Family court cases involving child custody, access and support arrangements, 2009/2010

By Mary Bess Kelly

Family law cases include matters such as separation, divorce, custody, access, child and/or spousal support arrangements, child protection and guardianship. These kinds of issues may be very complex, sensitive, and emotionally difficult for the individuals involved. This can be especially true for parents and children transitioning through a separation or divorce when arrangements for the care of the children need to be decided (Department of Justice, 2010).

In Canada, there are many provincial and territorial programs and services aimed at encouraging individuals to resolve their family law disputes instead of bringing their case to court. These types of services include mediation and conciliation, as well as parent education programs and family law information centres that provide support and guidance to those involved (Department of Justice, 2006). In 2006, nearly six in ten recently separated or divorced individuals made use of at least one of these services to help work through their break-up (Beaupré and Cloutier, 2007).

Some individuals turn to the civil court system to resolve their family law issues. For instance, for about one-fifth of parents with an arrangement for spending time with their children in 2006, the arrangement had been ordered as a result of a decision made during a court hearing or trial (Robinson, 2009).

As family law cases proceed through the courts, many questions surrounding the process arise. For example, how many family law cases are handled through the courts? How long does it generally take the courts to process different types of family law cases? Are there differences among specific cases, such as those involving child access, custody and support arrangements, in the court activity and time needed to address the issues?

Using data from the Civil Court Survey, this article examines family law cases within the civil court system in order to more closely examine the key questions mentioned above. It is important to note that collection of the Civil Court Survey data is in its early stages of development and is limited to information available from the court operational systems used in seven reporting provinces and territories (Nova Scotia, Ontario, Alberta, British Columbia, Yukon, Northwest Territories and Nunavut) representing 66% of Canada's population.1 Information related to the types of issues involved in family cases, such as child access, custody and support, may not be fully captured by these systems and, as such, data presented in this article may represent an undercount of these matters. In addition, differences in how cases are processed in the provinces and territories may impact results.

Structure of the family court system

In Canada, responsibility for the civil court system is divided between the federal and provincial/territorial governments.2 As such, family law cases may be handled by different levels of court. Cases related to federal statutes, such as divorce cases, as well as property matters, are heard under superior level, also referred to as Section 96 courts, while most other family law matters, such as child custody, access and support are usually dealt with by provincial or territorial courts.

Some provinces have unified family courts which permit all aspects of family law to be dealt with in a single court.3 The unified family courts are presided over by superior court judges, who hear matters of both federal and provincial/territorial jurisdiction. This approach permits all aspects of family matters to be dealt with in an integrated manner and eliminates the necessity of going before different courts to settle related matters (Department of Justice, 2005).

Small increase in family law cases in 2009/2010

In 2009/2010, family law cases accounted for just over one-third (35%) of all civil court cases in the seven reporting provinces and territories, ranging from 34% in Ontario to 76% in Nunavut (Table 1). The remaining civil court caseload involved civil actions, such as bankruptcy, probate matters and other claims involving money.

The active family court caseload, composed of both new cases initiated during the year and cases ongoing from a previous year, grew slightly (+1%) in 2009/2010 to almost 330,000 cases (Table 1). Increases were seen in all but two of the reporting jurisdictions, namely British Columbia and the Northwest Territories. 

The increase in active cases in 2009/2010 was the result of new cases initiated throughout the year. Nearly 180,000 new family law cases were initiated in 2009/2010, an increase of 2% from the year before (Table 1). The number of new cases was higher than the year before in all reporting provinces and territories with the exception of the Northwest Territories. New cases represented over one-half (54%) of all active family cases, although the proportion varied among the provinces and territories, ranging from 37% in British Columbia to 79% in Nunavut.

Divorce and other family breakdown most common types of family law cases

Together, divorce and other family breakdown cases compose the majority of family law cases. In the seven reporting provinces and territories in 2009/2010, divorce cases accounted for just over one-third (35%) of all family court cases4 (Table 2, Chart 1). These types of cases are dealt with under the federal Divorce Act legislation and may involve corollary issues such as custody, access and child and spousal support arrangements, as well as decisions involving the division of marital property.5

Another 35% of family court cases in 2009/2010 involved other family breakdown cases dealt with under provincial or territorial legislation. These cases addressed issues of custody, access, support or division of property outside of a divorce proceeding such as cases of separation or those deciding arrangements for a child born outside a union.6

Chart 1
Family court cases, by type of case, 2009/2010

Data table for chart 1

Chart 1 Family court cases, by type of case, 2009/2010

1. Refers to family court cases that had activity or were initiated during the year.
2. Refers to cases that addressed issues of custody, access, support or division of property outside of a divorce proceeding such as cases of separation or those deciding arrangements for a child born outside a union. Additionally, the category includes cases that may also have involved other issues, such as child protection, civil protection or guardianship.
3. Includes, for example, cases involving adoption, child protection, civil protection, enforcement, family estate matters and those categorized as "other family". Cases involving only "other family" matters represent 49% of this category.
Note: Excludes data from Newfoundland and Labrador, Prince Edward Island, New Brunswick, Quebec, Manitoba and Saskatchewan due to the unavailability of data. Information related to separation, custody, access, support (child and/or spousal and/or other) and/or division of property may be under reported due to data limitations. Some cases under the "Other" or "Unknown" categories may have involved these issues, but they have not been identified in the survey data.
Source: Statistics Canada, Canadian Centre for Justice Statistics, Civil Court Survey.

The remaining 30% of family court cases involved adoption, child protection, civil protection, enforcement of an existing order, guardianship and other family matters that that did not involve family breakdown (Table 2).7

Half of all divorce and other family breakdown cases still active more than one year later

The following sections focus on cases involving family breakdown, more specifically, cases involving divorce as well as those outside of a divorce proceeding involving custody, access, child and spousal support arrangements and property decisions.

In 2009/2010, about half (51%) of all active divorce and family breakdown cases in the reporting provinces and territories had been initiated more than one year earlier.8 The other half (49%) were new cases initiated that year (Chart 2).

Chart 2
Divorce and other family breakdown court cases, by time since initiation, 2009/2010

Data table for chart 2

Chart 2 Divorce and other family breakdown court cases, by time since initiation, 2009/2010

1. Refers to court cases that had activity or were initiated during the year. Percentages exclude cases where time since initiation is unknown.
Note: Excludes data from Newfoundland and Labrador, Prince Edward Island, New Brunswick, Quebec, Manitoba and Saskatchewan due to the unavailability of data. "Other family breakdown" refers to cases that addressed issues of custody, access, support or division of property outside of a divorce proceeding such as cases of separation or those deciding arrangements for a child born outside a union.
Source: Statistics Canada, Canadian Centre for Justice Statistics, Civil Court Survey.

The length of time since initiation for divorce and family breakdown cases varies among the reporting provinces and territories (Table 3).9 For example, the proportion of cases initiated more than four years earlier ranged from 2% of cases in the Northwest Territories to over 20% in Yukon, British Columbia and Nova Scotia.

Information available from the reporting provinces and territories indicates that the length of time since initiation also varies according to the particular issues involved in the family court case (Table 4).10 Those cases identifying issues involving children, such as access, custody and child support, appear to remain longer in the civil court system. More specifically, 75% of divorce cases with issues related to children had been active for more than one year, compared to 46% for divorce cases with no issues involving children.

Divorce cases involving both child access and child and/or spousal support were shown to have the highest proportion of cases remaining in the civil court system for more than four years (32%) (Table 4).

Support is most common issue for lengthy divorce and other family breakdown cases

The most common issue for divorce and other family breakdown cases involving children that have been proceeding through court for longer periods is support. Of those cases remaining in the court system for more than four years, 84% had addressed support arrangements at some point during the life of the case. This may partly reflect cases being brought back to court over time to vary original support agreements due to a change in the circumstances of the parties involved.11

Cases dealing only with custody involve shorter periods of time in civil court system

In order to better understand how civil courts handle family law issues concerning children, the remaining sections examine cases addressing a single issue only, in other words, one of the following: custody, access or child support.12 More specifically, the average case length as well as the volume and timing of court activity are analysed.

Examining single issue cases by length of case, shows that cases involving only custody involve shorter periods of time in the court system compared to access or child support cases. In 2009/2010, cases involving only custody had been active in court for an average of about 8 months. In comparison, access cases had been active for closer to a year and a half, while child support cases had been ongoing for an average of just over two years.

Child access cases involve higher number of court events than child support or custody cases

A variety of activities or "events" take place as family law cases proceed through court. Some events, such as pre-trial hearings or conferences, move cases forward through the civil court process while others, namely adjournments, prolong the court process by postponing hearings to a later date. There are also events that involve dispositions or decisions that resolve or dispose of some or all of a case. Many of these events are considered to be "judgments", which include all decisions made by the court, including interim orders, orders and summary judgments.

Measuring the number of events that occur throughout the life of a given case is one way of measuring its complexity. These data show that child access cases tend to involve a more complex court process, or a higher number of events, compared to those involving only child support or custody (Table 5). In other words, access cases involve, on average, more pre-trial hearings, adjournments and judgments over the life of the case, compared to child support or custody cases.

Another factor related to the complexity of a case and the time needed to resolve issues is whether or not issues in the case are being contested or disputed between the parties involved. In 2009/2010, one-third (33%) of access cases were contested, the highest proportion among single issue cases (Text table 1). In comparison, about 23% of cases involving custody and 17% of child support cases were contested. 

Text table 1
Contested divorce and other family breakdown cases involving a single issue, 2009/2010
Single issue identified in case Total cases Total cases with full history1 Total contested cases2
number number percent
Child support 23,988 20,756 3,590 17
Custody 17,807 17,313 4,058 23
Access 8,549 7,974 2,608 33
1. Refers to cases where the complete case history was reported to the Civil Court Survey.
2. Refers to those cases where a Statement of Defence (the defendant's response to a claim or application) has been filed.
Note: Excludes data from Newfoundland and Labrador, Prince Edward Island, New Brunswick, Quebec, Manitoba and Saskatchewan due to the unavailability of data. "Other family breakdown" refers to cases that addressed issues of custody, access, support or division of property outside of a divorce proceeding such as cases of separation or those deciding arrangements for a child born outside a union.
Source: Statistics Canada, Civil Court Survey.

Child support and access cases take longer to reach trial than custody cases

Although most single issue cases had involved pre-trial hearings, adjournments and judgments throughout the case, the vast majority had never involved a trial (Table 5). In 2009/2010, less than 10% of each of these types of cases had involved a trial event during the case.

Of those cases that did reach the trial stage, the length of time taken differed by type of case (Text table 2). Most cases (82%) involving custody reached trial within one year, whereas about half of all access cases (53%) and child support cases (57%) reached trial within one year.13  

Text table 2
Divorce and other family breakdown cases involving a single issue with trial event, by elapsed time from case initiation to trial, 2009/2010
Single issue identified in case Cases with trial event Trial held within 1 year Trial held after 1 year or more
number percent1
Child support 1,913 57 43
Custody 1,393 82 18
Access 699 53 47
1. Percentage for "Access" excludes one case where the date of initiation was unknown.
Note: Excludes data from Newfoundland and Labrador, Prince Edward Island, New Brunswick, Quebec, Manitoba and Saskatchewan due to the unavailability of data. Calculated for those cases with trial and where the complete case history has been collected by the Civil Court Survey. "Other family breakdown" refers to cases that addressed issues of custody, access, support or division of property outside of a divorce proceeding such as cases of separation or those deciding arrangements for a child born outside a union.
Source: Statistics Canada, Civil Court Survey.

First decision in cases involving access, custody and child support usually reached within three months

Dispositions, or decisions that resolve some or all of a case, include judgments and other decisions made to settle, withdraw or dismiss a case. In the majority of single issue cases involving access, custody or child support, the first disposition (in most cases a judgment) was reached within three months (Table 6). The proportion was lower in child support cases (66%) compared to custody (85%) and access (84%) cases.  

In 2009/2010, the volume of disposition events varied among cases involving the three issues (Table 7). Cases involving access were found to have a higher average number of disposition events per case (3.2) during 2009/2010 than child support (2.5) or custody cases (2.0).

Summary

This article examined family law cases within the civil court system in seven provinces and territories: Nova Scotia, Ontario, Alberta, British Columbia, Yukon, Northwest Territories and Nunavut. In 2009/2010, more than two-thirds of family law cases in these jurisdictions involved divorce or other family breakdown cases relating to issues of separation, custody, access, support or division of property.

Support was the most common issue handled by the courts for cases remaining in the court system for more than four years. Cases involving only access were found to involve a higher average number of pre-trial hearings, adjournments and judgments made throughout the life of the case compared to cases involving only custody or child support. Although most family law cases do not involve trials, it was found to take longer for a trial to be reached in cases involving access and child support than custody cases.

Data sources

Civil Court Survey

The objective of the Civil Court Survey (CCS) is to develop and maintain a national database of information on civil court events and cases. The survey is intended to be a census of all civil court activity in Canada. It collects microdata on court events at both the superior and provincial and territorial court levels. Appeal courts, federal courts (e.g., Tax Court of Canada) and the Supreme Court of Canada are out of scope for this survey.

Data limitations

In 2009/2010, seven provinces and territories (Nova Scotia, Ontario, Alberta, British Columbia, Yukon, Northwest Territories and Nunavut) reported to the Civil Court Survey. The collection of data is from administrative records stored in the civil court automated information systems. Given that the data are derived from records originally kept for non-statistical purposes, complete survey information is not always available. Of note for this article is the fact that information related to corollary issues, such as custody, access and child support may be under-reported. The degree of under-reporting is unknown and findings are limited to family cases where the information is available. Given that the data collection methodology requires the existence of detailed operational information systems that have not yet been developed in all jurisdictions, it will take time for the survey to achieve full coverage.

Reference and collection period

The reference period is the 12-month fiscal period between April 1st and March 31st. Data are collected quarterly in the month following the end of the quarter (July, October, January and April).

Detailed data tables

Table 1 Family court cases, selected provinces and territories, 2005/2006 to 2009/2010

Table 2 Family court cases, by type of case, selected provinces and territories, 2009/2010

Table 3 Divorce and other family breakdown court cases, by time since initiation, selected provinces and territories, 2009/2010

Table 4 Divorce and other family breakdown court cases, by time since initiation, 2009/2010

Table 5 Divorce and other family breakdown cases involving a single issue, by average number of events over length of case, 2009/2010

Table 6 Divorce and other family breakdown cases involving a single issue by elapsed time from case initiation to first disposition, 2009/2010

Table 7 Number of disposition events for divorce and family breakdown cases involving a single issue, by type of issue and type of disposition, 2009/2010

References

Beaupré , Pascale and Elisabeth Cloutier. 2007. Navigating Family Transitions: Evidence from the General Social Survey. Statistics Canada Catalogue no. 89-625-XWE. Ottawa, Ontario. (accessed November 23, 2010).

Department of Justice Canada. 2002. Final Federal-Provincial-Territorial Report on Custody and Access and Child Support: Putting Children First. (accessed November 23, 2010).

Department of Justice Canada. 2005. Canada's Court System. Catalogue no. J2-128/2005. (accessed November 23, 2010).
 
Department of Justice Canada. 2006. Department of Justice Inventory of Government-Based Family Justice Services. Family, Children and Youth section. Ottawa. (accessed November 10, 2010).

Department of Justice Canada. 2010. The Supporting Families Experiencing Separation and Divorce Initiative. (accessed November 23, 2010).

Robinson, Paul. 2009. Parenting after separation and divorce: a profile of arrangements for spending time with and making decisions for children. Statistics Canada Catalogue no. 85-002-X, Vol. 29, no. 4. (accessed Novermber 23, 2010).

Notes

  1. Excludes Newfoundland and Labrador, Prince Edward Island, New Brunswick, Quebec, Manitoba and Saskatchewan due to the unavailability of data.
  2. The administration of civil courts is primarily a provincial/territorial responsibility and the structure and operation of the courts vary from one jurisdiction to another. For example, in Nunavut, there is no territorial court. Matters that would normally be heard at that level are heard by the Nunavut Court of Justice, a superior court. These types of differences have an impact on the survey results and means that any comparisons between jurisdictions should be made with caution.
  3. Two of the seven provinces that report to the Civil Court Survey, Nova Scotia and Ontario, have some regions of the province served by unified family courts.
  4. Proportions exclude "unknown" family case types.
  5. Property issues are generally dealt with at the same time as divorce proceedings but under provincial/territorial family law legislation. Custody, access and support issues may also be determined under provincial/territorial legislation within divorce proceedings if the individuals involved choose to do so (Department of Justice 2002).
  6. Additionally, this category includes cases that may also have involved other issues, such as child protection, civil protection or guardianship.
  7. Cases involving only "other family matters" represented 49% of this category in 2009/2010.
  8. Time since initiation is calculated based on a fiscal year end of March 31.
  9. It is important to note that differences in how cases are processed in the provinces and territories may impact results related to "time since initiation" and comparisons between jurisdictions should be made with caution. For example, depending on jurisdictional practices, a variation of an existing order or further disputes related to the same family may either be captured under the original case file (which may distribute cases toward a longer "time since initiation") or as a new case.
  10. The data used for this analysis are collected by the Civil Court Survey from the operational systems used to register and track civil court proceedings in the reporting provinces and territories. Many of these systems do not capture the nature of corollary issues or relief sought when cases are first initiated. Information on the issues involved in family cases has been derived from activity over the life of the case, such as information on court orders, although there is often limited judgment detail available. Information related to these issues may be under-reported and findings are limited to family cases where the information is available. The degree of under-reporting is unknown.
  11. Depending on jurisdictional practices, a variation of an existing order may either be captured under the original case file or as a new case.
  12. Note that cases involving only a single issue do not represent the majority of family cases. However, in order to isolate particular aspects of cases that have issues of custody, access, or support, it was necessary to examine single issue cases (which represented about 23% of all divorce and family breakdown cases). These issues may be under-reported to the Civil Court Survey based on coverage limitations of the survey (see Note 10). Findings are limited to those cases where the information has been identified. 
  13. Calculated only for cases where the full case history was known.
  14. See Note 13.