The Child-centred Family Law Strategy,
Summative Evaluation

6.   ACHIEVEMENT OF OBJECTIVES


6. ACHIEVEMENT OF OBJECTIVES

The primary focus of the Summative Evaluation is on CCFLS outcomes; therefore, a number of evaluation questions included in the evaluation framework addressed the success of the Strategy in achieving its objectives. Unintended outcomes and areas that worked well or did not work well (i.e., lessons learned) were also explored. Due to the large number of evaluation questions developed to assess achievement of objectives associated with the five main components of the Strategy, the findings are organized into theme areas and the relevant questions for each theme are presented at the beginning of each subsection. Observations and conclusions are presented by theme area as well.

6.1. Needs and Best Interests of the Children

Four evaluation questions address outcomes specifically related to minimizing the potentially negative impact of separation and divorce on children and providing parents with the tools they need to reach parenting arrangements that are in the child's best interest. The four questions are:

The key findings associated with these evaluation questions follow.

Parenting education programs (PEPs) increase the parents' awareness and understanding of children's needs/issues during and after separation/divorce.

As highlighted in Chart 6-1, results of the client follow-up survey completed as part of the Summative Evaluation indicate that parents who participated in PEPs were more aware of their children's needs during separation/divorce (83.6%), had a better understanding of a child-focused approach to resolving issues (78.5%) and improved their awareness of how to make child-focused decisions (75.2%).

Chart 6-1: Parent Awareness and Understanding of Children’s Needs and a Child-focused ApproachChart 6-1: Parent Awareness and Understanding of Children’s Needs and a Child-focused Approach
Source: Client Follow-up Survey; n=298 (includes only respondents who participated in a PEP)

Furthermore, participants were satisfied with the PEPs they attended, found them to be useful and would recommend them to others. Satisfaction and usefulness ratings by participants are highlighted in Chart 6-2. These results are consistent with many other studies/surveys that have examined participant satisfaction with PEPs and information materials.[29]

Chart 6-2: Client Ratings of Parenting Education ProgramsChart 6-2: Client Ratings of Parenting Education Programs
Source: Client Follow-up Survey; n=298 (includes only those respondents who participated in a PEP)

It should be noted that, parenting education programs vary across the provinces/territories, even across regions within a province/territory in terms of type of services available and method delivery (frequency and provider). Given the high percentage of respondents who reported positively on the parenting education they received, it appears that satisfaction levels are high across the different jurisdictions.

Some parenting education reaches out to the children as well as the parents. For example, the Prince Edward Island Department of Community Services launched a pilot project, "Positive Parenting From Two Homes" , aimed at providing information sessions to parents who are separating, divorcing, and/or currently parenting from two homes. The project includes a program for parents as well as one specifically for children of separating or divorcing families. The evaluation of the pilot project revealed that the program has achieved its objectives.[30] There was a high level of parental satisfaction with the program and its facilitators and a better appreciation of the importance of parents being sensitive to children's needs. There was also improved awareness of support services and positive co-parenting practices, decreased negative parenting practices and conflict between parents, and increased parental willingness to use mediation rather than court. Study results found that the program had a positive influence on participants and their children and was seen as a valuable educational tool.

Parenting plans can be a useful tool for keeping parents focused on the children throughout the issue resolution process and afterwards.

A critical element of resolving issues around parental custody and access to their children is the parenting plan. The parenting plan reflects a shift in focus away from a more adversarial approach to issue resolution usually associated with the term "custody and access order" .

Results of the family justice service provider survey completed as part of the evaluation revealed that 78.3% of the responding service providers offer assistance to parents in the development of parenting plans. These respondents indicated that in 43.6% of all cases, parents develop parenting plans and that in 63.4% of cases, where a parenting plan is developed, it is implemented. These results align with those of the client exit survey completed by the Research Unit, where 44.3% of surveyed clients reported that they had developed a parenting plan as part of the family law services they received.

