The Child-centred Family Justice Strategy:
Survey on the Practice of Family Law in Canada 2004-2006

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APPENDIX B: SURVEY ON THE PRACTICE OF FAMILY LAW IN CANADA

SURVEY ON THE PRACTICE OF FAMILY LAW IN CANADA

The Canadian Research Institute for Law and the Family is conducting this survey as part of a project funded by the Department of Justice Canada. This survey is intended to obtain current information on the characteristics of cases handled by family law practitioners in Canada, and to obtain information from both lawyers and judges concerning family law issues. You may have completed a similar survey at the 2004 National Family Law Program in La Malbaie. This survey is being replicated this year to allow for the examination of trends in family law, and to allow practitioners to share their views about developments in family law, such as the Spousal Support Advisory Guidelines.

We would appreciate your assistance in completing this survey. Please be assured that your anonymity will be maintained and that responses will not be attributed to individuals.

This project is intended to help increase understanding of areas that should be addressed in law reform. Family law practitioners have important perspectives, and you are encouraged to participate.

As an incentive for participating in this project, if you complete the survey, your name will be entered in a draw for one of several prizes, including: one waiver of the registration fee for the 2008 National Family Law Program; and ten copies of the most recent edition of Canadian Child Welfare Law: Children, Families and the State. To enter this draw, please complete the entry form attached to this page, remove it from the survey, and drop both the entry form and the completed survey off at the Conference Registration Desk before 5:30 p.m. on Wednesday, July 12, 2006. The draw for the prizes will be made on Wednesday evening. Entry forms will be destroyed after the draws are made.

Thank you for your cooperation in completing this survey.

SURVEY ON THE PRACTICE OF FAMILY LAW IN CANADA

• 1.0 Demographic Information

  • 1.1 In what province(s)/territory do you work?

  • 1.2 What is your profession?

    • Lawyer — private practice
    • Lawyer — government or agency
    • Lawyer — clinic
    • Judge [Please go to Question 1.7]
    • Other (please specify)

  • 1.3 If you are a lawyer, how long have you been practicing family law?

    • years
    • What proportion of your practice involves family law cases?
      %

  • 1.4 Is your client base:

    • Mostly large urban (>100,000 population)
    • Mostly small urban (10,000 — 100,000 population)
    • Mostly rural (<10,000 population)
    • Fairly equal mix of urban and rural

  • 1.5 Are you registered with a lawyer referral service?

    • Yes
      If yes, what proportion of your cases come from a lawyer referral service? %
    • No

  • 1.6 If you are a lawyer, do you also conduct mediation sessions?

    • Yes
    • No

  • 1.7 In the past five years, have you taken any training, including continuing education courses, on the following family law issues? (Please check all that apply.)

    • Dispute resolution (e.g., mediation)
    • Collaborative family law
    • Family violence
    • Child support guidelines
    • Custody/access
    • Property division
    • Spousal support
    • Other (please specify)

• 2.0 Case Characteristics

  • 2.1 How many family law cases have you handled in the past year?

  • 2.2 What proportion of these cases involved children? %

  • 2.3 In what proportion of the family law cases that you have handled in the past year was either party funded by legal aid? %

  • 2.4 What proportion of your family law cases with children involved are variations of previous orders/agreements?

    % [ Judges: Please go to Question 2.8 ]

  • 2.5 How would you classify the majority of your clients?

    • Primarily custodial (or primary care) parents
    • Primarily non-custodial parents
    • Approximately equal proportions of custodial and non-custodial parents

  • 2.6 In what proportion of your cases in the past year was the final resolution of the case accomplished in the following ways?

    • Settled by parents %
    • Settled by mediation %
    • Settled by negotiation before trial %
    • Settled by settlement conference %
    • Resolved by collaborative family law %
    • Decided by a judge after a hearing or trial %

  • How frequently do you encourage your clients to seek resolutions outside court?

    • Rarely
    • Occasionally
    • Often
    • Almost always

  • 2.7 In what percent of your family law cases is there an interim order that is, in effect, the final judicial disposition, because the case is thereafter resolved without a trial? %

  • 2.8 In your experience, in a divorce case, which of the following issues are most likely to require a trial and judicial decision to be resolved? ( Please check all that apply. )

    • Child support
    • Custody
    • Access
    • Spousal support
    • Property division
    • Child support arrears
    • Spousal support arrears

  • 2.9 In your experience, in a variation case, which of the following issues are most likely to require a trial and judicial decision to be resolved? ( Please check all that apply. )

    • Child support
    • Custody
    • Access
    • Spousal support
    • Child support arrears
    • Spousal support arrears
    • Undue hardship
    • Parental relocation (mobility)

• 3.0 Services

  • 3.1 How do you keep informed about family justice services (i.e., services available to clients to assist them in family law matters, e.g., counselling, education, mediation etc.)? (Please check all that apply.)

    • Colleagues
    • Local professional seminars
    • National or international conferences
    • Professional associations and meetings
    • Internet
    • Newsletters
    • Provincial/territorial continuing legal education courses
    • Professional publications (reporting services, journals, etc.)
    • Other (please specify)

  • Which of these sources is most helpful to you in keeping informed about family justice services?

    
  • [Judges: Please go to Question 3.9]

  • 3.2 In general, how well informed are your clients about the following at the outset of their case?

    	Very well informed	Somewhat informed	Not at all informed	They are misinformed	N/A
    Marriage or relationship counselling
    Individual counselling
    Mediation services
    Child assessment services
    Collaborative family law
    Programmes d'éducation parentale
    Parenting plans (written document jointly developed by parents)
    Psychological effects of divorce on children
    Domestic violence services
    Supervised Access
    Supervised Exchange
    Child Support Issues
    Family Law Information Centres
    Maintenance enforcement programs
    Financial assistance services
    Legal Aid services/Duty counsel
    Spousal support issues
    Variation or recalculation services

  • 3.3 Where do your clients get their information about the above? (Please check all that apply.)

    • Friends/family members
    • Another lawyer
    • Media stories or advertising (e.g., television, radio, newspaper)
    • Books
    • Internet
    • Court services
    • Public legal education and information association
    • Parenting education programs
    • Other (please specify)

  • 3.4 How often do you inform your clients about or refer your clients to the following?

    	Rarely	Occasionally	Often	Almost Always
    Marriage or relationship counselling
    Individual Conselling
    Mediation services
    Child assessment services
    Collaborative family law
    Parenting plans
    Parenting education programs
    Domestic violence services
    Supervised access
    Supervised exchange
    Maintenance enforcement programs
    Financial assistance services
    Legal Aid services/Duty counsel
    Variation or recalculation services

  • 3.5 How willing are your clients to use family justice services?

    • Very willing
    • Somewhat willing
    • Not willing

  • For clients who are willing to use family justice services, did they experience any difficulties in accessing them?

    • Yes
    • No

  • If yes, what was the major difficulty?

    • Cost
    • Time delay
    • Location of service
    • Lack of trust in service
    • Other (please specify)

  • For clients who are not willing to access family justice services, what is the biggest obstacle?

    • Cost
    • Time delay
    • Location of service
    • Lack of trust in service
    • Other (please specify)

  • 3.6 To what extent do you think that your cases are more likely to be settled out of court because of the family justice services that are available?

    • Not more likely
    • Somewhat more likely
    • Much more likely

  • 3.7 Are there services that are not available in your community that you think would be helpful for you and your clients? If so, please specify.
    
    

  • 3.8 Are family justice services available to your clients in their official language of choice?

    • Yes
    • No

  • 3.9 Is there a Unified Family Court in your province/territory?

    • Yes
    • No

  • 3.10 To what extent do you agree that Unified Family Courts accomplish the following?

    	Strongly agree	Agree	Disagree	Strongly Agree
    Simplify procedures
    Provide easy access to various family justice services
    Provide timely resolution to family law matters
    Produce outcomes tailored to individual needs

  • 3.11 If your province/territory does not currently have Unified Family Courts, would you like to see them implemented?

    • Yes
    • No

    Please explain.

• 4.0 Best Interest Criteria

  Currently, subsection 16(8) of the Divorce Act provides that in making a custody order, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs, and other circumstances of the child.

  • 4.1 Does the provincial/territorial legislation in your jurisdiction include specific criteria for determining the best interests of the child?

    • Yes
    • No

  • If yes, do you use these criteria in cases under the Divorce Act?

    • Yes
    • No
  • If No, why not?

  • 4.2 In your experience, are most parenting arrangements that are made through the following processes consistent with the best interests of the child?

    	Yes	No
    Arrangements made by parents themselves
    Arrangements made as a result of mediation
    Arrangements negotiated by lawyers (on their own or after judicial conference)
    Arrangements that are a result of collaborative family law
    Arrangements made by a judge after a trial of hearing

  • 4.3 In your experience, when parents are aware of the negative effects of separation/divorce on their children, does this awareness affect their behaviour?

    • Yes
    • No

    Please explain.

  • 4.4 In your opinion, are parenting plans (i.e., a detailed written plan jointly developed by parents to address their child's care and needs) a good mechanism for ensuring that the best interests of the child are met?

    • Yes, in all cases
    • Yes, in most cases
    • Yes, in high conflict cases only
    • No

  • 4.5 In what proportion of your cases with children involved are parenting plans used?
    % [Judges: Please go to Question 5.1]

  • 4.6 Do you have a form that you use as a guide for parenting plans?

    • Yes
    • No

  • If no, do you think a guide would be useful?

    • Yes
    • No

  • 4.7 In your experience, how helpful are parenting plans to your clients?

    • Not very helpful
    • Somewhat helpful
    • Very helpful

    Please explain

• 5.0 Child Representation

  The United Nations Convention on the Rights of the Child asserts the right of the child to participate in decisions that affect his or her life.

  • 5.1 What are the best mechanisms to enable children to voice their views? (Please check all that apply.)

    • Judicial interview with child
    • Testimony by child
    • Assessment report
    • Legal representation for child
    • Non-legal representation for child
    • Legislative provision that parents should consult their children respectfully when making parenting arrangements upon separation
    •   Other (please specify)

  • 5.2 Which of the following factors are important when deciding what weight should be given to the child's views? (Please check all that apply.)

    • Age of child
    • Ability of child to communicate
    • Ability of child to understand the situation
    • Child's emotional state
    • Child's reasons for views
    • Indication of parental coaching/manipulation
    • Other (please specify)

  • 5.3 How much weight should be given to the preferences of a child regarding custody decisions at the following ages?

    	None	Light	Heavy
    Under 6 years of age
    6 to 9 years of age
    10 to 13 years of age
    14 years or older

    
    

• 6.0 Custody and Access

  • 6.1 How often do you use terminology other than "custody" and " access " in your agreements?

    • Rarely
    • Occasionally
    • Often
    • Almost Always

  • 6.2 How often do you use terminology other than "custody" and " access " in your orders?

    • Rarely
    • Occasionally
    • Often
    • Almost Always

  • 6.3 In your experience, how often are parents sharing decision-making in the following areas?

    	Rarely	Occasionally	Often	Almost Always
    Health
    Education
    Religion
    Cultural
    Child's residence
    Other (please specify)

  • 6.4 If legislative amendments to the Divorce Act replace the terms " custody " and "access" with "parenting order," which includes decision-making responsibilities and parenting time, to what extent do you think this would promote a less adversarial process?

    • Not at all
    • Somewhat
    • To a great extent

  • 6.5 When parents do not comply with their custody/access orders, what are the circumstances of the case? Please indicate how often this has occurred in your experience.

    	Rarely	Occasionally	Often	Almost Always
    Access parent does not exercise access
    Access parent is late returning child
    Custodial parent refuses access for no valid cause
    Custodial parent refuses access for cause (e.g., access parent intoxicated)
    Child refuses visit with access parent
    Frequent changes in schedule
    Family violence concerns
    Other (please specify)

    [ Judges: Please go to Question 6.10 ]

  • 6.6 What proportion of your cases with children involved include supervised access?

    %

  • 6.7 Under what circumstances do you recommend supervised access to your clients? (Please check all that apply.)

    • In high conflict situations
    • In situations of spousal violence
    • In situations where there are allegations of child abuse
    • In situations where there is substance abuse
    • In situations where there are mental health concerns
    • I don't recommend supervised access
    • Not available in my jurisdiction
    • Other (please specify)

  • 6.8 What proportion of your cases with children involved include supervised exchange?

    %

  • 6.9 Under what circumstances do you recommend supervised exchange to your clients? (Please check all that apply.)

    • In high conflict situations
    • In situations of spousal violence
    • In situations where there are allegations of child abuse
    • In situations where there is substance abuse
    • In situations where there are mental health concerns
    • I don't recommend supervised access
    • Not available in my jurisdiction
    • Other (please specify)
  • 6.10 In what proportion of your cases with children involved is parental relocation (mobility) an issue?

    %

  • 6.11 In cases where parental relocation is an issue, how often are the following reasons given?

    	Rarely	Occasionally	Often	Almost Always
    Employment opportunity
    Educational opportunity
    To be closer to family/friends
    To be with new partner
    No particular reason
    Other (please specify)

  • 6.12 In cases where parental relocation is an issue, what are the circumstances? (Please indicate how often each of the following occurs in your experience.)

    	Rarely	Occasionally	Often	Almost Always
    Custodial parent wishes to move within city
    Custodial parent wishes to move within the province/territory
    Custodial parent wishes to move to a different province/territory
    Custodial parent wishes to move outside the country
    Access parent wishes to move within the city
    Access parent wishes to move within the province/territory
    Access parent wishes to move to a different province/territory
    Access parent wishes to move outside the country
    Other (please specify)

  
  

• 7.0 Child Support Guidelines

  • 7.1 Overall, the Child Support Guidelines have resulted in a better system of determining child support than the pre-1997 system.

    • Strongly Agree
    • Agree
    • Disagree
    • Strongly Disagree

  • Please express your opinion regarding the following statements.

    7.2 Cases are settled more quickly since the implementation of the Guidelines.

    • Strongly Agree
    • Agree
    • Disagree
    • Strongly Disagree

  • 7.3 Since implementation of the Guidelines, most cases are resolved simply by relying on the Tables to establish amounts of support.

    • Strongly Agree
    • Agree
    • Disagree
    • Strongly Disagree

  • 7.4 In cases involving litigation, the issues to be resolved are more defined and focussed than prior to implementation of the Guidelines.

    • Strongly Agree
    • Agree
    • Disagree
    • Strongly Disagree

  • 7.5 What proportion of your child support cases involve undue hardship applications?

    %

  • 7.6 How often is income disclosure a problem in your experience?

    • Rarely
    • Occasionally
    • Often
    • Almost Always

    If income disclosure is a problem, please explain.

    

  • 7.7 How often are second families an issue in your experience?

    • Rarely
    • Occasionally
    • Often
    • Almost Always

    If second families are an issue, please explain.

    

  • 7.8 Are there areas of the Child Support Guidelines that you have found to be problematic in your experience? If so, please explain and suggest reforms.

    

• 8.0 Spousal Support

  • 8.1 In your experience, in what percent of cases is spousal support an issue?

    %

  • 8.2 The spousal support Advisory Guidelines (SSAG) were released in January 2005. In cases where spousal support is an issue, how often do you use the SSAG?

    • Never
    • Occasionally
    • Often
    • Almost Always

  • 8.3 Have the SSAG made the handling of spousal support applications:

    more consistent	Yes	No
    fairer	Yes	No
    less conflictual	Yes	No
    generally easier to resolve	Yes	No

  • 8.4 In your experience, when spousal support is an issue, in what percent of the following situations is:

    	Reference made to SSAG	Resolution within the SSAG range
    Discussions with clients
    Cases settled by negotiation
    Cases settled by mediation
    Interim motions
    Cases settled by case conference
    Cases resolved by judge after hearing

  • 8.5 In cases where spousal support is an issue, what are the circumstances of the case? (Based on your experience, how often do each of these occur?)

    	Rarely	Occasionally	Often	Almost Always
    Claimant spouse is a stay-at-home parent
    Claimant spouse was a stay-at-home parent to children now grown and is not in labour force
    Couple had no children and claimant spouse is not in labour force
    Respondent's income is considerably higher than claimant spouse's income
    Potential payor has income of $75,000 or more
    Trade-off of property in lieu of monetary spousal support
    Other (please specify)

  • 8.6 In cases where both child support and spousal support are issues, which matter is typically dealt with first in most cases.

    • Child support
    • Spousal support
    • Both are resolved together

• [ Judges: Please go to Question 9.4 ]

  9.0 Family Violence

  • 9.1 Do you make inquiries in every case to attempt to identify cases of family violence?

    • Yes
    • No

  • 9.2 Do you use a screening tool (i.e., a standardized questionnaire) to identify cases of family violence?

    • Yes
    • No

    If yes, which one(s)?

    If yes, do you use the screening tool with both women and men?

    • Yes
    • No

  • 9.3 Are you familiar with the services available for your clients in cases where there is family violence?

    • Yes
    • No
    • No services available in my area

  • 9.4 In cases involving spousal violence, how did the court address the issue? (Please indicate how often this has occurred in your experience.)

    	Rarely	Occasionally	Often	Almost Always
    Assessment services were used
    Child was given legal representation
    Access supervision was ordered
    Exchange supervision was ordered
    Counselling services were used
    Parents were educated on the effects of family violence on children
    Access was denied to abusive parent
    Custody was denied to abusive parent
    Civil order restraining harassment/spousal contact
    Court did not address the issue
    Other (please specify)

  • 9.5 In these cases involving child abuse, how did the court address the issue? (Please indicate how often this has occurred in your experience.)

    	Rarely	Occasionally	Often	Almost Always
    Assessment services were used
    Child was given legal representation
    Access supervision was ordered
    Exchange supervision was ordered
    Counselling services were used
    Parents were educated on the effects of family violence on children
    Access was denied to abusive parent
    Custody was denied to abusive parent
    Civil order restraining harassment/spousal contact
    Court did not address the issue
    Other (please specify)

  • 9.6 Are training sessions on spousal violence issues available to family justice professionals in your jurisdiction?

    • Yes
    • No

    If yes, is the available training adequate?

    • Yes
    • No

    If yes, is the available training adequate?

    • Yes
    • No

  • 9.7 Are training sessions on child abuse issues available to family justice professionals in your jurisdiction?

    • Yes
    • No

    If yes, is the available training adequate?

    • Yes
    • No

  • 9.8 Do you have any other comments about the family law system in Canada?

    

  • 9.9 What topics would you like to see researched in the family law area in Canada?

    

Thank you for completing this survey.

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