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Canadian Custody and Access Provisions: A Legislative Comparison
Table of Contents | Introduction | Chart ii. of v. | Previous | Next
ii. Alternative Dispute Resolution
| PROVINCE/STATUTE | LEGISLATIVE PROVISION |
|---|---|
| Canada Divorce Act, R.S.C.1985 (2nd Supp.), c.3. |
-s. 9(2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters. |
| Alberta Domestic Relations Act, R.S.A. 1980, c. D-37. |
-s. 55(1) When parents (a) are not living together, or (b) are divorced or judicially separated, they may enter into a written agreement with regard to which parent will have the custody, control and education of the minor children of the marriage. (2) If the parents fail to reach agreement on the matters mentioned in subsection (1), either parent may apply to the Court for its decision. |
| Provincial Court Act, R.S.A. 1980, c. P-20. | -s. 31(1) If the parties to an application are in agreement respecting the matters in question, and consent to an order on the terms agreed on, the Court in its discretion may make the order without holding a hearing. |
| British Columbia Family Relations Act, R.S.B.C. 1979, c. 121. |
-s. 3 (1) The Attorney General may appoint a person to be a family court counsellor. (2) A family court counsellor (a) if he or she has knowledge of a dispute that has given or may give rise to a proceeding described in section 2 or respecting a similar family matter, may offer the parties to the dispute any advice and guidance that, in the opinion of the family court counsellor, will assist in resolving the dispute, and (b) may offer to refer parties involved in those disputes to a public or private family Counselling service or agency if, in the opinion of the family court counsellor, the service or agency is qualified to assist in resolving the dispute. (3) Subject to the law of Canada, if (a) a family court counsellor receives under subsection (2) evidence, information or a communication in confidence from a person who is a party to the proceeding, or from a child, and (b) the person who gave the evidence, information or communication to the family court counsellor under subsection (2) does not consent to the family court counsellor disclosing the evidence, information or communication, the family court counsellor must not disclose the evidence, information or communication in a proceeding in a court or tribunal, and a person must not examine the family court counsellor for the purpose of compelling him or her to disclose that evidence, information or communication. |
| Manitoba Court of Queen's Bench Act, S.M. 1988-89, c. 4, C280. |
-s. 47(1) where a judge or master is of the opinion that an effort should be made to resolve an issue otherwise than at a formal trial, the judge or master may, at any stage of the proceeding, refer the issue to a mediator. -s. 49(1) where a judge or master is of the opinion that a report of a family evaluator is required at a hearing with respect to custody or access or a related family matter, the judge or master may by order appoint a family evaluator. |
| New Brunswick The Child and Family Services and Family Relations Act, S. N. B. 1980, c. C-2.1 re-titled Family Services Act, S.N.B. 1980, c. F-2.2, as amended by S.N. B. 1996, c. 13. |
-s. 131 In any custody proceeding, whether or not brought under this Part, or in any other proceeding brought under this Part, if the court is of the opinion that any question arising might reasonably be the subject of conciliation, and that it would be in the best interests of the family to attempt to resolve the question through conciliation, the court may make an order requiring the Minister to make conciliation services available to the parties and may adjourn the proceeding for a reasonable time. -s. 131.1 Where conciliation services are made available by the Minister under section 131, the parties to the proceeding shall pay for the cost of the conciliation services in equal portions unless the court directs that one party pay the cost in total or that the parties pay the cost in unequal portions as specified by the court. |
| Newfoundland Children's Law Act, R.S.N. 1990, c. C-13, as amended by S.N. 1995, c. 27. |
-s. 26(8) sanctions custody agreements and encourages the parties to try to settle their disputes amicably with the court's assistance. -s. 37(1) upon an application for custody of or access to a child, the court, at the request of the parties, by order may appoint a person selected by the parties to mediate a matter specified in the order. (3) it is the duty of a mediator to confer with the parties, and with the children where the mediator considers it appropriate to do so, and the mediator shall try to obtain an agreement in respect of the matter. |
| Family Law Act, S.N. 1988. |
-s. 64 (similar provision as s. 26(8) of the Children's Law Act.
-s. 66(1) the court may disregard any provision in a separation agreement pertaining to the support, education, moral training or custody of or access to a child where, in the opinion of the court, to do so is in the best interests of the child. |
| Northwest Territories Family Law Act, Bill 3, assented to Oct. 16, 1997. |
-s. 6 persons who are not spouses may enter into an agreement in which they agree on their respective rights and obligations in respect of a child, including e) custody of, access to and guardianship of the estate of the child. -s. 58(1)on an application under this Act, the court may appoint a person selected by the parties to mediate any matter that the court specifies. (3) the mediator shall confer with the parties, and with the children if the mediator considers it appropriate to do so, and shall endeavor to obtain an agreement between the parties. (5) the mediator shall file with the clerk of the court a full or limited report, as the parties have decided, and shall give a copy to each of the parties. |
| Nova Scotia Infant's Custody Act, R.S.N.S., 1989, c.228. |
-s. 6 sanctions custody agreements and encourages the parties to try to settle their disputes amicably with the court's assistance. |
| Ontario Children's Law Reform Act, R.S. O. 1990, c. C.12. |
-s. 30. (1) The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. (2) An order may be made under subsection (1) on or before the hearing of the application in respect of custody of or access to the child and with or without a request by a party to the application. (3) The court shall, if possible, appoint a person agreed upon by the parties, but if the parties do not agree the court shall choose and appoint the person. (5) In an order under subsection (1), the court may require the parties, the child and any other person who has been given notice of the proposed order, or any of them, to attend for assessment by the person appointed by the order. (6) Where a person ordered under this section to attend for assessment refuses to attend or to undergo the assessment, the court may draw such inferences in respect of the ability and willingness of any person to satisfy the needs of the child as the court considers appropriate. (11) Upon motion, the court by order may give such directions in respect of the assessment as the court considers appropriate. (14) The court may relieve a party from responsibility for payment of any of the fees and expenses of the person appointed under subsection (1) where the court is satisfied that payment would cause serious financial hardship to the party. -s. 31. (1) Upon an application for custody of or access to a child, the court, at the request of the parties, by order may appoint a person selected by the parties to mediate any matter specified in the order. (2) The court shall not appoint a person under subsection (1) unless the person, (a) has consented to act as mediator; and (b) has agreed to file a report with the court within the period of time specified by the court. (3) It is the duty of a mediator to confer with the parties and endeavor to obtain an agreement in respect of the matter. (4) Before entering into mediation on the matter, the parties shall decide whether, (a) the mediator is to file a full report on the mediation, including anything that the mediator considers relevant to the matter in mediation; or (b) the mediator is to file a report that either sets out the agreement reached by the parties or states only that the parties did not reach agreement on the matter. (5) The mediator shall file his or her report with the clerk or local registrar of the court in the form decided upon by the parties under subsection (4). (7) Where the parties have decided that the mediator's report is to be in the form described in clause (4) (b), evidence of anything said or of any admission or communication made in the course of the mediation is not admissible in any proceeding except with the consent of all parties to the proceeding in which the order was made under subsection (1). (8) The court shall require the parties to pay the fees and expenses of the mediator. (9) The court shall specify in the order the proportions or amounts of the fees and expenses that the court requires each party to pay. (10) The court may relieve a party from responsibility for payment of any of the fees and expenses of the mediator where the court is satisfied that payment would cause serious financial hardship to the party. |
| Prince Edward Island Family Law Reform Act, R.S.P.E.I. 1988, c. F-3, Part II. |
-s. 3 court recognizes mediation as a means of resolution and may order parties to mediate. -s. 47 sanctions custody agreements and encourages the parties to try to settle their disputes amicably with the court's assistance -s. 49(1) the court may disregard any provision in a separation agreement pertaining to the support, education, moral training or custody of or access to a child where, in the opinion of the court, to do so is in the best interests of the child. |
| Quebec Civil Code of Quebec, S.Q. 1991, c. 64. |
-Art. 604 In the case of difficulties relating to the exercise of parental authority, the person having parental authority may refer the matter to the court, which will decide in the interest of the child after fostering the conciliation of the parties. -Art. 814.3 Except applications under article 814.9, no application that involves the interests of the parties and the interests of their children may be heard by the court if there is a dispute between the parties regarding child custody, support due to a party or to the children, the family patrimony or other patrimonial rights arising from the marriage, unless the parties have attended an information session on the mediation process and a copy of the mediator's report has been filed. -Art. 814.4 The information session on the mediation process may be held in the sole presence of both parties and a mediator. A group information session may also be held. In such a case, the session is held in the presence of at least three persons registered with the Family Mediation Service of the Superior Court and of two mediators, one of whom must be from the legal profession and the other, from another profession. -Art. 814.6 The information session bears on the nature and objectives of the mediation, the mediation process and the roles to be played by the parties and the mediator. At the conclusion of the information session, the mediator informs the parties of their right to enter into mediation with that mediator or with another mediator of their choice. If the parties fail to agree to enter into mediation or express their wish to enter into mediation with another mediator, the mediator files his report with the Family Mediation Service of the Superior Court and sends a copy to the parties. In the case of a -Art. 814.7 The mediation sessions take place in the presence of both parties and of a mediator or, if the parties agree, two mediators; other persons may be present at the mediation sessions, provided the parties agree, the mediator considers the presence of those persons necessary and they are neither experts nor advisers. The parties may, on their own initiative or at the suggestion of the mediator, suspend any session to seek advice from counsel or from any other person, according to the type of advice sought. -Art. 814.8 Either party may, at any time during mediation, terminate it without having to give reasons. The mediator must terminate mediation if he considers that to pursue it would be ill-advised. In such cases, the mediator files his report with the Family Mediation Service of the Superior Court and sends a copy to the parties. -Art. 814.9 The court may, on a motion, make, subject to the conditions it determines, any appropriate order to safeguard the rights of the parties or children during the period of mediation or during any other period it considers appropriate. -Art. 814.10 A party that has a valid reason not to attend the information session on the mediation process may state that fact to the mediator of his choice; the reason may relate, in particular, to the inequality of the power relationship, to the disability or the physical or psychological condition of the party or to the great distance between the party's residence and that of the other party. In such a case, the mediator draws up a report containing an express statement of the party concerned that the party cannot attend the information session for a valid reason, which need not be disclosed; the mediator then files his report with the Family Mediation Service of the Superior Court and sends a copy to the party having made the statement and, if the application has been filed at the office of the court, to the other party. -Art. 814.12 A party who does not attend the information session on the mediation process may, unless he files a copy of a report containing a statement that he cannot do so, be condemned to all the costs relating to the application. -Art. 814.14 The Family Mediation Service of the Superior Court pays the mediator's fees, up to the prescribed number of sessions...; otherwise, the mediator's fees are borne and paid in full by the parties. -Art. 815.2 At any time before judgment, the court, with the consent of the parties, may adjourn the hearing of the application for the period it determines, with a view to favoring either the reconciliation of the parties or their conciliation, in particular, through mediation. At the expiry of that period, the hearing is continued unless the parties expressly agree to an extension for such period as they fix. -Art. 815.2.1 (The court may adjourn the proceedings at any time and refer the parties to mediation. Mediation will be conducted for the period determined by the court, each party bearing the proportion of the mediator's fees determined by the court. At the expiry of the period, the court shall continue the hearing or fix a later date.) -Art. 827.2 Any mediation or informational session on the mediation process conducted prior to or during proceedings in family matters shall be conducted by a certified mediator.... |
| Saskatchewan Children's Law Act, S.S. 1990, c. C-8.1. |
-s. 3(3) permits the parents of a child to enter an agreement to vary their status as custodians, to specify their rights and duties and to provide access. The agreement does not require the parties to proceed through the court process and may be reached by the parties on their own or may be as a result of advice from lawyers and mediators. -s. 10(1) On an application by an applicant or respondent the court, by order, may appoint a person to mediate a matter that: a) is dealt with in the application; and b) is at issue between the parties. (2) No person shall be appointed as a mediator without that person's consent. (3) Evidence arising from anything said, of anything said or of an admission or communication made in the course of the mediation is not admissible in a proceeding except with the written consent of all parties to the proceeding in which the mediator was appointed and the mediator.(4) The court shall specify in an order made pursuant to subsection 1 the amount of the mediator's fees and expenses that each party is required to pay. (5) The court may order that one party pay all of the mediator's fees and expenses where the court is satisfied that payment would cause the other party serious financial hardship. (6) Where the mediator and the parties are unable to resolve the matter, either party, at any time after the first mediation session, may discontinue the mediation and proceed to have the matters at issue between the parties resolved by the court. -s. 11(1) It is the duty of every lawyer who undertakes to act on behalf of an applicant or respondent in an application pursuant to this Part or Part III or IV to: a) discuss with the applicant or respondent the advisability of negotiating the matters that are the subject of the application; and b) inform the applicant or respondent of the mediation facilities known to him or her the might be able to assist the parties in resolving those matters. (2) Every application presented to the court by a lawyer pursuant to this Part or Part III or IV is to contain a statement signed by the lawyer certifying that he or she has complied with subsection (1). |
| Yukon Children's Act, R.S.Y. 1986, c. 22. |
-s. 42 (1)in an application for custody of or access to a child, the court, at the request of the parties, may appoint a person selected by the parties to mediate any matter specified in the order. (3) it is the duty of a mediator to confer with the parties and endeavor to obtain an agreement in respect of the matter he is appointed to mediate. (4)(a) and (b) the mediator will either file a report on the mediation, or file with the court a report that sets out the agreement, or that states that the parties did not agree. |
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