Client exit survey respondents who had developed a parenting plan generally felt that it helped them to stay focused on their children's needs/interests, particularly with regards to:

The majority (84%) of family justice service providers surveyed agreed or strongly agreed that, as a result of accessing family justice services, parents are more aware of how to make child-focused decisions around parenting arrangements.

There is evidence that the best interests of the child-criteria are being used by the courts and by parents.

The best interests of the child (BIC) principle has been a core principle in family law in Canada for some time. It evolved out of considerations regarding the welfare of and benefit to the child first explicitly expressed in the late 19th century. The actual adoption of the best interests principle was gradual, first introduced in Ontario in 1978 with the Family Law Reform Act. The Divorce Act explicitly adopted the principle in 1986 to be applied in custody and access cases.[31]

Prior to 2002, the principle remained undefined, leaving it up to the individual judge to decide what would be in the best interests of the child in a custody case. In 2002, a list of criteria was proposed that included several elements to be considered in determining a child's best interests, including:

Data from the court file review indicates that 83% of divorce cases reviewed included a reference to the BIC criteria in the context of federal and/or provincial law, as presented in Table 6-1.

Table 6-1: Cases Referencing BIC Criteria
Case Characteristics Number of Cases % of Total Cases
Cases that involved parenting plans or separation agreements 881 99.9%
Cases that included BIC criteria in the framework of provincial law 729 82.7%
Cases that included BIC criteria in the framework of federal law 730 82.8%

Source: Court case file review; n=886

The most frequently used BIC criteria noted in the file review were:

There is some evidence to suggest that awareness/use of BIC criteria in divorce cases has increased since they were introduced as a proposed amendment, despite the fact that they were never legislated. Prior to 2002, BIC criteria were mentioned in 92% of divorce cases sampled in the court file review as compared to 99% after 2002.[33] However, it is important to note that BIC issues were already widely used in the courts prior to their explicit proposal in Bill C-22. Evidence of increased awareness of the criteria was also found in the results of the Survey on the Practice of Family Law in Canada conducted in 2004 and 2006.[34] As can be seen in Chart 6-3, the largest increase in utilizing the BIC criteria was reported to be in comments or decisions made by the judiciary (+12.6%) and in arrangements made by the parents themselves (+5.0%).

Chart 6-3: Consistency of Parenting Arrangements with the Best Interests of the Child by Type of Resolution Process

chart
Source: Survey on the Practice of Family Law in Canada, 2006 and 2004.

Although Bill C-22 (December 12, 2002) did not pass, the introduction of the proposed BIC criteria as proposed legislation appears to have increased discussion on issues related to the principle. The CanLII Database lists a total of 3,650 cases related to the BIC principle, more than half of which (1,939 cases or 53%) were filed since December 2002.

6.1.1. Observations and Conclusions

Based on the evidence presented in the previous paragraphs, the following observations and conclusions can be made:

6.2. Direct Outcomes of the Strategy

A number of outcomes were identified in the CCFLS Logic Model. Six evaluation questions were developed to assess the extent to which outcomes were achieved under the Strategy, as follows:

There has been an expansion of family justice services offered by the provinces/territories over the course of the CCFLS.

Provincial/territorial reports indicate that, from 2003/2004 to 2006/2007, 71 family justice services were expanded, 32 new ones were introduced and 176 were maintained, as summarized in Table 6-4. Data for 2007/2008 was not complete at the time of the evaluation.

Table 6-4: Status of Family Justice Services in the Provinces/Territories
Status of FJS 2003/2004 2004/2005 2005/2006 2006/2007 Total
Expanded 19 15 15 22 71
Maintained 30 48 51 47 176
New 17 3 6 6 32
Total 66 66 72 75 279

Source: Provincial/territorial annual reports

Judges and provincial/territorial officials interviewed for the evaluation noted that the development of family justice services available in their location has expanded, in part as a result of federal funding; that, without federal funds, fewer family justice services would be available. Further, federal funds were also noted as having a leveraging effect through increasing provincial/territorial support for expansion of family justice services in some jurisdictions.

