The Child-centred Family Justice Strategy: Baseline Information from Family Law Practitioners

4.0 Summary and Conclusions

In this chapter, the overall findings from the Survey on the Practice of Family Law in Canada are presented. In addition, the findings from the workshops on parenting arrangements and family violence are summarized. The concluding section highlights positive and negative aspects of the family law system in Canada, as identified by the lawyers, judges, and justice system professionals who participated in the workshops and completed the surveys.

4.1 Summary of Survey and Workshop Findings

4.1.1 Demographics of Survey Respondents

Of the 117 surveys returned, 92 percent were completed by lawyers, six percent were completed by judges, and two percent were completed by other professionals.
The lawyers involved in the survey had been practicing family law an average of 17 years, and 81 percent of their practice involved family law cases.
The largest proportion of respondents were from Ontario, Alberta, and Nova Scotia, and their client base was mostly large urban (>100,000 population) (54 percent) and small urban (10,000 – 100,000 population) (29 percent).
Almost one third of lawyers said they conduct mediation sessions.
A substantial proportion of respondents had attended education and training programs in the following areas: child support guidelines, spousal support, custody/access, and property division.

4.1.2 Case Characteristics

Survey respondents handled an average of 93 family law cases in the past year; an average of 74 percent of those involved children.
Over one quarter of survey respondents' family law cases with children involved were variations of previous orders/agreements.
Survey respondents reported that cases were resolved most frequently in the following manners: settled by negotiation before trial (48 percent) and settlement conference (24 percent), with only a minority (14 percent) being decided by a judge.
Issues that survey respondents identified as most likely to require a trial and judicial decision to be resolved in divorce cases were: spousal support (74 percent); custody (54 percent); and property division (44 percent).
Issues that survey respondents identified as most likely to require a trial and judicial decision to be resolved in variation cases were parental relocation (64 percent) and spousal support (60 percent).

4.1.3 Services

Survey respondents said they keep informed about family justice services through the following mechanisms: colleagues; provincial/territorial continuing legal education courses; local professional seminars; professional associations and meetings; national or international conferences; and professional publications.
Lawyers who responded to the survey reported that their clients are either somewhat informed or not at all informed about family justice services/issues at the outset of their case. Clients are most likely to be informed about child support issues, marriage or relationship counselling, and individual counselling. Clients are least likely to be informed about collaborative family law, child assessment services, parenting plans, and supervised exchange.
Survey respondents said that their clients were most likely to get their information about family justice services/issues from friends and family members, the Internet, media stories or advertising.
According to the survey, lawyers were most likely to inform their clients about, or refer clients to, the following family justice services: maintenance enforcement programs; individual counselling; parenting education programs; mediation services; parenting plans; and marriage or relationship counselling.
Over two thirds of the survey respondents reported that their clients are somewhat willing to use family justice services. For clients who are not willing to access family justice services, respondents said the biggest obstacles were: time delay; lack of trust in the service; cost; and location of service.
Survey respondents said that their cases are somewhat more likely (51 percent) or much more likely (19 percent) to be settled out of court because of the family justice services that are available.
Survey respondents reported that the following services would be helpful to their clients, but are not available in their community: supervised access/affordable supervised access; mediation/affordable mediation; parent information/education services or programs; and assessments/assessors/assessment centres.
Over half of the survey respondents (57 percent) said there is a Unified Family Court in their province/territory. In general, about half of the respondents agreed or strongly agreed that Unified Family Courts have positive consequences, while about one quarter disagreed or strongly disagreed.
Over half of the survey respondents (59 percent) who do not have Unified Family Courts in their jurisdiction said they would like to see them established.

