interpret changes in family laws in different ways.  The challenge is how to address the fact that there are many different messages being heard from the same words used in legislation.  There are subtleties in language and slight changes can mean differences in the message.

The Family Law Pathways Advisory Group was established by the Australian Attorney-General and Minister for Family and Community Services to find ways to improve the pathways for families through the family law system.  That group recommended an ongoing information strategy be developed to reach people at the time they need to hear the message.  Such a strategy would be aimed at helping people understand their obligations upon marriage breakdown and their continuing responsibilities to parent their children.

Consultations with parents and professionals indicate that problems in the family justice system have more to do with the lack of resources for families than with legislation.[57]  In fact, increased availability of family justice services and education programs would likely have a greater and more positive impact in changing the circumstances families experience on separation and divorce than any legislative change.[58]

If there is legislative change, it will require time and funding to implement the legislation and to assist with the appropriate service changes.

Recommendation 6

It is recommended that legislation not establish any presumptive model of parenting after separation, nor contain any language that suggests a presumptive model of parenting.  The fundamental and primary principle of determining parenting arrangements must continue to be the best interests of the child.

Recommendation 7

It is recommended that, where jurisdictions determine that their legislative terminology should be changed or clarified, any amendments to legislation should be child-centred, focus on parents' responsibilities to understand and meet their children's needs, and promote the positive and safe involvement of both parents.  It is agreed that Options 2, 3 and 4 could meet these criteria and that Option 5 does not.

Family Violence

Another major issue of concern for the public and the Family Law Committee is whether the current family law system ensures that family violence issues are appropriately addressed in making determinations on what is in the best interests of the child.  Provincial and territorial legislation varies in the degree to which it deals with this issue.  The Divorce Act has been criticized for lack of clarity on how the courts are to treat allegations or findings of family violence, and for how it balances these issues with rules relating to maximum contact.  The current regime has been criticized as placing over-emphasis on contact, sometimes at the risk of the child.  A child's needs must be considered in the overall context of that child's life and circumstances.  Making one criterion more important than another seems contrary to a child-centred approach.[59]

The consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada, raised these issues.  Although there were a variety of responses, it would seem that a significant number of respondents recognize that family violence can have serious consequences for children, as well as for their caregivers, and that legislation may require greater clarity to ensure that the safety of children is not compromised.  It is also clear that participants in the consultation recognized the need for a strong network of services to support legislative measures.[60]

The options for reform range from including a general statement of principle in the legislation to indicate that children deserve to develop in a healthy environment free from emotional, physical and psychological harm, to including specific presumptions against contact where family violence has been shown to be a factor.  Many are concerned, however, that any change in legislative standards can have negative results in terms of either deterring parties from raising family violence concerns or in creating incentives to raise family violence when the circumstances do not warrant it.

A related issue is the concern that has been expressed that some parents make false allegations of child abuse against the other parent in order to gain an advantage in custody litigation.  Research has shown that there are differing perceptions regarding this issue and that the actual level of false allegations seems to be relatively low.[61]  However, the lack of trust and lack of adequate communication between parties may lead to misunderstandings or misinterpretations leading to increased conflict and more distrust.  Again, the difficulty lies in achieving the right balance to ensure that the child's safety is not compromised and that the child's contact with both parents is not limited without sufficient reason.

The Family Law Committee acknowledges the serious negative impact that family violence can have on children's sense of security, self-esteem, and future orientation to relationships.  This negative effect exists whether the children are the direct or indirect victims of the violence.  However, each case must still be considered based on the past, current and future potential for violence or negative implications of violence on relationships.  We recognize that violence can occur in isolated instances or may be part of an ongoing pattern of conduct.  The implications of the particular risks or negative implications of family violence need to be carefully considered in each case where this factor is raised.  The pre-eminent purpose of keeping children safe and supporting their well-being needs to be recognized throughout decision making.  This means that parents and courts should ensure that their decisions do not create situations that place the child at risk.

Recommendation 8

It is recommended that, with a view to ensuring that no court orders are made which may result in prejudice to the safety of children and place them at risk,

Recommendation 9

It is recommended that governments work to strengthen supports to families exposed to family violence, including crisis counselling programs and counselling programs for children exposed to family violence.