Data on the utilization of services by clients in the provinces/territories is incomplete. Efforts to improve the quality of usage data are currently underway at the Department of Justice and it is expected that a comprehensive analysis of utilization data will be possible in the near future. Currently, only data available for maintenance enforcement programs and mediation allows for a comparison of utilization (number of clients) and for only some provinces/territories (from 2003/2004 to 2005/2006). The following patterns were identified in the available data:[35]

Data collected through the Maintenance Enforcement Program (MEP) Survey 2005/2006, provides a slightly different picture of enforcement. The results of this study show that MEP caseloads increased from the previous year by between 1% and 4% in four of the seven reporting provinces: Prince Edward Island, Quebec, Ontario and the Yukon.[36] Note that not all provinces provided caseload statistics in the survey.

Family justice services are successful in helping parties resolve many of their issues without going to court.

Family justice services are effective in helping families resolve and narrow issues, and clients tend to be satisfied with the assistance they receive. Overall, it was noted that services like mediation and parent education are useful and important tools in assisting parents to recognize the needs of their children and minimize the negative impact of separation and divorce on the children. Mediation services can often lead to resolution without having to go before the court. For example, in Manitoba, of the 309 closed cases that proceeded through the Comprehensive Mediation Program since 2001 (as at June 30, 2007), 66.3% reached full agreement and 20.4% reached partial agreement. In only 13.3% of cases was there no agreement reached.[37] PEPs lead to parties being more child-focused and better informed about issues.

A benefit linked to the availability of family justice services noted by members of the judiciary was that parents coming before the court appear to have a more sophisticated understanding of the legal system and child-centred approaches to issue resolution than in the past. However, it was added that often this knowledge tends to be limited to familiarity with terminology rather than actual changes in behaviour. Regardless, it was felt that the improved knowledge/familiarity of the parties was related to the expanded family justice services available in many locations as well as to the increased availability of information, and that these services and information helped families navigate their way through the issue resolution process, regardless of the route taken.

An example of a unique approach to assisting families resolve issues or reduce conflict without going to court is the Access Facilitation Program piloted by the Saskatchewan Department of Justice. This program was designed to assist low-income families with issues or conflict related to parental access. All components of the program are designed to provide parents with guidelines for communication, techniques for reducing/resolving conflict, and assistance with resolution of access issues to assist with developing a plan that meets the specific needs and circumstances for each family that participates[38]. The outcomes/impacts of the pilot program have been positive. From the time the program became operational in June 2006 until February 28, 2007, a total of 45 people contacted the Dispute Resolution Office about the program (40 parents, 5 non-parents). Of these, one-half participated in the program from June 1, 2006 to February 28, 2007 with a successful completion rate (resolution of access issues) of 50%.

Certain issues go through the courts for resolution more frequently than others.

Family law professionals reported an overall decline in some issues in divorce cases heard by the courts from 2004 to 2006. As seen in Chart 6-5, property division declined by 9% and spousal support issues declined by 5.5%. Despite the decline in spousal support cases, this issue, along with custody, were identified by family law professionals as most likely to require a judicial decision in divorce cases.

Chart 6-5: Issues Most Likely to Require a Trial/Judicial Decision in Divorce Cases Chart 6-5: Issues Most Likely to Require a Trial/Judicial Decision in Divorce Cases
Source: Survey on the Practice of Family Law in Canada, 2006 (n=164) and 2004 (n=134)

The types of issues that return to court appear to vary somewhat from those heard initially. Summarized in Chart 6-6 is the reported frequency with which issues are heard in variation cases. Family law professionals most often cite parental relocation as a complex issue that is typically resolved through judicial decision.

