Child Access in Canada: Legal Approaches and Program Supports

APPENDIX 2:  MAJOR STUDIES:  ACCESS DENIAL AND FAILURE TO EXERCISE ACCESS (Cont'd)

ONTARIO

Ontario law has no provisions for access enforcement beyond the fines, imprisonment and other minor penalties of civil contempt.  Bill 124, which would have made changes to the existing system to specifically address access disputes, has not been proclaimed and no new legislation has been announced.  The civil contempt penalties apply to both custodial parents who deny access and to access parents who breach access by failing to return the child on time.  Officials believe very few cases of breach or denial of access enter the courts as contempt proceedings.  Most litigated access disputes involve requests to vary access orders by one party or the other because parents cannot agree to changes to the existing order.  These may progress to contempt if unresolved.

The province's court system is in the process of unifying, and Unified Family Courts operate across about half the province.  Parents involved in access disputes whose cases are being case managed at Unified Family Courts must attend three conferences with their appointed judge at different stages of the process.  Case management also operates at courts in most large urban centres.  All parents filing new applications at Ontario's Superior Court in Toronto must attend a parent education and information session and a case conference with a dispute resolution officer before proceeding, unless the matter is urgent.  Otherwise, there are no mandatory programs or services for parents litigating access disputes.

Voluntary information advice and referrals, parent education programs and mediation are provided to parents involved in access disputes and to separating and divorcing parents at all Unified Family Court locations (mediation may involve sliding-scale fees).  Parenting information and mediation are also available at the Superior Court and the largest provincial court location in downtown Toronto.  Judges may also refer parties in access enforcement cases into any of these services where they are available.

Parents may be denied access when the child is known to be at serious risk of abuse, but evaluation of pilot supervised access centres in the early 1990s indicated that some access parents are granted supervised access when abuse or violence to the child may be present (See discussion in Section 3).  Spousal violence is a consideration in determining the child's best interests.

Ontario is in the process of expanding its supervised access facilities to all court catchment areas.  Bill 124 would have treated access denial and breach of access and failure to exercise access symmetrically, and would have introduced specific provisions for reimbursement, supervised access and appointment of mediators as penalties for access denial and failure to exercise access.

Detail Description

Principles governing access awards

Children's Law Reform Act (R.S.O. 1990)

Best interests of the child.  Consideration in determining best interests:

  1. The love, affection and emotional ties between the child and each person entitled to or claiming custody or access to the child, other members of the child's family who reside with the child, and persons involved in the care and upbringing of the child.
  2. The views and preferences of the child, when such views and preferences can reasonable be ascertained.
  3. The length of time the child has lived in a stable home environment.
  4. The ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessities of life and any special needs of the child.
  5. Any plans proposed for the care and upbringing of the child.
  6. The permanence and stability of the family unit with which it is proposed that the child shall live.
  7. The relationship by blood or through an adoption order between the child and each person who is party to the application.

Provisions for dealing with cases involving child abuse and violence and spousal abuse and violence
  1. Violence to the child is a consideration in determining the child's best interests.
  2. Parent's conduct is not relevant to determination unless relevant to his or her ability to act as a parent to the child.

Role of the child's wishes in access disputes
  1. Children's wishes are a consideration in determining the child's best interests.
  2. Judge or parties in an access dispute may request the Office of the Children's Lawyer to represent the child's interests in court.  The Office screens prospective cases with a comprehensive intake package.  The Office is involved in a reasonable number of the access disputes heard in court.

Detail Description

Penalties for unwarranted denial of access

Children's Law Reform Act (R.S.O. 1990)

Family Law Rules:  Rule 31

Civil contempt

  • Imprisonment (up to 90 days).
  • Any fine (up to $5,000).
  • Penalty to the other party.
  • Anything that the court decides is appropriate.
  • Not to do what the court forbids.
  • Pay court costs to the injured party.
  • Obey any other order.
  • Access to information.

Penalties for unwarranted breach of access or failure to exercise access

As above for breach of access (when access parent fails to return the child on time).

Mandatory supports for separating or divorcing parents

1. Parent education.  Three-hour sessions required before filing application to Toronto's Superior Court.

Voluntary supports for separating or divorcing parents
  1. Information Services.  Family Law Information Centres at Unified Family Court sites in the province provide legal information and advice, make referrals to services including mediation, help parties negotiate the court system, and prepare applications.
  2. Self-help divorce kits allow divorcing parents to represent themselves in divorce and custody and access proceedings.  Available at courts and government offices.
  3. Parent Education.  Three-hour public information sessions provided at all Unified Family Court sites in the province, focussed on post-separation parenting.  Also available at the Superior Court and Provincial Court in downtown Toronto.
  4. Mediation.  Court may order mediation, but only when parties agree.  Mediation services available at all Unified Family Court sites and Toronto's largest Provincial Court on a sliding-fee scale.  Parties may go or be sent to mediation elsewhere in the province where affordable and available.