High-Conflict Relationships

At present, neither the Divorce Act nor provincial and territorial legislation contain provisions specifically addressing high-conflict relationships.  It has been suggested that legislative measures are needed to deal specifically with those cases where a parent or child alleges they are at risk as a result of high conflict.  There are differing views on the "streaming" of violent or high-conflict cases.[62]  One view holds that the fact that the case is before the court means that it warrants judicial attention, because there may be undisclosed issues of power imbalance in the family.  Another view holds that to force all high-conflict cases, such as those involving family violence, into the court stream, and away from other dispute resolution techniques is paternalistic and denies the autonomy of the victim.[63]

The research seems to show that only about ten to fifteen percent of all couples exhibit a high level of legal and interpersonal conflict.[64]  Families may cycle in and out of conflict depending on factors such as financial stress, new relationships, and problems with childcare and development.  Research shows that the level and intensity of parental conflict is a very important factor in children's adjustment after separation or divorce.  Parents caught in the cycle of conflict may not recognize the harm being generated.  Parents who co-operate after they separate increase the chances that their children will have close relationships with both of them and will cope successfully with the separation or divorce.  Parental conflict and lack of co-operation have a negative effect on children's adjustment after separation and divorce.  When parents' interpersonal struggles take centre stage, children's needs are not given adequate attention.  High-conflict parents may have difficulty seeing their children's needs as separate from their own and this interferes with their ability to learn how to effectively co-parent or communicate.[65]

The research suggests that "there is no generally accepted definition of what constitutes a high-conflict divorce, although there is acknowledgement that these situations differ from the normal amount of upset associated with marital separation and divorce."[66]  Most separating couples go through a period of transition that includes emotional upset regarding the end of their relationship.  However, the reason some separating and separated couples become "locked into long, bitter and expensive battles over custody, access and support, while the majority of separating and divorcing families are able to avoid such protracted disputes, remains unclear."[67]

Research indicates that high-conflict situations may cause serious problems for children and parents.  Children experience fear, sadness, powerlessness, guilt and a sense of divided loyalty.  Parents experience similar emotions and report that a range of problems occur in high-conflict situations, including physical threats and assaults, access denial, restrictions of access to extended family members, withholding of support payments, and refusing access to information for the other parent.  Mental health workers and lawyers also describe high-conflict situations as being problematic, involving anger and powerlessness, domestic violence and physical, emotional and verbal abuse.  Lawyers and judges often describe high-conflict cases in terms of increased court time and repeated litigation.[68]

Separation and divorce cases marked by high conflict seem to share some characteristics.  These include the emotional difficulties experienced by the parents and children in dealing with the high levels of conflict; related problems that arise out of the parents' conflict such as the use of false allegations of abuse or access denial; and the simple reality that high-conflict parents often litigate more than do other less conflicted couples, resulting in their using more court time and resources as well as their own time and resources on settling their dispute.  In these kinds of situations, it is difficult to believe that the best interests of the children are being served.[69]

While the public consultations raised this issue and invited comments on an appropriate legislative or service response, it appears clear that-family violence aside-it would be difficult to sufficiently define high-conflict cases in a way that would lend itself to a legislative response or criteria.  The solution to high-conflict cases lies in supporting parents to focus on their children's needs, improving their communication and conflict resolution skills, and support services or approaches to better stream and screen high-conflict cases in order to intervene earlier and more effectively.[70]  For example, Manitoba's parent education program, For the Sake of the Children, runs separate seminars for parents experiencing higher conflict.  These seminars focus on safe, low-to-no-contact ways to parent after separation.  These issues will be addressed further in Section G of this report, "Service Options and Responses."

Recommendation 10

It is recommended that high-conflict cases be addressed through a mixture of services and procedural supports to minimize the negative impact of conflict on children and families.

Addressing Children's Perspectives

To determine the best interests of the children, decision makers need to hear the children's perspectives on the way their parents propose to care for them.  Canada is party to the United Nations Convention on the Rights of the Child.  That Convention says:

State parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the view of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

There are varying opinions about when and how to best hear children's views.[71]  The desirability of giving the child a voice in the decision-making process must be balanced against the need to shield the child from parental conflict and prevent the child from becoming embroiled in it.  Children should not be put in the position of having to choose one parent over another.

While the Divorce Act has no provisions expressly mandating the court to consider the children's wishes, most provincial and territorial legislation directs the court to consider the views and preferences of the child, usually as part of a best interests test.[72]  The law in Canada generally recognizes that the weight to be given to the children's wishes increases with the age and maturity of the child.

In some situations, courts have appointed a representative for the child during a proceeding that will determine the child's custody or access.  In Ontario, the Office of the Children's Lawyer represents the child if the case meets the criteria defined by that office.  In Manitoba, until recently, Legal Aid funded appointments of counsel by the court to act as amicus curiae.  The role of the amicus was to advise the court as to the child's best interests; the amicus would relay the child's expressed wishes, but would not take instructions from the child.  Currently, Manitoba's Family Conciliation Office is operating a pilot project, called the Brief Consultation Service, whereby the child's voice may be heard.  A counsellor is available to the court to meet with parents and see the child within a short time.  The counsellor then provides a brief verbal or written report to the court, which may include information respecting the wishes or concerns of the child.

Expert reports, such as those provided by the Manitoba service, are the most common way the child's views are expressed to the court.  The expert, such as a social worker, interviews the child and communicates to the court, often as part of a custody and access assessment report, the views the child has expressed.  In rare circumstances, the judge may interview children.[73]

Research conducted during the Family Law Committee project indicates that currently children generally have little opportunity to participate in custody and access proceedings that affect them.  The research looks at a range of possible responses from a more direct role with counsel or advocates to development of service supports for children.[74]

Youth participating in the consultations Putting Children's Interests First were enthusiastic about being asked their views.  There were six consistent themes brought out during the workshops:  parental conflict; parental abandonment or lack of interest in the child; voice of the child; availability, responsiveness and accountability of professionals; child support; and concern about the future.  The vast majority of youth wanted services and divorce legislation to provide a way for their voice to be heard when decisions were made, but there was clear concern that they not be placed in the middle of the dispute.[75]

The Special Joint Committee on Child Custody and Access specifically recognized the need for children to be heard when parenting decisions affecting them are being made, through a professional or other representative, including legal counsel where required.[76]

As the premise for the work of the Family Law Committee is to take a child-centred approach to custody and access reform, addressing the needs of children to have their perspectives heard in formal or informal forums and by appropriate processes is recognized as a matter of priority.

Recommendation 11

It is recommended that each jurisdiction review its legislation, procedures and services to ensure:

Meeting Custody and Access Responsibilities

Introduction

Parents may have rights of custody or access by operation of law, or pursuant to a written agreement or a court order.  Third parties, such as grandparents and others, may also have rights of custody or access pursuant to an order or agreement.  When a right of custody or access is denied, there is a wide range of legal remedies and options available to enforce the right in question.[77]  Some options are only available if a court order exists; others only apply to children of certain ages or in inter-jurisdictional cases.  Options range from informal negotiations between the parties and/or their legal counsel, to mediation, to invoking the civil justice system and, in some cases, the laying of criminal charges.  The test applied by courts across Canada in determining parenting arrangements for children and access arrangements respecting children is the best interests of the child.  Depending on the mechanism used to enforce a custody or access right, the test applied by the court may be very different or involve the best interests of children in the general, rather than the specific, sense (e.g., as is the case in proceedings pursuant to The Hague Convention on the Civil Aspects of International Child Abduction).

Although a considerable amount of attention is paid to situations where one parent alleges that the other parent is wrongfully denying access as ordered by a court, there are also situations where parents fail to exercise access as provided in orders.  Difficulties may also arise respecting enforcement of a right of custody, whether or not the situation amounts to a parental child abduction.[78]

Access enforcement is not an easy problem to resolve as allegations range from serious denial and abduction, to frustration with denial of contact or non-exercise of access at expected times.  The actual level and nature of access problems are not clear.  Identifying effective solutions is also difficult, given the wide range of circumstances in each case, and given that decisions must be made in the best interests of the child.  Rather than focussing on punitive responses, strategies may need to focus on preventing conflict or misunderstandings that lead to access denial or non-exercise of access.[79]

Although the Family Law Committee has identified a number of areas where improvements could be made to child custody and access enforcement legislation, and to legislation implementing The Hague Convention on the Civil Aspects of International Child Abduction, more work is needed to explore further options to address these difficult cases, to analyze work currently underway internationally, including a recently released British report,[80] and to provide Deputy Ministers with refined recommendations.

Recommendation 12

It is recommended that, recognizing the breadth and complexity of the issues involved in child custody and access enforcement and parental child abduction cases, further detailed work be undertaken.

Recognizing work on specific issues and services is still needed, the following is an explanation of the current remedies.[81]

Non-Judicial Remedies

In less complex or entrenched cases, parents may benefit from trying to mediate or negotiate resolutions to access difficulties.  For example, a dispute over the timing of access, or rescheduling of access visits, may be appropriately dealt with through mediation or negotiation through the parties' counsel.  Parent information programs offered early in the process (ideally prior to any court orders or mediated agreements being reached) may be of assistance to many families in forestalling future custody and access enforcement issues.  These programs can greatly assist parents in understanding the emotional needs of their children at various stages of development and how those needs change over time and may require increased flexibility with regard to access and parenting arrangements.

Civil Contempt

Where a right of custody or access is contained in an order of the court, the option of civil contempt may be available (inferior courts do not have inherent jurisdiction to find an individual in contempt of an order unless contempt occurs in court proper.)  The rules of court may provide penalties for individuals found in contempt.  Civil child custody and access enforcement legislation may also contain a range of enforcement provisions.

In contempt applications, a number of principles are of critical importance:

Courts have held that a contempt proceeding should be a last resort where there are other means to ensure compliance.  Once an individual has been found in contempt of an access order, among the orders that have been pronounced are periods of incarceration, suspended sentences, fines, stays of ongoing litigation, compensatory access, supervised access and suspension of maintenance or other payments pending resumption of access.

For contempt to be a viable option, the access order must be clear on its face.  This generally means that the order must be one for specified periods of access, with prescribed days and times.  An order providing for "reasonable access" is not generally one that could be used to seek a finding of civil contempt.  The party denied access would be more likely to ask that the court specify periods of access.

Civil Custody and Access Enforcement Legislation

Some provincial and territorial jurisdictions across Canada have child custody enforcement legislation providing a variety of means to ensure compliance with custody or access orders.  This legislation can be invoked where an order is being breached in the province in question (e.g. if a child is being abducted to or within, or is in the process of being abducted from the province in question or access is denied in that province).

Child custody and access enforcement legislation applies to court orders of custody or access granted by courts of the province in question, as well as the courts or tribunals outside the province or territory with jurisdiction to grant custody orders.  Generally speaking, these acts do not enable persons with custody or access rights pursuant to written agreements, or by operation of law, to invoke their provisions.  In most jurisdictions, child custody enforcement legislation can be invoked without the existence of formal reciprocal arrangements with the other jurisdiction, unlike reciprocal enforcement of maintenance orders legislation.

These acts limit the court's ability to substitute its own custody and access order to situations where a child does not have a significant connection to the jurisdiction in which the original order was granted, providing the child does have such a connection to the province in question, all of the parties are now habitually resident in the province or the child would suffer serious harm if returned to the custodial parent named in the order (or if the access parent was allowed contact).

Enforcement orders under these acts are binding in the province in which they are granted, which means that in a situation where a child is abducted from one province to another, and then to a third, proceedings may need to be taken in more than one jurisdiction.

These acts contain a wide range of remedies that can be used to enforce an access or custody order being breached within the province in question.  Remedies may include non-molestation orders, the posting of a bond or the signing of a recognizance, authorization for a person to apprehend and deliver a child to another person, transfer of property or maintenance payments to a trustee and denial of passports or other documents.  Some remedies may only apply if the order contains a non-removal clause.

In some jurisdictions child custody enforcement legislation has been used to implement The Hague Convention on the Civil Aspects of International Child Abduction.

The Hague Convention on the Civil Aspects of International Child Abduction

The Hague Convention on the Civil Aspects of International Child Abduction was concluded in October of 1980.  Canada was one of the original four signatory states.  The Convention has been implemented in all Canadian provinces and territories.  Each province and territory has a Central Authority charged with certain obligations pursuant to the terms of the Convention.  There is also a federal Central Authority.