Chart 6-6: Issues Most Likely to Require a Trial/Judicial Decision in Variation CasesChart 6-6: Issues Most Likely to Require a Trial/Judicial Decision in Variation Cases
Source: Survey on the Practice of Family Law in Canada, 2006 (n=164) and 2004 (n=134)

Not only has there been a narrowing of issues (i.e., fewer, better focused) heard in court, there is evidence to suggest that the time needed to resolve divorce cases has declined. Prior to the implementation of the Strategy, the average length of time between the petition for divorce and the day the divorce was granted for all cases was 384 days. In a comparison of cases prior to and after implementation of the Strategy in the two locations, the average time required decreased by 18.6%, from 345 days prior to 2002 to 281 days after 2002.

Family law professionals interviewed stressed that in high-conflict situations, court intervention is still needed and should be initiated as soon as possible in order to minimize negative impact on children.

6.2.1. Observations and Conclusions

Based on the preceding evidence, the following observations and conclusions are made:

6.3. Child Support and Support Enforcement

The following evaluation questions were designed to address the area of support and support enforcement:

The Federal Child Support Guidelines continue to be a success in creating a fair, accessible and transparent system of determination of child support amounts

The Federal Child Support Guidelines (FCSG) have been seen as a key success in the area of family law since their original implementation in 1997. Key informants from federal and provincial/territorial governments as well as family law professionals across Canada reported that the FCSG have created a fair and accessible system of child support calculation, thereby contributing to reduced conflict among parents on this issue.

Child support disputes no longer rank among the issues most likely to require a trial, indicating that the FCSG, as well as numerous materials related to the Guidelines including a Step-by-Step Booklet and information brochures or online material, access to the tables as well as an online calculator have served as tools to improve the understanding of child support by the Canadian public. The FCSG were reported to have created more consistency in determinations of child support, removing or significantly reducing the “guesswork” in establishing the amount of support to be paid, which subsequently helped reduce conflict. In doing so, the Guidelines have benefited an array of people, including litigants, the Bar, the judiciary, as well as families in general (especially children).

The majority of judges, lawyers and law professionals surveyed in 2004 and 2006 viewed the Guidelines as successful and an improvement over the pre-1997 system of determining child support. More than 8 in 10 lawyers/judges surveyed reported positive effects/outcomes associated with the FCSG.[39]

Chart 6-7: Judges, Lawyers and other Law Professionals Perceptions Regarding the Federal Child Support GuidelinesChart 6-7: Judges, Lawyers and other Law Professionals Perceptions Regarding the
Source: Survey on the Practice of Family Law in Canada, 2005-2006; n=117 (2004) and n=164 (2006).

Provinces/territories rely on the federal government for direction and assistance implementing their own support enforcement activities.

The primary purpose of Maintenance Enforcement Programs (MEPs) is to help support maintenance recipients collect their payments, particularly those who experience difficulty in securing (regular) payment. MEPs are in place in all provinces/territories; however, they are not uniform due to differing local needs, provincial/territorial laws and policies. These differences include client profile, enforcement powers in legislation, enforcement practices, the enrolment process, how payments are handled and registered, the responsibilities of clients, and how cases are closed.[40] As an example, with regard to enrolling cases with a MEP, about half of the provinces/territories; enroll cases automatically when a maintenance order is made. In all other provinces/territories (British Columbia, Saskatchewan, Alberta, Yukon and PEI), enrollment is optional unless the recipient is entitled to social assistance. Under the CCFJS, funding is provided to the provinces/territories to enhance their own enforcement activities.

The federal government provides assistance to the MEPs enforcement efforts through the coordination activities of the Support Enforcement Policy and Implementation Unit, two federal laws, the FOAEAA and the GAPDA, and the operations of the Family Law Assistance Services (FLAS) Unit. FLAS maintains a database for tracing individuals in default of a family provision, allows for the interception of federal funds (such as income tax refunds, etc.) and the denial/suspension of federally administered licenses, including passports. Federal employee salaries and pensions are subject to garnishment as a result of GAPDA.[41]

Provincial and federal representatives described the activities undertaken by the federal government in supporting provincial/territorial support enforcement efforts as to help coordinate activities through review of legislation, establishment of new laws or amendments to existing ones (e.g., FOAEAA and GAPDA) and to take the lead on international issues. Key informants noted that the role of the federal government in support enforcement matters does not need to be changed but should be expanded to include acting as a centre for information sharing on support enforcement activities, and as the Canadian Secretariat for the Hague Maintenance Convention – Central Authority.

