For the Sake of the Children Marathon of Hope

 
FOR THE SAKE OF THE CHILDREN

Report of the Special Joint Committee on Child Custody and Access December 1998

SUMMARY OF RECOMMENDATIONS

* Page numbers in parentheses indicate the location of the recommendation in the text of the Committee's report.

1. This Committee recommends that the Divorce Act be amended to include a Preamble alluding to the relevant principles of the United Nations Convention on the Rights of the Child. (Page 23)*

2. This Committee recognizes that parents’ relationships with their children do not end upon separation or divorce and therefore recommends that the Divorce Act be amended to add a Preamble containing the principle that divorced parents and their children are entitled to a close and continuous relationship with one another. (Page 23)

3. This Committee recommends that it is in the best interests of children that
-   They have the opportunity to be heard when parenting decisions affecting them are being made;
-   Those whose parents divorce have the opportunity to express their views to a skilled professional, whose     duty it would be to make those views known to any judge, assessor or mediator making or facilitating a     shared parenting determination;
-   A court have the authority to appoint an interested third party, such as a member of the child’s     extended family, to support and represent a child experiencing difficulties during parental separation or     divorce;
-   The federal government work with the provinces and territories to ensure that the necessary structures,     procedures and resources are in place to enable such consultation to take place, whether decisions are     being made under the Divorce Act or provincial legislation; and
-   We recognize that children of divorce have a need and a right to the protection of the courts, arising     from their inherent jurisdiction. (Page 23)

4. This Committee recommends that where, in the opinion of the court, the proper protection of the best interests of the child requires it, judges have the power to appoint legal counsel for the child. Where such counsel is appointed, it must be provided to the child. (Page 23)

5. This Committee recommends that the terms “custody and access” no longer be used in the Divorce Act and instead that the meaning of both terms be incorporated and received in the new term “shared parenting”, which shall be taken to include all the meanings, rights, obligations, and common-law and statutory interpretations embodied previously in the terms “custody and access”. (Page 27)

6. This Committee recommends that the Divorce Act be amended to repeal the definition of “custody” and to add a definition of “shared parenting” that reflects the meaning ascribed to that term by this Committee. (Page 28)

7. This Committee recommends that the federal government work with the provinces and territories toward a corresponding change in the terminology in provincial/territorial family law. (Page 28)

8. This Committee recommends that the common law “tender years doctrine” be rejected as a guide to decision making about parenting. (Page 28)

9. This Committee recommends that both parents of a child receive information and records in respect of the child’s development and social activities, such as school records, medical records and other relevant information. The obligation to provide such information should extend to schools, doctors, hospitals and others generating such information or records, as well as to both parents, unless ordered otherwise by a court. (Page 28)

10. This Committee recommends that all parents seeking parenting orders, unless there is agreement between them on the terms of such an order, be required to participate in an education program to help them become aware of the post-separation reaction of parents and children, children’s developmental needs at different ages, the benefits of co-operative parenting after divorce, parental rights and responsibilities, and the availability and benefits of mediation and other forms of dispute resolution, provided such programs are available. A certificate of attendance at such a post-separation education program would be required before the parents would be able to proceed with their application for a parenting order. Parents should not be required to attend sessions together (Page 30).

11. This Committee recommends that divorcing parents be encouraged to develop, on their own or with the help of a trained mediator or through some form of alternative dispute resolution, a parenting plan setting out details about each parent’s responsibilities for residence, care, decision making and financial security for the children, together with the dispute resolution process to be used by the parties. Parenting plans must also require the sharing between parents of health, educational and other information related to the child’s development and social activities. All parenting orders should be in the form of parenting plans. (Page 32)

12. This Committee recommends that the relationships of grandparents, siblings and other extended family members with children be recognized as significant and that provisions for maintaining and fostering such relationships, where they are in the best interests of those children, be included in parenting plans. (Page 32)

13. This Committee recommends that the Minister of Justice seek to amend the Divorce Act to require that parties applying to a court for a parenting order must file a proposed parenting plan with the court. (Page 32)

14. This Committee recommends that divorcing parents be encouraged to attend at least one mediation session to help them develop a parenting plan for their children. Recognizing the impact of family violence on children, mediation and other non-litigation methods of decision-making should be structured to screen for and identify family violence. Where there is a proven history of violence by one parent toward the other or toward the children, alternative forms of dispute resolution should be used to develop parenting plans only when the safety of the person who has been the victim of violence is assured and where the risk of violence has passed. The resulting parenting plan must focus on parental responsibilities for the children and contain measures to ensure safety and security for parents and children. (Page 33)

15. This Committee recommends that the Divorce Act be amended to provide that shared parenting determinations under sections 16 and 17 be made on the basis of the “best interests of the child”. (Page 44)

16. The Committee recommends that decision makers, including parents and judges, consider a list of criteria in determining the best interests of the child, and that list shall include

      16.1 The relative strength, nature and stability of the relationship between the child and each person       entitled to or claiming a parenting order in relation to the child;

      16.2 The relative strength, nature and stability of the relationship between the child and other members       of the child’s family who reside with the child, and persons involved in the care and upbringing of the       child;

      16.3 The views of the child, where such views can reasonably be ascertained;

      16.4 The ability and willingness of each applicant to provide the child with guidance and education, the       necessaries of life and any special needs of the child;

      16.5 The child’s cultural ties and religious affiliation;

      16.6 The importance and benefit to the child of shared parenting, ensuring both parents’       active involvement in his or her life after separation;

      16.7 The importance of relationships between the child and the child’s siblings, grandparents and other       extended family members;

      16.8 The parenting plans proposed by the parents;

      16.9 The ability of the child to adjust to the proposed parenting plans;

      16.10 The willingness and ability of each of the parties to facilitate and encourage a close and continuing       relationship between the child and the other parent;

      16.11 Any proven history of family violence perpetrated by any party applying for a parenting order;

      16.12 There shall be no preference in favor of either parent solely on the basis of that parent’s gender;

      16.13 The willingness shown by each parent to attend the required education session; and

      16.14 Any other factor considered by the court to be relevant to a particular shared parenting dispute.       (Page 45)

17. This Committee recommends that the Divorce Act be amended to ensure that parties to proceedings under the Divorce Act can choose to have such proceedings conducted in either of Canada’s official languages. (Page 46)

18. Whereas the federal government is required by statute to review the Federal Child Support Guidelines within five years of their implementation, this Committee recommends that the Minister of Justice undertake as early as possible a comprehensive review of the Guidelines to reflect gender equality and the child’s entitlement to financial support from both parents, and to give particular attention to the following additional concerns raised by this Committee:

      18.1 Incorporation into the Child Support Guidelines of the new concepts and language proposed by       this Committee;

      18.2 The impact of the current tax treatment of child support on the adequacy of child support as it is       awarded under the Guidelines and on parents’ ability to meet other financial obligations, such as to       children of second or subsequent relationships;

      18.3 The desirability of considering both parents’ income, or financial capacity, in determining child       support amounts, including the 40% rule for determining whether the parenting arrangement is       “shared parenting”;

      18.4 Recognition of the expenses incurred by support payers while caring for their children;

      18.5 Recognition of the additional expenses incurred by a parent following a relocation of the other       parent with the children;

      18.6 Parental contributions to the financial support of adult children attending post-secondary       institutions;

      18.7 The ability of parties to contract out of the Federal Child Support Guidelines; and

      18.8 The impact of the Guidelines on the income of parties receiving public assistance. (Page 51)

19. This Committee recommends that the federal government work with the provinces and territories toward the development of a nation-wide coordinated response to failures to respect parenting orders, involving both therapeutic and punitive elements. Measures should include early intervention, parenting education programs, a make-up time policy, counseling for families experiencing parenting disputes, mediation and, for persistent intractable cases, punitive solutions for parents who wrongfully disobey parenting orders. (Page 55)

20. This Committee recommends that the federal government establish a national computerized registry of shared parenting orders. (Page 55)

21. This Committee recommends that the provincial and territorial governments consider amending their family law to provide that maintaining and fostering relationships with grandparents and other extended family members is in the best interests of children and that such relationships should not be disrupted without a significant reason related to the well-being of the child. (Page 57)

22. This Committee recommends that the federal government provide leadership by ensuring that adequate resources are secured for the following initiatives identified by this Committee as critical to the effort to develop a more child-centered approach to family law policies and practices:

      22.1 Expansion of unified family courts across Canada, including the dedication of ample resources to       interventions and programs aimed at ensuring compliance with parenting orders, such as early       intervention programs, parenting education, make-up time policies, family and child counseling, and       mediation;

      22.2 Civil legal aid to ensure that parties to contested parenting applications are not prejudiced by the       lack or inadequacy of legal representation;

      22.3 A Children’s Commissioner, an officer of Parliament reporting to Parliament, who would       superintend and promote the welfare and best interests of children under the Divorce Act and in other       areas of federal responsibility;

      22.4 The provision of legal representation for children when appointed by a judge;

      22.5 Parenting education programs;

      22.6 Supervised access programs; and

      22.7 Enhanced opportunities for professional development for judges, focused on the concept of       shared parenting formulated by this Committee, the impact of divorce on children, and the importance       of maintaining relationships between children and their parents and extended family members.
      (Page 59)

23. This Committee recommends that the federal government continue to work with the provinces and territories to accelerate the establishment of unified family courts, or courts of a similar nature, in all judicial districts across Canada. (Page 63)

24. This Committee recommends that unified family courts, in addition to their adjudicative function, include a broad range of non-litigation support services, which might include

      24.1 family and child counseling,

      24.2 public legal education,

      24.3 parenting assessment and mediation services,

      24.4 an office responsible for hearing and supporting children who are experiencing difficulties stemming       from parental separation or divorce, and

      24.5 case management services, including monitoring the implementation and enforcement of shared       parenting orders. (Page 64)

25. This Committee recommends that, as much as possible, provincial and territorial governments, law societies and court administrators work toward establishing a priority for shared parenting applications, above other family law matters in dispute. (Page 64)

26. This Committee recommends that in matters relating to parenting under the Divorce Act, the importance of the presence of both parties at any proceeding be recognized and emphasized, and that reliance on ex parte proceedings be restricted as much as possible. (Page 64)

27. This Committee recommends that court orders respecting shared parenting be more detailed, readable and intelligible to police officers called upon to enforce them. (Page 67)

28. This Committee recommends that provincial and territorial governments explore a variety of vehicles for increasing public awareness about the impact of divorce on children and, in particular, the aspects of parental conduct upon marriage breakdown that are most harmful to children, and implement such education programs as fully as possible. To the extent practicable, the Committee recommends that the federal government contribute to such efforts within its own jurisdiction, including the provision of funding. (Page 68)

29. This Committee recommends that the federal government extend financial support to programs run by community groups for couples wanting to avoid separation and divorce or seeking to strengthen their marital relationship. (Page 68)

30. This Committee recommends that the Divorce Act be amended to require (a) that a parent wishing to relocate with a child, where the distance would necessitate the modification of agreed or court-ordered parenting arrangements, seek judicial permission at least 90 days before the proposed move and (b) that the other parent be given notice at the same time. (Page 70)

31. This Committee recommends that provinces and territories and the relevant professional associations develop accreditation criteria for family mediators and for social workers and psychologists involved in shared parenting assessments. (Page 72)

32. This Committee recommends that federal, provincial and territorial governments work together to encourage the development of effective models for the early identification of high-conflict families seeking divorce. Such families should be streamed into a specialized, expedited process and offered services designed to improve outcomes for their children. (Page 74)

33. This Committee recommends that professionals who meet with children experiencing parental separation recognize that a child’s wish not to have contact with a parent could reveal a significant problem and should result in the immediate referral of the family for therapeutic intervention. (Page 74)

34. This Committee recommends that the federal, provincial and territorial governments work together to ensure the availability of supervised parenting programs to serve Canadians in every part of Canada. (Page 76)

35. This Committee recommends that the Divorce Act be amended to make explicit provision for the granting of supervised parenting orders where necessary to ensure continuing contact between a parent and a child in situations of transition, or where there is clear evidence that the child requires protection. (Page 76)

36. This Committee recommends that the provincial and territorial governments require child protection agencies to provide disclosure of records of investigations to court-appointed assessors examining families who have been the subject of such investigations. (Page 77)

37. This Committee recommends that the Attorneys General of Canada and the provinces, along with police forces and police organizations, ensure that all warrants in child abduction matters provide expressly that their application and enforcement are national. (Page 84)

38. This Committee recommends that the Attorney General of Canada work to develop a coordinated national response to the problem of child abduction within Canada. (Page 84)

39. This Committee recommends that the unilateral removal of a child from the family home without suitable arrangements for contact between the child and the other parent be recognized as contrary to the best interests of the child, except in an emergency. (Page 84)

40. This Committee recommends that a parent who has unilaterally removed a child not be permitted to rely on the resulting period of sole care and control of the child, of whatever duration, as the basis for a sole parenting order. (Page 84)

41. This Committee recommends that the federal government implement the recommendations of the Sub-Committee on Human Rights and International Development of the House of Commons Standing Committee on Foreign Affairs and International Trade entitled International Child Abduction: Issues for Reform. (Page 84)

42. This Committee recommends that the Minister of Foreign Affairs and the Passport Office continue to examine ways to improve the identification of minor children in travel documents and consider further the advisability of requiring that all children be issued individual passports. (Page 84)

43. This Committee recommends that, to deal with intentional false accusations of abuse or neglect, the federal government assess the adequacy of the Criminal Code in dealing with false statements in family law matters and develop policies to promote action on clear cases of mischief, obstruction of justice or perjury. (Page 90)

44. This Committee recommends that the federal government work with the provinces and territories to encourage child welfare agencies to track investigations of allegations of abuse made in the context of parenting disputes, in order to provide a statistical basis for a better understanding of this problem. (Page 93)

45. This Committee recommends that the federal government engage in further consultation with Aboriginal organizations and communities across Canada about issues related to shared parenting that are particular to those communities, with a view to developing a clear plan of action to be implemented in a timely way. (Page 97)

46. This Committee recommends that the federal government include as the basis for such consultations the family law-related recommendations of the Royal Commission on Aboriginal Peoples and work toward their implementation as appropriate. (Page 98)

47. This Committee recommends that sexual orientation not be considered a negative factor in the disposition of shared parenting decisions. (Page 99)

48. This Committee recommends that the Minister of Foreign Affairs work toward the signing and ratification as soon as possible of the 1996 Hague Convention on Jurisdiction, Law Applicable, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children. (Page 101)

   
 
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