4.1.4 Best Interest Criteria

According to the survey respondents, the processes most likely to be consistent with the best interests of the child are arrangements made as a result of mediation, and arrangements negotiated by lawyers (on their own or after judicial conference).
The majority of survey respondents (63 percent) said that the provincial/territorial legislation in their jurisdiction included specific criteria for determining the best interests of the child. The vast majority of those respondents (94 percent) reported that they also use those criteria in cases under the Divorce Act.
A somewhat surprising 44 percent of survey respondents said that even when parents are aware of the negative effects of separation/divorce on their children, this awareness does not affect their behaviour. The most common reasons given for this were: parents are unable to isolate their children's interests from their own; the emotional and/or financial repercussions of the separation interfere, and parents can't get past their anger; even when parents are aware, they have difficulties changing their behaviour; parents often use their new awareness against the other parent; and the ability to change depends on their education level, relationship between the parties, and their willingness to change.
Over one half of the lawyers responding to the survey (56 percent) thought that parenting plans are a good mechanism for ensuring that the best interests of the child are met in all cases, and over one quarter (29 percent) thought they were a good mechanism in high conflict cases.
Survey respondents said that parenting plans were used in just under one third of their cases (31 percent) involving children. One third of respondents (33 percent) said they have a form they use as a guide for parenting plans, and 84 percent who said they did not have a form said they would find a form useful.
The vast majority of lawyers responding to the survey reported that they found parenting plans were somewhat or very helpful to their clients. Respondents said parenting plans can diminish day-to-day conflict between parents, help parents to focus on the child, help to identify aspects of parenting and provide guidelines for parents, provide predictability when dividing parental tasks, give parents ownership of their plan and allow them to tailor the plan to their individual needs.

4.1.5 Child Representation

Survey respondents thought that the best mechanisms to enable children to voice their views were assessment reports (74 percent) and legal representation for the child (65 percent).
Survey respondents thought the following factors were important when deciding what weight should be given to the child's views: age of child; indication of parental coaching/manipulation; ability of child to understand the situation; child's reason for views; ability of child to communicate; and the child's emotional state.
The older the child, the more weight respondents thought should be given to their preferences regarding custody decisions. While 56 percent of survey respondents thought no weight should be given to children under the age of six, 92 percent thought the preferences of children 14 or over should be weighed heavily.

4.1.6 Custody and Access

Almost three quarters of survey respondents said that they often or almost always use terminology other than "custody" and "access" in their agreements. However, almost two thirds reported that they rarely or occasionally use alternate terminology in their orders.
Workshop participants said they use the following terms instead of "custody": "shared parenting," "parenting," "co-parenting," "primary parenting," "primary parent," and "parallel parenting."
Workshop participants said they used the terms "parenting time" and "parenting care and control" instead of "access."
Almost all of the workshop participants were aware of the provisions that were in the recently proposed amendments to the Divorce Act (formerly Bill C-22, which died on the order paper in November 2003) regarding parenting arrangements. Approximately 60 percent of the group said that the proposed amendments had an impact on their practice with increased use of parenting plans or new terminology even though the bill was not enacted.
Three quarters of survey respondents thought that legislative changes to the Divorce Act to replace the terms "custody" and "access" with "parenting order" would promote a less adversarial process.
The majority of survey respondents said that parents shared decision making often or almost always in the areas of health and education.
Workshop participants noted that the number of cases in which fathers are seeking more involvement with their children post-separation has increased dramatically in the past few years.
When workshop participants were asked what they thought the most predominant reason was for an increase in shared parenting cases, approximately one quarter thought it was due to Federal Child Support Guidelines provisions, one quarter thought it was because fathers are more aware of their options, and one half thought it was because fathers are more involved with their children.
None of the workshop participants thought that there is a "typical" parenting arrangement.
Approximately one half of the workshop participants thought that there is a gender bias in the courts, and that the bias is against men.
Approximately three quarters thought the problem of gender bias against men was about the same as in the past, about one quarter thought it was getting better, and nobody thought it was getting worse.
Approximately one half of workshop participants said they have been involved in enforcement applications for access, and almost one fifth of the group said that the denial of access provided for in an agreement or court order occurs in over 25 percent of their cases.
When parents do not comply with their custody/access orders, survey respondents reported that the most frequent problem is that the access parent was late returning the child.
Approximately one half of the workshop participants said that parental alienation was a significant problem in their practice.
Lawyers who responded to the survey reported that very few of their cases involved supervised access (eight percent) or supervised exchange (six percent). Supervised access was most likely to be recommended in cases of child abuse allegations, substance abuse, and mental health concerns. Supervised exchange was most likely to be recommended in cases of high conflict and spousal violence.
Lawyers who responded to the survey reported that parental relocation was an issue in 12 percent of their cases with children involved. In cases where parental relocation was an issue, the most common reasons were to be with a new partner, to be closer to family/friends, and employment opportunity.
According to the survey, the most common circumstances in cases of parental relocation were when the custodial parent wished to move within the province/territory and when the custodial parent wished to move to a different province/territory.

4.1.7 Federal Child Support Guidelines

Survey respondents overwhelming agreed that the Guidelines are meeting their objectives. Almost all respondents agreed or strongly agreed that the Federal Child Support Guidelines have resulted in a better system of determining child support than the pre-1997 system. Similarly, the vast majority of respondents agreed or strongly agreed that cases are settled more quickly since the implementation of the Guidelines; that most cases are resolved simply by relying on the tables to establish amounts of support; and, in cases involving litigation, that the issues to be resolved are more defined and focussed than prior to implementation of the Guidelines.
Survey respondents reported that very few of their cases (six percent) involved undue hardship applications.
Over one half of survey respondents said that income disclosure is often or almost always a problem. The most frequent reasons for this were self-employed income, unwillingness to disclose or provide supporting documentation, problems with tax returns, and undisclosed income/cash payments.
Over one third of survey respondents said that second families are an issue often, and one half said they are an issue occasionally. The most common reasons were that: second families affect the standard of living because there are too many demands on a limited income; they create access problems; and, child support payors with second families often refuse to acknowledge first family obligations.
Survey respondents identified the most problematic areas of the Guidelines as: section 9—shared custody and the 40 percent rule; section 7—special or extraordinary expenses; children over the age of majority/post-secondary education; and, second families.
Almost all workshop participants said they had significant problems with the shared custody provision in the Guidelines.

4.1.8 Spousal Support

Survey respondents reported that spousal support was an issue in one half of their cases.
Three quarters of survey respondents said that there is inconsistency in how spousal support applications are handled.
The circumstances that survey respondents reported occurred often in cases where spousal support is an issue are: claimant spouse is a stay-at-home parent; claimant spouse was a stay-at-home parent to children now grown and is not in the labour force; and, payor's income is considerably higher than claimant spouse's income.
In cases where both child support and spousal support are issues, almost all survey respondents stated that child support is dealt with first.
Over three quarters of survey respondents said it would be useful to try to establish non-binding spousal support guidelines.

4.1.9 Family Violence

Three quarters of workshop participants said that they were aware of recently proposed amendments to the Divorce Act in regard to family violence, but nobody said this proposed legislation had an impact on their practice.
Three quarters of the workshop participants said that they would like to see legislation that specifically raises domestic violence as a factor in custody and access cases.
Over three quarters of lawyers who responded to the survey indicated that they always make inquires to attempt to identify cases of family violence. However, almost all respondents said that they do not use a screening tool to identify cases of family violence.
Approximately one half of the workshop participants said that false or exaggerated allegations of spousal abuse are a significant problem.
Almost one half of the workshop participants said that there are significant numbers of women who are being abused, but they are not raising the issue of abuse before the courts.
About one fifth of the workshop participants said they have had cases with male victims of spousal abuse.
Approximately one fifth of workshop participants thought that a gender bias against men is a significant problem in the family law system, and one tenth thought that gender bias against women is a significant problem.
About two thirds of the workshop participants said that there are cultural issues in terms of reporting abuse.
About four fifths of the workshop participants said that they had been threatened by abusive partners of their clients, and one sixth said that they had been assaulted.
About one half of the workshop participants said that they do not always raise the issue of family violence with the court.
In cases involving spousal violence, over one third of the lawyers who responded to the survey indicated that the court rarely addressed the issue. When the court did address the issue, the most likely response was to deny custody to the abusive parent.
In cases involving child abuse, one half of the lawyers who responded to the survey indicated that the court rarely addressed the issue. When the court did address the issue, the most likely responses were to deny custody to the abusive parent, and to order access supervision.
Approximately one fifth of the workshop participants said that judges needed significantly more education on the issue of family violence, and one half thought that judges needed to be more aware of the social science literature, in particular about the effects of spousal abuse on children.
Over one half of survey respondents said that training sessions on spousal violence issues are not available to family justice professionals in their jurisdiction.
Almost two thirds of survey respondents said that training sessions on child abuse issues are not available to family justice professionals in their jurisdiction.
About three quarters of the workshop participants said that they needed more training on family violence issues.

4.2 Conclusions

The purpose of this project was to collect baseline data on the practice of family law in Canada. This project was undertaken in accordance with the Results-based Management and Accountability Framework for the Child-centred Family Justice Strategy of the Department of Justice Canada. This project provides baseline data on family law practice, as well as information about current views on issues and concerns of family lawyers and judges.

It is anticipated that if this type of project is repeated every two years, it will provide an indication of the success of the Child-centred Family Justice Strategy. Re-administering the Survey on the Practice of Family Law in Canada at regular intervals will provide trend data that will allow for examination of changes over time, as well as allowing for professionals to offer views on policy and law reform issues.

Overall, data from the survey and the workshops indicate that there are many positive aspects of the current family law system in Canada. One of the most positive components identified by project participants is the Federal Child Support Guidelines. It is clear from the responses received that the Guidelines are meeting their stated objectives and that they have resulted in a much fairer determination of child support than the former regime. Over 90% of survey respondents agreed or strongly agreed that the Guidelines have resulted in a better system of determining child support than the pre-1997 system.

Participants indicated strong support for case resolution mechanisms other than the traditional judicial resolution of cases. In fact, participants indicated that only about 14% of their cases are resolved by a judge after a hearing or trial. Mechanisms that respondents indicated as most effective were negotiation between lawyers before trial and settlement conferences.

The vast majority of the lawyers who responded to the survey reported that they found parenting plans were helpful to their clients. One third of the lawyers said they have a form that they use as a guide for parenting plans. Of the respondents who do not have a form, 84% said they would find a form useful.

Participants were also very much in favour of changes in terminology as outlined in the proposed (but not passed) legislative amendments to the Divorce Act.Almost all of the workshop participants indicated that they were aware of the provisions in the recently proposed amendments, and about 60% of participants said that these provisions had an impact on their practice. Three quarters of survey respondents thought that legislative changes to replace the terms "custody" and "access" with "parenting order" would promote a less adversarial process.

While project participants identified many positive aspects to the current family law system in Canada, they also highlighted some areas needing improvement. As mentioned above, participants were very supportive of out-of-court mechanisms for settling family law disputes. However, participants also reported that affordable support services were lacking, most notably supervised access, mediation, assessments, and parent education. Survey respondents noted that their clients are generally not well informed about family justice services and issues at the start of their case, which suggests the need for enhanced public legal education initiatives.

Survey respondents identified spousal support as a problematic area in their practice, and three quarters of them indicated that there is inconsistency in how spousal support applications are handled. Over three quarters of the respondents said that it would be useful to try to establish non-binding spousal support guidelines, an initiative that is currently being pursued by the Department of Justice Canada. Although no questions were asked about family law legal aid, a number of respondents volunteered that this is a major concern.

Another problematic area identified by project participants was family violence. Three quarters of workshop participants said that they would like to see legislation that specifically raises domestic violence as a factor in custody and access cases. Participants indicated that in a significant proportion of their cases involving spousal violence or child abuse, the court rarely addressed the issue. One half of the workshop participants thought that judges needed to be more aware of the social science literature on family violence. Three quarters of the participants also said that they themselves needed more training on family violence issues. Over one half of survey respondents said that training sessions on spousal violence issues are not available in their jurisdiction, and two thirds said that appropriate training sessions on child abuse issues are not available for them in their jurisdiction.

Survey respondents' opinions on Unified Family Courts were somewhat mixed. Just over half of the respondents agreed that Unified Family Courts have positive consequences, while about one quarter disagreed. Over half of the survey respondents who do not have Unified Family Courts in their jurisdiction said they would like to see them established. Survey and workshop participants who noted problems with Unified Family Courts stated that judges sitting in these courts needed family law experience for the system to work efficiently and effectively, raising concerns about the rotation into these courts of judges without appropriate expertise.

Even though project participants were very positive about the Federal Child Support Guidelines, they did identify a few problematic areas. One half of survey respondents said the income disclosure is often or almost always a problem. Other problematic areas include shared custody, special or extraordinary expense, children over the age of majority, and second families.

In conclusion, this project has provided a baseline of information on the characteristics of cases handled by family law lawyers in Canada, as well as legal professionals' opinions on the current family law system. It has identified aspects of the family law system that are working well, and has highlighted areas where improvement is desired. This information will be useful to the Department of Justice Canada as it further develops and implements its Child-centred Family Law Strategy, and interesting for policy makers and others who want to better understand the functioning of Canada's family law justice system.

Date modified:: 2022-12-28

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