Mandatory supports for parents in access disputes
  1. Parent education.  Three-hour sessions required before filing application to Toronto's Superior Court.
  2. Case management at all Unified Family Courts and in Toronto's Superior Court and lower Court of Justice:  involves mandatory case conference, settlement conference and trial management conference with the appointed judge at stages during the process. 

Legal aid and other legal supports for parties in access disputes, including children
  1. Legal Aid available to parties.  However access disputes that do not threaten the parent's relationship with the child (e.g. applications to vary the orders) are a low priority for aid.
  2. Children's lawyer appointments are without charge.

Voluntary supports to parties in access disputes
  1. Supervised access where available (see below).
  2. Information services.  At Unified Family Courts and in Toronto.
  3. Parent education.  At Unified Family Courts and in Toronto.
  4. Mediation.  At Unified Family Courts and Toronto's largest Provincial Courts.

Mandatory supports for enforcement of access

1. Supervised access where available (90 percent of supervised access is court-ordered).  The province is currently finalizing plans to provide supervised access (purchase of service) in all court catchment areas.  Supervised access is also available in Toronto.  (See Chapter 3, Section 3.3 for evaluation of the original pilot program)  In 1998-99 11,290 families used supervised access centres, with 19,752 children served, 15,637 supervised visits taking place, and 11,500 or so child exchanges.  Fees are based on a sliding scale.

QUEBEC

Quebec has no provisions for enforcing access beyond the fines and imprisonment and related minor penalties of civil contempt.  Its access enforcement penalties, therefore, apply both to custodial parents who deny access and to access parents who breach access by failing to return the child as specified.  It is not known how frequently cases are brought to court, how many applications are upheld or what penalties are levied.

Parents bringing access enforcement applications to court are required to attend an information session on the mediation process before proceeding to a hearing.  Quebec relies heavily on mediation to resolve cases that enter the courts, and disputing parents may choose mediation following the information session or proceed with the application.  Mediation is provided in provincially run youth centres, and is free for three to six sessions.  Judges may also order the parties into mediation.

Superior Court judges may order parents into supervised access, and often do so on the recommendation of an expert psychosocial evaluation service, or parents' request.  Social workers from the Youth Protection Branch or a judge from the lower court Chambre de la Jeunesse may also refer parents into province-wide supervised access services.

Voluntary parenting education programs are also available to Montréal parents using mediation and family evaluation services there.  Separating and divorcing parents must also attend the information session as a prerequisite to contesting custody or access arrangements in the court.  They may also choose to use mediation services and, be ordered into mediation by the court.  Montréal parents using the mediation or evaluation services at youth centres may enrol in the parenting education program.

Parents may be denied access when the child is known to be at serious risk of abuse.

Detail Description

Principles governing access awards

Civil Code of Quebec (S.Q. 1991)

Children's best interests

  • Moral, intellectual emotional and material needs of the child.
  • Environment and other aspects of his or her situation.
  • Child's wishes when age and power of discernment permit it.

Provisions for dealing with cases involving child abuse and violence and spousal abuse and violence

Parents may be denied access when the child is known to be at serious risk of abuse.

Role of the child's wishes in deciding access disputes
  1. Child's wishes are a consideration in determining best interests.
  2. Child has the opportunity to be heard in all cases affecting his or her interests when age and power of discernment permit it.
  3. Child's Lawyers may represent children's interests in court, when the court orders it.
  4. The Human and Young Persons' Rights Commission has a general duty to protect and promote children's rights, and may take the legal action necessary to correct violations of children's rights.

Penalties for unwarranted access denial

Contempt:  fines of up to $5,000 and imprisonment of up to one year.

Penalties for unwarranted breach of access or failure to exercise access

As above for breach of access.

Mandatory supports for separating or divorcing parents
  1. Information session on the mediation process required before court hearing of any custody, access or child support application (free).  Parties choose mediation or court hearing at the end of session.
  2. Court may order mediation for parties (see below).