For cases where the payor and recipient reside in different jurisdictions, the provinces and territories have established similar inter-jurisdictional support order laws that allow them to establish, vary, recognize and enforce orders from another province or territory or other countries where a reciprocity agreement has been established. In addition to such collaboration, some jurisdictions have developed their own Interjurisdictional Support Order (ISO) programs such as the Family Responsibility Office ISO Unit launched by the Ontario Ministry of Community and Social Services. A key objective of this project is to streamline the reciprocity process for claimants/applicants nationally and internationally in order to make the process of obtaining support orders, changing existing ones or enforcing orders faster and less demanding of court resources. The Ontario ISO Unit helps lessen court resource usage by eliminating one of the hearings from the support reciprocity process. Also, being that Ontario is a jurisdiction where the majority of its support order hearings under the ISO Act are written (as opposed to being heard in person), the process can be less adversarial as both parties involved with the support order present their cases in writing and the representation of information is the same for both parties.

Enforcement activities have been increasing over the course of the Strategy.

Statistics provided by the Family Law Assistance Services (FLAS) Unit indicate increased utilization of services by the provinces/territories in support enforcement. As illustrated in Chart 6-7, the number of tracing applications reported by FLAS has increased by 56.6% since 2003 and the number of license denial applications has increased by 16.8%. In addition, the number of active summons for intercepting federal funds has increased by 8.5% from 155,160 in 2003/2004 to 168,385 in 2005/2006. Data for more recent years were not available at the time of the evaluation.

Chart 6-8: Completed Applications for Tracing and Licence Denial ApplicationsChart 6-8: Completed Applications for Tracing and Licence Denial Applications
Source: Department of Justice. Progress Report to Treasure Board on Year Three of the CCFLS: 2005-2006.

While there is insufficient information available at the provincial/territorial level to link the increase in maintenance enforcement activities/services to an increase in monies collected,[42] the increased utilization of federal support enforcement services suggests that federal services and assistance in the area of enforcement are important for the provinces/territories.

The federal government has an important role in terms of developing enforcement policy.

Federal support enforcement activities and programs/services (nationally and internationally) are seen by the majority of provincial/territorial and federal officials interviewed as complementing, facilitating and/or coordinating efforts of the provinces/territories, other federal departments and international partners. Enforcement activities are supported through the provision of funding to the provinces/territories under the CCFLS, and through the operational funds allocated to the Department of Justice to undertake various activities related to improving the system of support enforcement in Canada and internationally. The federal government also supports provincial/territorial efforts through coordination activities, consultations and legislation (e.g., CRA and licencing departments).

Key informants from the Enforcement Unit reported that the federal support enforcement activities and programs/services complement the efforts of the provinces/territories as much of the federal government work originates at the request of the jurisdictions. As such, it was felt that there was no duplication or overlap of activities. Key informants also noted that the provinces/territories were increasingly looking to the federal government for supporting these types of activities and for removing barriers or creating efficiencies in federal legislation that would help them carry out their mandate. In other words, the provinces/territories have come to expect a leadership role on the part of the federal government in the area of enforcement.

A few barriers were identified by provincial/territorial officials with regard to implementing federal support enforcement activities in the provinces/territories. First is the issue of technological difficulties, which affect the compatibility of computer systems used federally and provincially. Provincial/territorial representatives also noted the lack of support from other federal departments (e.g., CRA and DND) in maintenance enforcement efforts, deadlines for input from the provinces/territories that are often too tight for bigger jurisdictions to solicit the required feedback internally and the lack of available resources overall. Provincial/territorial informants have expressed a need for additional federal support in these areas.

6.3.1. Observations and Conclusions

The following observations can be made, based on the evidence presented above: