Profile of child-related family law cases in civil court, 2011/2012

by Mary Allen

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Families in Canada have been changing in the past 45 years since the first federal divorce law was enacted. While the typical family still consists of two parents and their children, many children experience something different. The 2011 Census found that about 30% of children aged 14 and under lived in either stepfamilies or lone parent families (Statistics Canada 2012b). According to the 2011 General Social Survey (GSS), about 20% of Canadians had been separated or divorced at some point in the preceding 20 years. Over a third of these individuals (38%) had children 18 years of age or under at the time.

Separating families have to determine who will make decisions about their children (legal custody), where children will live (physical custody) and when and how they will split their time with their parents (physical custody and access). Moreover, arrangements have to be made to confirm who will pay to support their children and how much they will have to pay (child support). For many of these issues, families may have to turn to the family justice system and the civil courts for solutions.

Family law cases involving children are a particular concern for Canadians and Canadian policy-makers who want to reduce the impact of family breakdown on the children involved. The federal and provincial governments have worked together for many years to improve family justice policies and services with a focus on children (Department of Justice 2009).  Since 2009, the federal “Supporting Families Experiencing Separation and Divorce Initiative” has provided funding to support various provincial and territorial family justice services such as mediation, parent information programs and support to help families develop agreements that are in the best interests of the child (Department of Justice n.d.).

In addition, family law includes cases involving child protection, where the government applies to the court to determine whether a child is in need of protection due to maltreatment (ex. physical, sexual, or emotional abuse or neglect), with the result that parents may be supervised, or children are taken into government care. For the most part, child protection cases are not connected to family breakdown situations.

This article uses information from the Statistics Canada Civil Court Survey (CCS) to examine the characteristics of family law cases related to the child-related issues of child protection, custody, access and child support in civil courts in the eight provinces and territories included in the survey. The survey does not collect data from Newfoundland and Labrador, Prince Edward Island, Quebec, Manitoba, Saskatchewan and courts in Moncton, New Brunswick.1 The report examines family and child-related cases in the overall context of the civil court system. It then provides a more focused look at cases involving at least one child-related issue, examining their complexity (if they involve multiple issues), their activity in the first year, and how they tend to progress over time.2

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Civil court activity

In 2011/2012, there were 931,324 civil court cases in the eight provinces and territories reporting to the Civil Court Survey (Table 1). Family cases represented just over one-third of civil court activity (Chart 1).3 The other two-thirds consisted of general civil actions unrelated to family law, including contract disputes, lawsuits for injury or damage, bankruptcy, and probate, among others. Lawsuits for injury or damage and contract disputes were the most common issues in non-family civil court cases.

Chart 1 Distribution of civil court cases by type, 2011/2012

Description for chart 1

Just over half (53%) of all civil court cases were newly initiated in 2011/2012. This proportion varied from 33% of bankruptcies and 39% of lawsuits for injury or damage, which tend to stay in the system longer, to 75% of probate cases, which are dealt with relatively quickly. For cases initiated in 2010/2011, 66% of lawsuits for injury or damage (torts) were still active in 2011/2012. By comparison, only 23% of probate cases, 41% of contract disputes, and 53% of bankruptcies were active into a second year.

Since 2005/2006, there has been a decline in the total number of newly initiated civil court cases in reporting provinces and territories (down 3%).4 The number of non-family civil court cases decreased by 1%. The greatest change was in the number of bankruptcies and contract disputes, which may be affected by economic conditions. These cases peaked in 2009/2010, then fell off sharply. Also of note, between 2005/2006 and 2011/2012, the number of cases for injury or damage (torts) increased 30% and the number of probate cases rose 17%.

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Family law cases

There were 324,412 family law cases in 2011/2012 in the eight provinces and territories covered by the survey. Family law cases comprised 35% of civil court cases. As with other civil court activity, just over half of the cases (55%) were newly initiated in 2011/2012. Between 2005/2006 and 2011/2012, the number of newly initiated family cases fell by 5%.5

Text box 2
Divorce cases comprise less than half of family law cases and most are uncontested

Divorce involves the legal dissolution of a marriage and may or may not involve other family issues such as support, division of property, access and custody of children. In most cases these issues are dealt with outside of court with a separation agreement, and the application to court for the legal divorce is uncontested.

Overall, in 2011/2012, 35% of family law cases reported divorce as an issue, with or without other family or child-related issues. The majority of divorce cases were uncontested with no other issues identified. The remaining family law caseload (65%) was composed of cases not reporting divorce, but related to family breakdown (such as custody, access, or support) (about another one-third of cases) and other family law cases including child protection, adoption, enforcement of an existing order, guardianship and other family matters.6

This report provides a focus on family law cases with child-related issues (child protection, custody, access and child support), whether they involve divorce or not.

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This report examines the characteristics of family law issues directly related to children.7 For this analysis, child-related cases involve issues related to access and/or custody and child support. In addition, this analysis also provides a focus on cases involving child protection. Analysis of adoption cases is not included in the report.

Because many cases deal with more than one of these issues, child cases have been grouped into three distinct categories:

Child protection cases – all cases where child protection is identified as an issue are included in a single category. These cases may also identify additional issues usually related to access or custody.

Access and/or custody (not involving child protection) – all cases identifying access or custody as issues, but not child protection, have been grouped together as these two issues are often combined. These cases may also identify child support as an issue. Cases combining access or custody with child protection are classified as child protection cases.

Cases involving child-support only - all remaining cases related only to child support.

Child-related issues were identified in 42% of all family law cases (Chart 2). One-quarter (25%) of all family law cases reported child custody and/or access issues (without child protection). Many of these cases also identified the issue of child support. Child protection cases represented 10% of all family law cases, and cases where child support was the only child-related issue identified made up 8% of family law cases.8

Chart 2 Distribution of family cases, by type, 2011/2012

Description for chart 2

Text box 3
About one-quarter of separated or divorced Canadians have judge-ordered arrangements on child-related issues

Not all separating parents need to make use of the courts to address the issues that affect their children. According to the 2011 General Social Survey, many individuals had no written arrangement at all with respect to these issues, but had only a verbal arrangement or no arrangement at all. Some respondents had prepared written agreements on their own or with the assistance of a lawyer, and others made use of family justice services such as mediation and alternative dispute resolution (Table 2). About a quarter of respondents had a judge-ordered arrangement determining the primary residence of the children or determining child support, and 18% of respondents had a judge-ordered arrangement related to time spent with children.

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Cases involving child protection

Almost one in four child-related family law cases identified child protection as an issue

Child protection cases involve situations where the government applies to the court to determine whether a child is in need of protection due to maltreatment (ex. physical, sexual, or emotional abuse or neglect), with the result that parents may be supervised, or children are taken into government care. It is important to note that most of these cases do not involve families dealing with separation or divorce. Child protection cases represented 10% of the overall family law caseload in 2011/2012, or almost one-quarter of child-related cases (Table 3).

The number of newly initiated child protection cases fell by 22% between 2005/2006 and 2011/2012.9 This varied somewhat by province and territory, however, as Nova Scotia and Nunavut saw increases in child protection cases over this period.

Overall, while the number of newly initiated child protection cases fell between 2005/2006 and 2011/2012, in some ways they appear to have become more complex.10 In 2005/2006, 43% of newly initiated child protection cases in the five provinces and territories where historical information is available identified additional child or family related issues. By 2011/2012, this had increased to 58% (Table 4).

Over the same time period, there was also an increase in the amount of court activity reported for child protection cases. The average number of documents filed and dispositions reached in each of the first few years of the case increased over time.11 Moreover, while child protection cases were less likely than other child-related cases to be active into a second or third year after initiation, this has also been changing. The proportion of child protection cases still active in the fiscal year after initiation increased from 49% for cases initiated in 2005/2006 to 55% for cases initiated in 2010/2011 (Chart 3). While more child protection cases are extending into a second year, in 2011/2012, the vast majority of new cases reached their first disposition within the first year of the case and the average number of weeks to reach a first disposition has fallen over time.12

Chart 3 Percentage of child protection cases active in years following initiation, by year of initiation

Description for chart 3

Cases involving access or custody

There are two main issues that are addressed in cases involving custody: legal custody, or who will make decisions about a child (ex. religion, education, health); and physical custody, or where the child will reside. Legal custody can be sole, joint or split, and may involve individuals other than parents (grandparents, etc). Legal custody is separate from the determination of living arrangements (physical custody). For example, a child whose parents have joint legal custody may live most of the time with one parent or on a flexible or fixed schedule with both parents. Decisions about the child, however, would be made by both parents. For this analysis, “custody” includes both legal and physical custody.

Access cases determine how often, how long and under what conditions parents spend time with their children. Access may also determine time spent with children by a non-parent such as a grandparent.

Custody and access are the most common child issues in the civil courts. The remainder of this analysis will examine custody/access cases which did not involve child protection. In 2011/2012, these cases represented 25% of family law cases (Table 5).13 Between 2005/2006 and 2011/2012, the number of newly initiated cases identifying access or custody issues where there were no child protection issues fell by 16% (Table 6).14

In most provinces and territories, the vast majority (90% or more) of cases identifying custody and access also reported other child or family related issues, particularly child support.15

Most custody/access cases also involved multiple dispositions and had a first disposition within the first year (83%).

Most custody/access cases are active after the first year

The percentage of custody/access cases active into a second year increased from 71% for cases initiated in 2005/2006 to 81% of cases initiated in 2010/2011 (Chart 4). There was a similar increase in the percentage of cases active in the third year, but there was no change over time in the proportion of cases still active in the fourth year (20%) or later. This ongoing case activity can be a common part of the lifecycle of separated families. Issues related to custody and access, and especially support, may be revisited some time after the initial separation or divorce, with changes in family situation or income. Court activity reported years after initiation may, therefore, be cases returning to court to revise or amend agreements rather than ongoing, unsettled cases.

Chart 4 Percentage of custody/access cases active in years following initation, by year of initiation

Description for chart 4

Although there was an increase over time in the proportion of custody/access cases active in the system after the first year, this does not necessarily mean that the system was moving more slowly. Cases initiated in more recent years reported more documents filed and more dispositions reached in each of the first three years of the case.

Cases involving child support only

While access and custody are issues which are often identified together in child-related cases, child support is more likely to be the sole issue identified in a case. Access and custody issues are often raised and resolved at the time of the initial separation or divorce, whereas child support may be revisited as the financial requirements for children and the financial resources of parents change over time. For example, changes (up or down) in the income of the paying parent may have an impact on child support amounts. Similarly, issues related to post-secondary education of children may be raised several years after separation or divorce when actual costs and requirements are identified. Such situations may result in a return to court, or in some cases, a first-time application to court.

Overall, 20% of the family law caseload in 2011/2012 identified issues of child support. The remainder of this section looks only at cases where child support was the only child issue reported. These represent 8% of family cases overall, but varied by province and territory. While this category is defined as having no other child-related issues, most of these cases (71%) did involve other family-related issues such as spousal support or property issues (Table 7).

Overall, 73% of the 2011/2012 caseload identifying child support as the sole child issue had at least one disposition within the first year.16

While child support cases do tend to be active in the system after the first year, they are less likely to stay active than custody/access cases (which are more likely to involve multiple issues) (Table 8). For child support (only) cases initiated in 2005/2006, about 70% were still active in the second year, almost 30% were active in the third year and about 15% were active in the fourth year after case initiation (Chart 5). Unlike child protection and custody/access cases, the percentage of child support cases active in the second year did not increase over time.

Chart 5 Percentage of child support (only) cases active in years following initation, by year of initiation

Description for chart 5

As with other child cases, there was a small increase between 2005/2006 and 2011/2012 in the number of documents filed and in the number of dispositions reached in the first year of the child support case.

Legal representation

Parents can turn to lawyers and other family justice professionals to assist them with child-related issues, whether or not they go to court. For example, according to the 2011 General Social Survey, 23% of individuals who had separated or divorced in the previous twenty years and still have children living with them had prepared written agreements related to child support using lawyers, but without going to court or using other family justice services. Another 12% made use of family justice services and 25% had judge-ordered arrangements (Table 2).

Not all parties who go to court make use of lawyers. Information from the Civil Court Survey on the use of legal representation is only available for Nova Scotia. It shows that, for cases initiated in 2011/2012, there was no legal representation in 40% of new cases related to child custody or access, nor in 55% of new cases related to child support only (Table 9). Applicants, those who initiated the case, were more likely to be represented than defendants.

In the case of child protection, where the government is usually the applicant, 60% of cases had legal representation for all parties within the first year and only 2% did not report legal representation for any party.

While 44% of new child-related cases in Nova Scotia in 2011/2012 reported legal representation for both parties, 66% of child-related cases over one year old (initiated prior to 2011/2012) reported that both parties had had legal representation at some point in the case.

Summary

This article examines family law cases where child issues were identified in 2011/2012 and looks at trends in such cases since 2005/2006. Almost half of the family law caseload in 2011/2012 was made up of cases involving issues of child protection, access, custody or child support. An increasing number of these cases, especially child protection and custody and/or access reported multiple child or family issues. Between 2005/2006 and 2011/2012, there was an increase in court activity in child-related family law cases such as the filing of documents and the number of dispositions. At the same time, however, the large majority of child cases of all types reached a first disposition within the first year.

Survey descriptions

Civil Court Survey

In 2011/2012, the Civil Court Survey (CCS) included data for Nova Scotia, New Brunswick, Ontario, Alberta, British Columbia, Yukon, Northwest Territories and Nunavut. These provinces and territories represented 68% of the Canadian population (Statistics Canada 2012a). Data for New Brunswick does not include Moncton. Moncton represents approximately 25% of the cases in the Family Division for New Brunswick. This may have an impact on the overall New Brunswick results.

Coverage for the survey has evolved over the years as new provinces and territories start to report. As a result, analysis of historical trends is limited to the five provinces and territories for which full data are available from 2005/2006 to 2011/2012: Nova Scotia, Ontario, British Columbia, the Yukon, and Nunavut (representing 54% of the Canadian population).

The trend analysis in this report looks at the characteristics of cases by year of initiation in order to examine the progression of cases from initiation onward. The trend analysis does not, therefore, provide a profile of the full caseload in any given year. The report does not track the activity of individual cases over time as they drop in and out of the court system as issues are resolved, or as new issues arise and require a return to court. For part of the report (Table 4, Table 6 and Table 8), this analysis uses a “synthetic cohort” approach which looks at cohorts of cases based on the year of case initiation and examines the activity of cases by cohort in the first year of initiation and for each year following initiation.

Data for the Civil Court Survey are based on the administrative records of the civil court systems in the eight provinces and territories listed above. The collection of data is from administrative records stored in 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 for all provinces and territories. For example, complete information is not available on custody or support judgments (type of custody or amount of support awarded). In particular, some provinces and territories may not be able to provide full information on secondary issues for a case. For example, information related to issues such as custody, access, support and property, may not always be available from the court information systems and, as such, may be under reported. The degree of under reporting is unknown. Information is provided by province and territory to support analysis of individual provinces or territories. However, comparisons of data by province and territory are not recommended.

Measures of court activity: Although there are a variety of events which determine whether a case remains “active”, this analysis focuses on the number of dispositions and documents filed. A disposition is a court event which disposed of all or part of a case. Dispositions include judgments, settlements, stays, dismissals, and transfers to other courts. The number of documents filed includes any document filed or registered with, or issued by, the courts. Documents include applications, statements of claim, statements of defense and counterclaims, separation and support agreements, parenting plans, mediation reports and financial statements, court orders and divorce certificates.

Dispositions in Ontario include outcomes from mandatory information programs (sessions that provide parties with information about separation and divorce and family law issues, as well as the legal process and alternatives to litigation) implemented across all court locations beginning in June 2010 and completed as of September 2011. This has an impact on data for 2011/2012.

General Social Survey

Additional information on the nature of family arrangements for child issues is based on data from the 2011 General Social Survey. The General Social Survey (GSS) is a telephone-based household survey, which collects data on social trends in order to monitor changes in Canadian society over time and provide information on specific social issues of current or emerging interest. The 2011 survey collects information on: conjugal and parental history (chronology of marriages, common-law unions and children), family origins, children's home leaving, fertility intentions as well as work history and other socioeconomic characteristics.

Detailed data tables

Table 1 Active civil courts cases, by type and selected province and territory, 2011/2012

Table 2 Type of arrangement for issues related to children in separated and divorced families, 2011

Table 3 Profile of active child protection cases, by selected province and territory, 2011/2012

Table 4 Profile of new child protection cases, by year of initiation, selected provinces and territories, 2005/2006 to 2011/2012

Table 5 Profile of active custody/access cases, by selected province and territory, 2011/2012

Table 6 Profile of new custody/access cases, by year of initiation, selected provinces and territories, 2005/2006 to 2011/2012

Table 7 Profile of active child support (only) cases, by selected province and territory, 2011/2012

Table 8 Profile of new child support (only) cases, by year of initiation, selected provinces and territories, 2005/2006 to 2011/2012

Table 9 Use of legal representation for child-related cases in Nova Scotia, 2011/2012

References

Department of Justice. n.d. The Supporting Families Experiencing Separation and Divorce Initiative. Last updated 28 August, 2012. Ottawa. (accessed 20 September 2012).

Department of Justice. 2009. Summary of Activities for the Child-centred Family Justice Fund, 2003-2009. Ottawa. (accessed December 12, 2012).

Statistics Canada. 2012a. “Population and dwelling count highlight tables, 2011 Census.” Census: Population and Dwelling Counts. Statistics Canada Catalogue no. 98-310-X. (accessed December 3, 2012).

Statistics Canada. 2012b. “Portrait of families and living arrangements in Canada.” Census: Families, Households and Marital Status. Statistics Canada Catalogue no. 98-312-X. (accessed November 13, 2012).

Notes

  1. Moncton represents approximately 25% of the cases in the Family Division for New Brunswick.
  2. For this analysis, the measures of court activity examined are the number of documents filed and dispositions reached, as well as time to first disposition. A disposition is a court event which disposes of all or part of a case. In child-related cases, especially those with multiple issues, there is often more than one disposition.
  3. Family cases include all cases identifying issues related to separation and divorce, including child custody, access and support, as well as child protection, adoption, parentage, guardianship, estate matters, etc.
  4. All trend analysis in this report is based on the number of newly initiated cases and, as such, does not represent trends in the total caseload. Moreover, it is limited to the five provinces and territories for which historical information is available: Nova Scotia, Ontario, British Columbia, Yukon and Nunavut. The number of new cases differs by province and territory, particularly for family cases. This may be due to differences in the administration of cases in the different jurisdictions. In some provinces and territories, for example, a family may be issued a new case number when/if they return to court, or the return to court may be treated as a continuation of the original case.
  5. See note 4.
  6. These may include cases where information on divorce was unavailable.
  7. Child-related cases are defined in terms of issues identified in the case record (child protection, access, custody, child support). Other family law cases may involve families with children, but information on family composition and the number of children is not always available.
  8. In some cases, and in some provinces and territories, complete information on all issues related to a case is not reported, but only the primary issue (ex. child protection or divorce). For this reason, the number of cases identifying child issues may be under-reported.
  9. All trend analysis in this report is based on the number of newly initiated cases and, as such, does not represent trends in the total caseload. Moreover, it is limited to the five provinces and territories for which historical information is available: Nova Scotia, Ontario, British Columbia, Yukon and Nunavut.
  10. It should be noted that some of the increase in reported issues may be related to improvements in the coverage of the data during this period.
  11. A disposition is a court event which disposed of all or part of a case. Dispositions include judgments, settlements, stays, dismissals, and transfers to other courts. The number of documents filed includes any document filed or registered with, or issued by, the courts.
  12. It is important to note that a disposition does not necessarily close a case. Cases often have more than one disposition and stay active after the first disposition. So, while most cases have a disposition in the first year, many of these continue to be active after that year.
  13. Cases where either custody or access issues (including cases combining custody/access and child protection) are reported made up 29% of family cases (including those involving child protection).
  14. All trend analysis in this report is based on the number of newly initiated cases and, as such, does not represent trends in the total caseload. Moreover, it is limited to the five provinces and territories for which historical information is available: Nova Scotia, Ontario, British Columbia, Yukon and Nunavut.
  15. In Alberta and New Brunswick, fewer cases have information available about multiple issues and the proportion of cases with only a single issue identified is much higher.
  16. See note 11.
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