Voluntary supports for separating or divorcing parents
  1. Mediation available at parties' request (free for up to six sessions).
  2. Parenting education program.  Available in Montréal only for parents using the mediation or psychosocial evaluation services of the youth centres.

Mandatory supports for parties in access disputes, including children
  1. Information session on the mediation process required before court hearing of any custody, access or child support application (free).  The information session may take the form of a group session, a meeting between a mediator and the couple, or a group session with one spouse not present.  Parties choose mediation or court hearing at the end of session.
  2. Judges may order the parties to mediation during hearings.  Services provided at youth centres.  Either three or six sessions will be paid for by the family mediation service of the Superior Court.

Legal Aid and other legal supports for parties in access disputes, including children

1. Legal Aid available to eligible parties.

Detail Description

Voluntary supports for parties in access disputes, including children
  1. Mediation available at parties' request (free up to six sessions).  Parties may end mediation at any point, or suspend it to consult with counsel.  The sessions are confidential, although the mediator may file a report with the court.
  2. Parenting education program.  Available in Montréal only, and for parents using the mediation or psychosocial evaluation services of the youth centres.
  3. Judges may order psychosocial evaluation in disputes that reach the court, but only at parties' consent.  The evaluation service is designed to provide judges with impartial recommendations and information in disputed cases.
  4. Supervised access available around the province.  Provincially funded and provided by community agencies and associations.  Parents may be referred to supervised access by Superior or lower court, at parents' request, or on the recommendation of social services.  Some centres charge fees.

Mandatory supports for enforcement for access

1. Supervised access available around the province.

NEW BRUNSWICK

New Brunswick law has no provisions for access enforcement beyond the fines and imprisonment penalties of civil contempt.  These penalties apply to custodial parents who deny access without warrant, as well as access parents who breach the terms of access.  Officials believe very few cases of breach or denial of access reach the courts.  Most litigated access disputes involve requests to vary access orders by one party or the other because parents disagree on visiting terms or custody.  New Brunswick family courts hear about 200 applications a year to vary court orders.

There are no mandatory programs or services for parents making access enforcement applications.  Information services and voluntary mediation are available to these parents at each point in the legal process.  There are no mandatory programs or services for separating and divorcing parents either, except in spousal abuse cases, in which parties are referred to the provincial Family Solicitor who can provide a broad range of legal services.  Information and voluntary mediation services are available to separating and divorcing couples.  Mediators see some 3,600 clients a year, and it is estimated that half of mediators' time is spent explaining the order to parents and trying to help them live with its provisions.

The province is planning to introduce more services soon, and is looking most closely at parent education programs to which the court can order disputants, and to supervised access programs to support access enforcement.  The province has rejected mandatory mediation.  The province will be establishing a quasi-judicial function to enforce access.

While parents are denied access when the child is known by the Children's Aid Society to be at serious risk of abuse, access appears to be being granted in cases of spousal abuse on a regular basis.  The legal system provides no support to custodial mothers who seek to vary their access orders on the grounds of spousal violence.  In effect, then, if an abused custodial mother can successfully deny access to the access father, he is unlikely to be able to have his access enforced.  However, if the violent father is able to enforce access, the abused mother's only recourse is to seek to vary the order.

Child protection laws link spousal violence with child abuse in assessing risk to the child, so spousal violence can figure in determinations when child abuse and neglect are present.

Detail Description

Principles governing access awards

Family Services Act (S.N.B. 1996)

Children's best interests

  • Mental emotional and physical health of child and need for care or both.
  • Views and preferences of the child when they can be ascertained.
  • Effect on the child of any disruption of his or her sense of continuity.
  • Love, affection and ties existing between the child and each person to whom custody is entrusted (and others).
  • Merits of any plan by the Minister under which he could be caring for the child rather than returning the child with the parents, or allowing child to remain with them.
  • Need to provide a secure environment that enables child to become a useful, productive member of society.
  • Child's cultural and religious heritage.

Provisions for dealing with cases involving child abuse and violence and spousal abuse and violence
  1. Parents may be denied access in cases where the child is known to be at serious risk of abuse.
  2. Spousal violence may be a consideration in deciding access cases, but in practice access appears to be granted to violent spouses.
  3. Judges may award access, or enforce access, under supervision, where services exist.
  4. Spousal violence can figure in determinations of the child's best interest when child abuse is present.

Role of the child's wishes in access disputes

Unknown.

Penalties for unwarranted denial of access

Family Services Act (S.N.B. 1980)
  1. Contempt:  imprisonment for up to 90 days and fines of up to $1,000.
  2. Apprehension orders when abduction is feared.

Penalties for unwarranted breach of access or failure to exercise access

As above for breach of access.

Mandatory supports for separating or divorcing parents

1. In spousal abuse cases, parties are referred to the Family Solicitor, who provides a broad range of legal services.  Provided to 1,358 clients in 1996-97.

Detail Description

Voluntary supports for separating or divorcing parents
  1. Information services.  Provided by social workers, who may also assess Legal Aid eligibility and refer parents to other services.  5,000 clients in 1996-97.  An evaluation has been completed.
  2. Mediation services.  For cases not involving spousal abuse.

Mandatory supports for parties in access disputes, including children

None.

Legal Aid and other legal supports for parties in access disputes, including children

Unknown.

Voluntary supports for parents in access disputes
  1. Information services.
  2. Mediation services.

Mandatory supports for enforcement of access

Few to none.

NOVA SCOTIA

Nova Scotia enforces access through fines and imprisonment.  The Family Maintenance Act also allows a court to make any additional order (such as an order of contempt) it deems necessary to ensure that a court order, such as an order for access, is followed.  These kinds of civil contempt orders could apply to custodial parents who deny access without warrant and to access parents who breach or fail to exercise access orders.

Parents making applications for access enforcement at a Unified Family Court (the province's courts are currently unifying) are required to meet with a conciliation officer who can stream them into other services, such as parenting education and mediation, or provide conciliation for cases requiring minimal intervention.  All other services are voluntary prior to the hearing, although judges may order parents into one of these programs as part of the judgement of the case.

Voluntary parenting education programs are available in parts of the province for parents making access enforcement applications and for separating and divorcing parents.  Voluntary mediation services for both parents in access disputes and separating and divorcing parents are available in Halifax and Sydney, where there are Unified Family Courts.

The province is not planning to introduce access enforcement legislation.  It is planning to expand counselling services within the new Unified Court system, and possibly make supervised access far more widely available than it is now.  Officials believe the conciliation officers are able to "weed out" about half the cases that come into the court by providing information and preliminary support and conciliation services.

Parents may be denied access when the child is known to be at serious risk of abuse.  New child protection laws link spousal violence with child abuse in assessing risk to the child, so that spousal violence figures in determinations of the child's best interests when child abuse is present.

Detail Description

Principles governing access awards

Family Maintenance Act (R.S.N.S. 1989)

Children's best interests

  • Welfare of the child is the paramount consideration.

Provisions for dealing with cases involving child abuse and violence and spousal abuse and violence
  1. Judges may award access, or enforce access, under supervision, where services exist.
  2. Parents may be denied access when the child is known to be at serious risk of abuse.
  3. Spousal violence can figure in determinations of the child's best interest when child abuse is present.

Role of the child's wishes in access disputes

Family Maintenance Act (R.S.N.S. 1989)

1. Section 20 provides that a court may order that a child be brought before the court in custody and access applications.

Penalties for unwarranted denial of access

Family Maintenance Act (R.S.N.S. 1989)
  1. Civil contempt:  fines and imprisonment.
  2. Other sanctions for flagrant violations of the courts' orders.

Penalties for unwarranted breach of access or failure to exercise access

As above for breach of specified access.

Mandatory supports for separating or divorcing parents

1. Conciliation and resolution.  Parents proposing to make court applications must present themselves to conciliation officers at Superior courts in Halifax and Sydney.  These officers provide information and counselling, and help parties draw up a consent order when feasible.  The conciliation officer can refer parties to other services.  Evaluation recently completed.

Voluntary supports for separating or divorcing parents
  1. Parent education.  There are programs in parts of the province.
  2. Mediation (Halifax-Dartmouth, Cape Breton) to help resolve custody and access issues.
  3. Intake services at Supreme Court offices in Halifax and Sydney provide conciliation services for cases involving minimal intervention.

Mandatory supports for parties in custody and access disputes, including children

1. Conciliation and resolution.  Parents proposing to make court applications must present themselves to conciliation officers at Superior Courts in Halifax and Sydney.  These officers provide information and counselling, and help parties draw up a consent order when feasible.  The conciliation officer can refer parties to other services.  Evaluation recently completed.

Detail Description

Legal Aid and other legal supports for parties in custody/access disputes, including children

1. Available to all parties and children (in appropriate circumstances), depending on eligibility.

Non-mandatory supports for parties in custody/access disputes, including children
  1. Mediation.  Provided by the province in Halifax-Dartmouth and Cape Breton to help resolve custody and access issues.
  2. Conflict management services are available around the province, provided by private organizations on a user-pay or means-tested basis.

Mandatory supports for enforcement of access

Supervised access is provided by some community services in the province, though availability is not widespread.

PRINCE EDWARD ISLAND

Prince Edward Island enforces access primarily through the fines, imprisonment and other penalties of civil contempt, but its Family Law Act does specifically provide for enforcing access through restraining orders and other reporting penalties.  It is not known whether the family law legislation applies to access parents who breach access or fail to exercise specific agreements, as well as custodial parents who deny access.  The civil contempt penalties would apply both to custodial parents who deny access and to access parents who breach access by failing to return the child.

There are no mandatory programs or services for parents making access enforcement applications.  Voluntary mediation is free and available to parents making access enforcement applications and to separating and divorcing parents.  A voluntary parenting education pilot project is under way in Charlottetown and Summerside for separating and divorcing parents, and preliminary responses are positive.  There are no mandatory programs or services for separating and divorcing parents.

The province is hoping to expand its prevention programs, notably its parenting pilot program.  Judges would be able to order parents into parenting programs at separation and divorce hearings and in access enforcement disputes.

There are supervised access services across the province, publicly funded and privately delivered.

Parents may be denied access when the child is known to be at serious risk of abuse.  Child protection laws link spousal abuse with child abuse in assessing risk to the child, so that spousal violence figures in determining the child's best interests when child abuse is present.

Detail Description

Principles governing access awards

Custody Jurisdiction and Enforcement Act (R.S.P.E.I. 1988)

Children's best interests

  • The court shall consider the child's views and preferences when possible.

Provisions for dealing with cases involving child abuse and violence and spousal abuse and violence
  1. Parents may be denied access in cases where the child is known to be at serious risk of abuse.
  2. Judges may award access, or enforce access, under supervision, where services exist.
  3. Spousal violence can figure in determinations of the child's best interest where child abuse is present.

Role of the child's wishes in access disputes

1. The court shall consider the child's views and preferences when possible in determinations of the child's best interests.

Penalties for unwarranted denial of access

Custody Jurisdiction and Enforcement Act (R.S.P.E.I. 1988)
  1. Restraining order.
  2. Recognizance, requirement to report to the court and/or deliver documents as the court sees fit, and other ancillary powers.

Penalties for unwarranted breach of access or failure to exercise access

None.

Mandatory supports for separating or divorcing parents

None.

Voluntary supports for separating or divorcing parents
  1. Parent education.  A pilot project currently operates in Charlottetown and Summerside offering two three-hour sessions focussing parents on meeting the child's best interests.  Targeted to those in need of immediate intervention and care.  An evaluation of the project is almost complete, and anecdotal response was positive.  The province is planning to extend this service.
  2. Mediation.  Freely and widely available from social workers, though less accessible in rural areas.

Mandatory supports for parties in access disputes, including children

None.

Legal Aid and other legal supports for parties in access disputes, including children

Provides access to services only when applicant or applicant's children are at risk of violence and abuse.  81 files opened in 1997-98.

Voluntary supports for parties in access disputes, including children

Mediation.  Free and widely available at the request of the parties.

Mandatory supports to enforcement of access

Supervised access available in parts of the province by provincially funded community agencies.  Judges may order supervised access where available.

NEWFOUNDLAND

Newfoundland enforces access with a range of penalties from civil contempt to compensatory access.  Access enforcement applies to custodial parents who deny access without warrant as well as to access parents who breach access orders, although a limited number of penalties apply to the latter.  It is not known how frequently the penalties are used, or how many access enforcement cases come before the courts.

There are no mandatory programs or supports for parents bringing access enforcement applications, although judges may order couples to mediation or supervised access, where available, as penalties for breaches of access, including access denial.  Voluntary mediation is available to couples engaged in disputes at the outset of their journey through the court.

Separating and divorcing parents entering the court are required to proceed through an intake service that assesses whether their case is amenable to mediation, and assigns them a case manager.  Voluntary mediation services are available to these parents also.  The province has also launched a voluntary pilot parenting education program and a supportive education program for children of separating and divorcing parents.

Parents may be denied access when the child is known to be at risk of serious abuse.  Child protection laws link spousal abuse to child abuse in determining risk to the child, so that spousal violence figures in determination of the child's best interests when child abuse is present.

Detail Description

Principles governing access awards

Children's Law Act (R.S.N. 1990)

Children's best interests

  • Love, affection and emotional ties between the child and each person claiming custody or access, other members of the child's family living with the child, others caring for the child.
  • The views of the child when ascertainable.
  • Length of time the child has been in the environment.
  • Ability and willingness of each person applying for custody to provide guidance and education and necessaries of life and for special needs of child.
  • Ability of person seeking custody or access to be a parent to the child.
  • Plans proposed for the care and upbringing of the child.
  • Permanence and stability of the family unit where it is proposed the child will live.
  • Relationship by blood or through adoption order between child and applying parties.

Provisions for dealing with cases involving child abuse and violence and spousal abuse and violence
  1. Parents may be denied access when the child is known to be at serious risk of abuse 
  2. Child protection laws link spousal abuse to child abuse in determining risk to the child, so that spousal violence figures in determination of the child's best interests when child abuse is present.

Role of the child's wishes in access disputes
  1. No legal representation for children in courts unless ordered by Supreme Court judge.
  2. No child advocate services.

Penalties for unwarranted access denial

Children's Law Act (R.S.N. 1990)
  1. Contempt:  fines and imprisonment.
  2. Apprehension order.
  3. Supervised access.
  4. Order to prevent removal of the child from the jurisdiction.
  5. Compensatory access.
  6. Reimbursement for expenses incurred as a result of denial.
  7. Appointment of mediator.

Penalties for unwarranted breach of access or failure to exercise access
  1. Reimbursement of expenses incurred as a result of failure to exercise access.
  2. Appointment of a mediator.

Mandatory supports for separating or divorcing parents
  1. Intake service.  Assesses whether case is amenable to mediation.  May refer parties to other agencies.
  2. Case management.  All applications referred to case management (does not apply to interim applications for custody or access).

Non-mandatory supports for separating or divorcing parents
  1. Parents are Forever.  Pilot project of parent education program.  150 served annually.
  2. Mediation services.  Mediators meet with individual parents to explain process and confirm their willingness to proceed.  300 to 400 cases handled annually.  Supportive Education group for children.  Provides safe place for children of separated parents to discuss issues.  8-week sessions semi-annually.

Detail Description

Mandatory supports for parties in access disputes, including children

None.

Legal Aid and other legal supports for parties in access disputes, including children

Intake service assesses applicants eligibility for Legal Aid.

Non-mandatory supports for parties in access disputes, including children

1. Mediation services.  Mediators meet with individual parents to explain process and confirm their willingness to proceed.  300 to 400 cases handled annually.

Mandatory supports for enforcement of access

1. Supervised access.  Provided only when court ordered, by court, often at court.  10 to 20 cases annually.

NUNAVUT

Nunavut provides for the enforcement of access orders through several penalties.  Penalties apply to custodial parents who deny access without warrant, as well as to access parents who breach access terms by failing to return the child or failing to show up as agreed.  Penalties apply more or less symmetrically to both kinds of violations.  However, court officials say applications for access enforcement are rare, as are family court applications in general (8 to 10 per year).

There are no mandatory programs or services prior to the court hearing for parents bringing access enforcement applications.  Once the case reaches court, the judge can appoint a separate counsel to represent the children's interests when they think it necessary, and the child's wishes are a consideration in determining the child's best interests.

Judges can order mediation or ongoing access under supervision as penalties for an access violation, but are unlikely to do so.  The court does not provide, nor subsidize, parents' use of private mediation and supervision services, and they are not widely available.  Some mediation, counselling and access supervision services have been initiated by social service workers, or are provided by individuals in some communities, but they are largely parallel to and distinct from the legal system.

There are no mandatory programs or services for divorcing or separating parents, and few voluntary services.  The courts provide basic information to separating or divorcing parents, but do not offer mediation, counselling or other services.  The territory is considering establishing more voluntary parenting education and counselling services, mainly by building on what services already exist in communities rather than through a territory-wide program.

Parents may be denied access when the child is known to be at serious risk of abuse, and violence against a parent may also be a consideration in awarding access and adjudicating access disputes.  It is not known how often access is awarded in these circumstances.  However, the abused spouse can seek a restraining order or have the other parent placed on recognizance when there is risk of violence.  The abused spouse may be able to secure supervised access in these cases through the social services system, since authorities may attached supervised access as one of the conditions of access as part of peace bonds or restraining orders issued against the violent spouse.

Detail Description

Principles governing access awards

Children's Law Act (Nunavut) 1997 (Revised statute of the Northwest Territories statute, Chapter 14)

Children's best interests

  • The love, affection and emotional ties between the child and each person entitled to or seeking custody or access, other members of the child's family, and persons involved in the care and upbringing of the child.
  • The child's views and preferences when they can be reasonably ascertained.
  • The child's cultural, linguistic and spiritual or religious upbringing and ties.
  • The ability and willingness of each person seeking custody to provide the child with guidance, education and necessities of life and provide for special needs of the child.
  • The ability of each person seeking custody or access to act as a parent.
  • Who, from among those persons entitled to custody or access, has been primarily responsible for the care of the child.
  • The effects a change of residence will have on the child.
  • The permanence and stability of the family unit within which it is proposed the child live.
  • Any plans proposed for the care and upbringing of the child.
  • The relationship, by blood or through adoption, between the child and each person seeking custody or access.
  • The willingness of each person seeking custody to facilitate access.
  • Any evidence that a person seeking custody or access has at any time committed an act of violence against his or her spouse, former spouse, child, child's parent or any other member of the person's household.
  • Family and any effect that such conduct had, is having or may have on the child.

Provisions for dealing with cases involving child abuse and violence and spousal abuse and violence
  1. Parents may be denied access when the child is known to be at serious risk of abuse.
  2. Violence against a parent may also be a consideration in awarding access and adjudicating access disputes.

Role of the child's wishes in access disputes
  1. Judge can appoint a separate counsel to represent the children's interests when they think it necessary.
  2. Child's wishes are one consideration include in determining the child's best interests.

Detail Description

Penalties for unwarranted access denial

Children's Law Act (Nunavut) 1997 (Revised statute of the Northwest Territories statute, Chapter 14)
  1. Supervised access.
  2. Reimbursement of expenses incurred as a result of access denial.
  3. Appointment of a mediator.
  4. Compensatory access.

Penalties for unwarranted breach of access or failure to exercise access
  1. Supervised access.
  2. Reimbursement of expenses incurred as result of access denial.
  3. Appointment of a mediator.
  4. Requiring respondent to provide his or her address and telephone number to the applicant.

Mandatory supports for separating or divorcing parents

None.

Voluntary supports for separating or divorcing parents
  1. Basic information services at the court.
  2. Counselling, mediation or both may be available in some communities through social service agencies or individuals.

Mandatory supports for parties in access disputes, including children

None.

Legal Aid and other legal supports for parties in access disputes, including children

Available to parties in access disputes, including children.

Voluntary supports for parties in access disputes, including children

Counselling, mediation and supervised access may be available in some communities through social service agencies or individuals.

Mandatory supports for enforcement of access

Supervised access where available.  Not generally available.

NORTHWEST TERRITORIES

Section 30 of the Northwest Territories Act provides for the enforcement of access orders through several penalties.  Access enforcement penalties apply to custodial parents who breach access terms by failing to return the child or failing to show up as agreed.  Penalties apply more or less symmetrically to both kinds of violations.  However, the provisions are rarely used, if ever.  Court officials say no applications have come before N.W.T. courts since August 1999, when all family law applications began passing through the hands of a single court officer.

There are no mandatory services for divorcing parents or parents engaged in access disputes prior to the court hearing.  Judges can order couples into mediation as one of the penalties for an access violation.  Judges may also order access to continue under supervision as one of the penalties.  Some mediation and supervised access are available in Yellowknife privately, and the supervised access is largely volunteer-run and privately sponsored.

A pilot project offering voluntary group counselling for separating parents in Yellowknife recently ended, and territorial officials may implement the program permanently once it has been evaluated.  Informal feedback was positive.  Information and other support services for separating and divorcing parents had been available in Yellowknife until recently (with a 1-800 number and fax number), and will resume soon.

Parents may be denied access when the child is known to be at serious risk of abuse, and violence against a parent may also be a consideration in awarding access and adjudicating access disputes.  It is not known how often access is awarded in these circumstances.  However, the legislation allows the abused spouse to seek a restraining order or have the other parent placed on recognizance when there is risk of violence.

Detail Description

Principles governing access awards

Domestic Relations Act (R.S.N.W.T. 1998)

Children's best interests

  • Welfare of the child.
  • Conduct of the parents.
  • Wishes of each parent.
  • Court may consult the wishes of the child.

Role of the children's wishes in deciding access enforcement disputes
  1. Judge can appoint a separate counsel to represent the children's interests when they think it necessary.
  2. Child's wishes are one consideration include in determining the child's best interests.

Penalties for denial of access

Domestic Relations Act (R.S.N.W.T. 1998)
  1. Supervised access.
  2. Reimbursement of expenses incurred as a result of access denial.
  3. Appointment of a mediator.
  4. Compensatory access.

Penalties for breach of access or failure to exercise access
  1. Supervised access.
  2. Reimbursement of expenses incurred as result of access denial.
  3. Appointment of a mediator.
  4. Requiring respondent to provide his or her address and telephone number to the applicant.

Mandatory supports for separating or divorcing parents

None.

Voluntary supports for separating or divorcing parents
  1. Information services:  Family and Civil Law Information Officers disseminate legal information and may approve agreements among the parties.  Yellowknife (plus 1-800 number).  Lapsed but to be reinstated soon.
  2. Parent education:  Parenting after separation and divorce.  Pilot project.  Group counselling provided to couples (Yellowknife).  May be expanded after evaluation complete.
  3. Case management.  At parties' request.

Mandatory supports for parties in custody and access disputes, including children

None (over and above penalties).

Legal Aid and other legal supports for parties in custody and access disputes, including children
  1. Legal Aid includes assistance for access enforcement.
  2. The Legal Services Board also provides representation for children old enough to instruct counsel when parents' counsel indicates this is needed.

Non-mandatory supports for parties in custody and access disputes, including children

Basic information services from the court.  Sparse private counselling, mediation.

Mandatory supports for enforcement of access orders

Supervised access not widely available.

YUKON

Yukon leaves access enforcement penalties to judicial discretion.  It is not known whether access enforcement provisions apply solely to custodial parents who deny access or also to access parents who breach access orders or fail to exercise access.  It is not known how frequently applications come before the court, or what penalties are applied, if any, to those that do.

There are no mandatory programs or supports for parents in access disputes; however, parties who have commenced proceedings may be referred, with their consent, to a pre-trial settlement conference with a judge, or agree to a mini-trial, in which parties argue their cases to a judge for a non-binding ruling.  Judicial mediation is also available and judges receive mediation training.

There are no mandatory supports or programs for separating and divorcing parents.  A pilot parenting education program has been launched, using the Manitoba program as a model.

Parents may be denied access which the child is known to be at serious risk of abuse.

Detail Description

Principles governing access awards

Children's Act (R.S.Y.T. 1986)

Children's best interests

  • Bonding, love, affection and emotional ties between the child and each person claiming or entitled to custody or access, other members of the family who reside with the child, and persons involved in the care and raising of the child.
  • Views and preference of the child when they can be reasonably ascertained.
  • Length of time (with regard to the child's sense of time) the child has lived in a stable environment.
  • Ability and willingness of each person applying for custody to provide child with guidance, education and the necessities of life, and for any special needs of the child.
  • Any plans for the care and upbringing of the child.
  • Permanence and stability of the family unit where it is proposed the child will live.
  • Effect that awarding custody or care of the child will have on other party's reasonable access to the child.

Role of the child's wishes in deciding access disputes

Children's Act(R.S.Y.T. 1986)
  1. A consideration in determining child's best interests.
  2. Parties or the court may request a child advocate to represent child's interests in a proceeding.

Provisions for dealing with cases involving child abuse and violence and spousal abuse and violence

Unknown.

Penalties for denial of access

Court may give such directions as it considers appropriate.

Penalties for breach of access or failure to exercise access

Unknown.

Mandatory supports for separating and divorcing parents

None.

Voluntary supports for separating and divorcing parents

1. Parenting education.  Pilot project.  For the Sake of the Children.  Four three-hour information workshops using the Manitoba program offered in 1998-99, repeated in 1999-2000.

Mandatory supports for parties in access disputes

None.

Legal Aid and other legal supports to parties in custody/access disputes, including children

Legal Aid available for interim proceedings involving custody and access orders.  Cases must generally have no pre-existing orders of the court or other lawfully binding resolutions.  Assistance may be provided when the health or safety of child or parent or the child-parent relationship is at risk.

Voluntary supports to parties in custody/access disputes, including children
  1. Pre-trial conferences or court-based mediation.  At parties' consent, dispute may be sent to a pre-trial settlement conference with a judge or a mini-trial, in which parties present their cases to a judge for a ruling.  Rulings are not binding but parties typically settle disputes using this information.
  2. Judicial mediation.  Judges in both Territorial and Supreme Courts receive mediation training and with parties consent may mediate disputes prior to trial.

Mandatory supports for enforcement of access orders

None.