The Hague Convention governs international child abduction situations, not those of an inter-provincial/territorial nature.  The Convention deals with issues of jurisdiction and provides, with limited exceptions, that the appropriate courts to deal with issues relating to custody are those of the child's habitual residence before his or her removal.  Like provincial child custody and access enforcement legislation, the Hague Convention sets forth a framework for determining the most appropriate forum to resolve custody disputes and in that sense is concerned with the best interests of children.  The Convention is based on the principle that the best interests of children are met by protecting them from abduction and by securing respect for custody rights.  It does not deal with the merits of competing claims and the best interests of children in the context of resolving those claims.

The Hague Convention applies to children under the age of 16 years.  It is applicable to situations where a right of custody by operation of law or pursuant to a court order has been breached.  The Supreme Court of Canada has considered the Hague Convention in two cases.[82]  The Court indicated that removal of a child in contravention of a non-removal clause in an interim order constituted "wrongful removal" within the meaning of the Convention, but also indicated that this would not necessarily be so in the case of a final custody order.

Although Article 21 of the Hague Convention allows an application to be made to a Central Authority for assistance in establishing or enforcing a right of access, the Convention is not clear as to the nature of the international obligation in this regard.  Accordingly, many countries, including most Canadian Central Authorities, take the view that they will not become actively involved in access establishment and enforcement cases, although Legal Aid assistance may be available for these purposes in some jurisdictions.  The Fourth Special Commission revisiting the operation of the Convention in 2001 in The Hague noted that access issues were of critical importance.  It has been suggested that a special meeting be held in The Hague to further discuss this important area.

Criminal Sanctions

In January 1983, specific provisions in the Criminal Code of Canada came into effect making parental child abduction a criminal offence.  Sections 282 and 283 of the Criminal Code prohibit parental child abductions in situations where there is a custody order made by a Canadian court and there is no such custody order, respectively.  Section 283 therefore applies to situations where parents continue to have joint custody of their child by operation of law, where there is a written agreement, where there is a foreign custody order, or where the abducting parent did not believe or know there was a valid custody order.  Ministers Responsible for Justice first approved Parental Child Abduction Charging Guidelines in 1989.  Updated Revised Parental Child Abduction Guidelines were approved by Ministers at their October 1998 meeting.  At the time that the charging guidelines were first developed, the Family Law Committee recommended that police officers should have direct access to designated counsel with experience in the area of family law within their jurisdiction and, in particular, telephone access to these counsel outside of regular working hours.

Not every case in which a custody or access order is breached amounts to parental child abduction.  Depending on the legislation or statute pursuant to which the custody order or access order was granted, there may be other charges that can be considered.

Non-exercise of Access

Non-exercise of access can be as damaging to a child as denial of access.  Several provinces have legislation under which a custodial parent may seek financial compensation in the event that the other parent fails to exercise access as contemplated in the original order.[83]

Jurisdictional Provisions in Custody and Access Legislation

Some but not all provincial or territorial legislation clearly sets forth jurisdictional rules for the determination of custody and access cases based on the habitual residence of the child, with certain consent and safety-based exceptions.  An example of a consent exception would be where the parents agree on a court of competent jurisdiction, even if it is not in the province where the child habitually resides.  An example of a safety-based exception would be where the court has concerns that failing to exercise jurisdiction would place the child at risk.  Other provinces and territories do not have such provisions, but do have custody enforcement legislation that contains similar tests respecting recognition of an ex juris order (and that court's ability to assume jurisdiction and substitute its own custody or access order).

The Hague Convention on the Civil Aspects of International Child Abduction also deals with issues of jurisdiction and provides, with limited exceptions, that the appropriate courts to deal with issues relating to custody are those of the child's habitual residence before his or her removal.

The Divorce Act provides that the courts of a province or territory where either spouse or former spouse is ordinarily resident have jurisdiction to deal with custody issues.  The court may transfer a custody action to a court in another jurisdiction where "the child…in respect of whom the order is sought is most substantially connected with another province,"[84] but it is not required to do so.  This jurisdictional approach differs significantly from provincial custody and custody enforcement legislation and from Canada's international obligations under the Hague Convention.  It has also resulted in the custody of children habitually resident in one province being determined in the courts of another province with which they have a more tenuous or recent connection.

Recommendation 13

It is recommended that the Divorce Act and provincial and territorial legislation provide that the courts of the province or territory of the child's habitual residence have jurisdiction to determine custody and access, subject to exceptions based on consent or safety considerations, and taking into consideration, as applicable: