analysis of data from the federal justice divorce file ... of alberta 2011... · “father”...
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ANALYSIS OF DATA FROM THE FEDERAL JUSTICE DIVORCE FILE REVIEW STUDY:
REPORT ON FINDINGS FOR ALBERTA, 2011
Prepared by:
Sibyl Kleiner, Ph.D. John-Paul E. Boyd, M.A., LL.B.
Lorne D. Bertrand, Ph.D. Joanne J. Paetsch, B.A.
June 2017
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TABLE OF CONTENTS List of Tables and Figures .......................................................................................................... iv Acknowledgements .................................................................................................................... vi 1.0 Introduction .......................................................................................................................1 2.0 Methodology ......................................................................................................................3 2.1 Limitations ................................................................................................................4 2.2 Language and terminology ....................................................................................4 3.0 Findings ..............................................................................................................................6 3.1 Sociodemographic characteristics .........................................................................6 3.1.1 Gender, status of legal representation, country of origin, number of children, violence, and age ......................................................6 3.1.2 Employment and earnings by gender .......................................................9 3.2 Time intervals between milestones in the divorce process ..............................10 3.3 Patterns by the presence or absence of family violence ...................................13 3.4 Orders ......................................................................................................................15 3.5 Child support ..........................................................................................................16 3.6 Parenting arrangements ........................................................................................18 4.0 Summary and Discussion ..............................................................................................24 4.1 Summary .................................................................................................................24 4.1.1 Sociodemographic characteristics ...........................................................24 4.1.2 Time intervals between milestones in the divorce process ..................25 4.1.3 Patterns by the presence or absence of family violence .......................25 4.1.4 Orders ..........................................................................................................26 4.1.5 Child support ..............................................................................................26 4.1.6 Parenting arrangements ............................................................................26
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4.2 Discussion and recommendations .......................................................................27 4.2.1 Observations and learnings from the data .............................................28 4.2.2 Questions arising from the data ...............................................................30 4.2.3 Recommendations for further research ..................................................31 References ....................................................................................................................................34 Glossary ........................................................................................................................................35
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LIST OF TABLES AND FIGURES Table 3.1.1: Selected sociodemographic characteristics of sampled cases, by gender ..................................................................................................................6 Table 3.1.2: Selected sociodemographic characteristics of sampled cases ...........................7 Figure 3.1: Number of children of the marriage .....................................................................7 Table 3.2: Reason for marriage breakdown, by whether violence is mentioned other than in statement of claim ........................................................8 Figure 3.2: Age of plaintiff, by gender .....................................................................................9 Figure 3.3: Income of parties, by income category and gender ..........................................10 Table 3.3: Women’s income, by the incomes of their spouses ..........................................11 Table 3.4: Time intervals in the divorce process, in years .................................................12 Figure 3.4: Time elapsed from filing of statement of claim to making of final divorce order, in years .................................................................................13 Table 3.5: Descriptive statistics of files reviewed, by mention of violence in court file ..............................................................................................................14 Table 3.6: First three orders in court file, by type of order ................................................15 Table 3.7: First three orders in court file, by respondents’ position on order sought ...........................................................................................................16 Table 3.8.1: Most recent child support order, women payors .............................................16 Table 3.8.2: Most recent child support order, men payors ...................................................17 Table 3.0: Residential arrangements for two eldest children in initial order .................19 Table 3.10: Decision-making arrangements for two eldest children in initial order .......19 Table 3.11: Residential arrangements for eldest child in initial order, by whether violence was mentioned .......................................................................20 Table 3.12: Child’s contact with parent without child’s primary residence (for one randomly-selected child per case) ........................................................21
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Table 3.13: Child’s contact with parent without child’s primary residence, by mention of violence (for the same randomly-selected child) ....................21 Table 3.14: Changes in primary residence arrangements between initial order and last order in file ....................................................................................22 Table 3.15: Number of parenting orders per case, by mention of violence ......................23
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ACKNOWLEDGEMENTS The authors would like to extend their appreciation to Dr. Cherami Wichmann, Senior Researcher, Department of Justice Canada, and to Ms Diane Shearer, Senior Manager, Resolution and Court Administration Services, Alberta Justice and Solicitor General, for providing the Institute with the data analyzed for this report as well as important background information regarding the Federal Justice Divorce File Review Study. We also thank the Department of Justice Canada, the Alberta Court of Queen’s Bench and Alberta Justice and Solicitor General for generously granting the Institute access to the data. The primary research and analysis for this report was undertaken by Dr. Kleiner through the Institute’s visiting scholars program. The Richard Weiler Visiting Scholars Program allows academics and practitioners working in the area of law and the family to visit Calgary and work with the Institute in a collaborative research program during sabbatical and other leaves. The Institute is indebted for the significant contributions made by Dr. Kleiner during her tenure. The Canadian Research Institute for Law and the Family gratefully acknowledges the ongoing support of the Alberta Law Foundation.
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1.0 INTRODUCTION The Department of Justice Canada’s Family, Children and Youth (FCY) Section is responsible for policy development in several areas related to family justice including marriage and divorce, child and spousal support, child custody and access, and family violence. The FCY Section also had responsibility for conducting or overseeing research that provided an empirical foundation on which policy development could be based. The national Federal Justice Divorce File Review Study was part of the FCY Section’s Child-Centred Family Justice Strategy, launched in 2003 as part of a broader effort to obtain data on families and children who have gone through divorce. The aim of the Study was to generate detailed information on the process and outcomes of Canadian divorce proceedings in cases involving children. Toward this end, trained personnel gathered and coded highly detailed data from divorce files in courts across Canada. The file information collected included data on:
a) parenting arrangements and the application of best interests criteria;
b) arrangements for the payment of child and spousal support;
c) the extent of any conflict between the parties and the presence of family violence; and,
d) the initial positions of the parties on the issues in dispute, and the nature of the final resolution of those issues.
The data collected for the Federal Justice Divorce File Review Study focused on oversampling cases that had “multiple actions on the file,” and thus were viewed as more complex. The final data set for this study therefore likely included a higher proportion of complex files than would be expected if files were selected for inclusion on a random basis. The Canadian Research Institute for Law and the Family obtained Study data gathered in 2011 and 2012 from the Calgary registry of the Alberta Court of Queen’s Bench, with the goal of examining several dimensions of the divorce process when children are involved. The issues examined encompass sociodemographic characteristics, including socioeconomic patterns by gender and within divorcing couples; legal milestones in the divorce process; child support and child custody arrangements; and the exploration of
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patterns according to whether family violence was mentioned at any point in the divorce process. The data analyzed in this report present a snapshot of the characteristics and timelines of the divorce cases reviewed. A number of interesting conclusions, and recommendations for further research, flow from our analysis, particularly when the data are analyzed by gender and by whether the court files mention family violence.
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2.0 METHODOLOGY
The Federal Justice Divorce File Review Study was initiated by the Family, Children, and Youth (FCY) Section of the Department of Justice Canada (DOJ), and included three waves of data collection conducted in 2005, 2008, and 2011. The Study was part of a broader effort to obtain data on families and children who have gone through divorce, dovetailing with the five-year Supporting Families Initiative begun on 1 April 2009, aimed at building upon previous federal and provincial/territorial collaborations in the area of family justice and encouraging compliance with family obligations in areas such as financial support and parenting of children. Data collection for the Study was planned and undertaken through a collaborative effort between FCY Section researchers and the Research Subcommittee of the Coordinating Committee of Senior Officials. A coding manual for the third wave of data collection for the Study was prepared in November 2011. The personnel responsible for gathering data from the court files completed two days of training conducted by the DOJ Project Officer. This training included learning the coding manual, gaining familiarity with case files, and an intercoder reliability test of the first five files coded, with the Project Officer’s codes used as the comparison. In accordance with DOJ ethics guidelines, no identifying information, such as names or addresses, was collected from the files. Sampling criteria for the third wave of the Study included files closed in the previous four years, from mid-2007 to mid-2011, that included children under the age of 18 and in which a divorce order had been issued. Study personnel pulled files meeting these criteria to code, and were also instructed to oversample “thicker” files that had “multiple actions on the file,” and were thus more likely to be complex or involve a higher degree of conflict between the parties. Detailed data were collected from each court file for approximately 2,000 variables (including data coded for multiple orders within a case), capturing a broad range of information on each divorce case. Teleform optical mark and character recognition software was used to enter hand-coded data electronically, from as many as seven forms per file. The third wave of quantitative data from the Calgary registry of the Alberta Court of Queen’s Bench was provided to the Canadian Research Institute for Law and the Family for analytical purposes in 2015. For the present report, data derived from four of seven file coding forms were analyzed. These were: summary information derived from the registration of divorce proceedings form and marriage certificate; case information derived from intake forms, pleadings,
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applications and affidavits; positions of the parties derived from intake forms, pleadings, applications, affidavits and parenting statements; and, any orders on file referring to parenting arrangements. A total of 328 court files were analyzed. 2.1 Limitations Certain limitations should be noted with respect to the data presented in this report. First, given that case selection was not randomized, it should not be assumed that the files included in the Study are a representative sample of all divorce files in Alberta, and generalization to provincial or national populations cannot be made. Second, with regard to the analyses conducted related to the presence or absence of family violence, it should be noted that the absence of family violence was inferred if there was no mention of violence in the file documents reviewed. It is possible that in some of these cases, family violence was present, but was not mentioned in the file, which seems likely considering the frequency with which family violence is not self-reported (Statistics Canada, 2016). Thus, the estimate of the number of cases including family violence should be viewed as a potential underestimate, and the number of cases without family violence could be overestimated. The reader should also be aware that the level of detail coded possibly varied between files, and likely between court sites, which may have led to some missing data. Further, it is inevitable in a study such as this that some discrepancies exist between coders in terms of which data were deemed relevant and included or excluded. The intensive training received by the coders, and the determination of intercoder reliability for the first five files they reviewed, should have served to minimize any systematic differences between coders. 2.2 Language and terminology All files reviewed were divorce files involving individuals qualifying as “children of the marriage,” a term from the federal Divorce Act meaning children under the provincial age of majority, 18 years old in Alberta, or older than the age of majority but unable to withdraw from their parents’ charge. As a result, all parties in the files reviewed were both spouses as well as mothers or fathers. In this study, “mother” includes stepmother and “father” includes stepfather.
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Three of the files coded and included in this analysis concerned same-sex spouses. Coders were instructed to designate the plaintiff as the mother in those files, regardless of gender. No specific instructions were provided concerning the defendant. Study personnel coded for petitioners, the party filing a divorce petition, and respondents, the party against whom such petitions have been filed. In Alberta, claims for divorce are brought by filing a statement of claim or counterclaim for divorce. The party filing the claim is the plaintiff and the person against whom the statement of claim has been filed is the defendant. Finally, Study personnel also coded for the mention of family violence in the files reviewed, whether the violence was mentioned in connection with a party’s position on a legal issue or in passing, and whether an allegation of violence was substantiated or not. The definition of violence used in the Study was broad and included:
a) physical, sexual, verbal or emotional abuse;
b) harm or neglect of children;
c) threats of abuse;
d) self-harm and substance abuse; and
e) damage to property. Readers are cautioned to bear in mind that the coding of a file as mentioning family violence does not establish that violence occurred. Likewise, the coding of a file as not mentioning violence does not mean that violence did not occur.
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3.0 FINDINGS 3.1 Sociodemographic characteristics Sociodemographic information on the individuals involved in the divorce files sampled by the Federal Justice Divorce File Review Study was drawn from registration of divorce proceedings forms, marriage certificates, pleadings and other documents contained in the court files. This section describes the data gathered on parties’ gender, age, children, employment and earnings, legal representation and country of origin, as well as any mention of family violence in the file and the reasons provided for marriage breakdown. 3.1.1 Gender, status of legal representation, country of origin, number of children,
violence, and age Among the divorce files sampled by the Federal Justice Divorce File Review Study, most claims were initiated by women (66%), and most plaintiffs (75%) had legal representation or the assistance of a lawyer at some point in the file, according to the registration of divorce proceedings form then in use;1 see Tables 3.1.1 and 3.1.2. A substantially lower proportion of defendants (46%) than plaintiffs were reported as having legal representation. The majority of cases involved a Canadian-born spouse, although a substantial minority of spouses for whom country of birth was specified in the file were born abroad (24% of women and 29% of men).
Table 3.1.1 Selected sociodemographic characteristics of sampled cases,
by gender
Men Women n
Genderofplaintiff 33.9% 66.1% 327Genderofdefendant 66.1% 33.9% 327BorninCanada 71.4% 75.6% 283/291Employedoutsidethehomewhendispositionofdivorceclaimrecorded
92.5% 82.8% 268/273
Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328
1 The registration of divorce proceedings form was repealed and replaced by a simplified form soliciting fewer data in September 2013.
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Table 3.1.2 Selected sociodemographic characteristics of sampled cases
Minimum Maximum n
Plaintiffrepresentedbycounsel 75.4% 313Defendantrepresentedbycounsel 45.9% 314Numberofchildrenofthemarriage 1.7 1 9 324Familyviolencementionedinfile 14.6% 328Ageofplaintiffwhendispositionofdivorceclaimrecorded
40.1 22 60 327
Ageofdefendantwhendispositionofdivorceclaimrecorded
41.1 21 61 324
Women’sincome $44,029.80 $0.00 $465,500.00 306Men’sincome $81,606.80 $0.00 $878,353.00 299
Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328 All divorcing couples in this study had at least one child as a result of the sample selection process, and the average number of children of the marriage was 1.7. Figure 3.1 shows the number of children of the marriage according to the registration of divorce proceedings form. Most divorcing couples had either one child (48%) or two children (40%).
Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328; Missing cases=4
47.5
40.4
10.2
0.9 0.6 0.30
10
20
30
40
50
One Two Three Four Five Nine
Percen
tage
Figure 3.1Number of children of the marriage
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Just under 15% of case files included at least one reference to family violence made by the plaintiff, by the defendant, or by both; see Table 3.1.2. This reference could include cruelty cited as the ground of marriage breakdown under s. 8(2)(b)(ii) of the Divorce Act, or any other mention of violence noted in the file. Table 3.2 shows the reasons alleged for marriage breakdown, by whether or not violence is referenced other than in the statement of claim for divorce.2 In several cases, the reasons given for marriage breakdown do not include cruelty, but violence is mentioned elsewhere in the file; in other cases, physical or mental cruelty is alleged as a reason for marriage breakdown, but the coder did not indicate that violence was mentioned elsewhere in the file. The most common reason for marriage breakdown was separation for not less than one year, cited in 96% of cases that did not mention violence, and in 80% of the cases where family violence was mentioned elsewhere in the file.
Table 3.2 Reason for marriage breakdown,
by whether violence is mentioned other than in statement of claim Whetherviolencementionedotherthanin
statementofclaimReasonformarriagebreakdown No Yes
n % n %
Separationfornotlessthan1year 274 95.5 32 80.0
Adultery 0 0.0 2 5.0
Physicalcruelty 1 0.3 0 0.0Mentalcruelty 3 1.0 0 0.0Bothseparationandmentalcruelty 4 1.4 3 7.5
Bothseparationandadultery 5 1.7 2 5.0
Separation,adulteryandmentalcruelty 0 0.0 1 2.5
Total 287 100.0 40 100.0Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328 The average age of the plaintiff at the time of the divorce was 40 years, and the average age of the defendant was 41 years; see Table 3.1.2. However, spouses ranged in age
2 Pursuant to s. 8(1) of the federal Divorce Act, the sole ground of divorce is marriage breakdown. Under s. 8(2), marriage breakdown may be established by proof that: the spouses have lived separated and apart for at least one year; the defendant spouse has committed adultery; or, the defendant spouse has treated the plaintiff with physical or mental cruelty “of such a kind as to render intolerable the continued cohabitation of the spouses.”
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from their early 20s to their early 60s, with women tending to be younger at the time of divorce than men. Figure 3.2 shows the age ranges of the women and men in the sample who filed statements of claim for divorce at the time of the disposition of their claims for divorce.
Source of data: Federal Justice Divorce File Review Study, 2011Total N=328; women, n=215; men, n=111 3.1.2 Employment and earnings by gender At the time of the divorce, both spouses were likely to be employed outside the home (83% of women, 93% of men). The income of spouses, calculated within each case as the average of any income information recorded for that file, differed dramatically by gender. As shown in Table 3.1.2, men’s average income was nearly twice that of women. The income of the highest earning man ($878,353) was almost twice that of the highest earning woman ($465,500). Figure 3.3 shows the distribution of income for women and men, respectively, collapsed across a set of income categories. While most employed women fall into the lowest income categories shown ($1 to $30,000 and $30,001 to $60,000), men’s income is more dispersed. The two most common income categories for men are $30,001 to $60,000 and $90,000 to $150,000, with 20% of men falling into the latter income category, compared to 5% of women.
0
5
10
15
20
25
30
35
20-24 25-29 30-34 35-39 40-44 45-49 50-54 55-59 60-65
Figure 3.2Age of plaintiff,
by gender
Women Men
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Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328; women, n=306; men, n=299 Table 3.3 depicts frequencies for women’s income arrayed by the level of their spouses’ income. For men earning the lowest incomes ($1 to $60,000), the most common pattern (50%) is for women to fall within the same income category as the men. When divorcing men make between $30,001 and $60,000, however, a large percentage of women (42%) also fall into a lower income category than the man. At men’s income levels beyond $60,000, only a minority of women (27%) have incomes falling into a category that is comparable to or higher than that of their spouses. At men’s income levels beyond $300,000, there are no women earning comparable wages.
3.2 Time intervals in the divorce process Key milestones in the divorce process – the date of separation, the date of filing a statement of claim for divorce, the date of making of the first order in a file (whether interim or final), and the date of the divorce judgement – were used to calculate average time intervals. On average, the statement of claim was filed about three years prior to the date of data collection (2011); see Table 3.4. The most recent statement of claim had been filed one year and eight months prior to the date of data collection, while the
0
5
10
15
20
25
30
35
40
Noearnings $1- 30,000 $30,001-60,000
$60,001-90,000
$90,001-150,000
$150,001-300,000
$300,001-500,000
$500,001-700,000
$700,001-900,000
Figure 3.3Income of parties,
by income category and gender
Women Men
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Table 3.3 Women’s income,
by the incomes of their spouses Women’sincome
Spouse’sincome Noearnings $1to30,000 $30,001to60,000
$60,001to90,000
$90,001to150,000
$150,001to300,000
$300,001to500,000 Total
n % n % n % n % n % n % n % n %Noearnings 2 25.0 2 25.0 3 37.5 1 12.5 0 0.0 0 0.0 0 0.0 8 100.0
$1to30,000 5 10.4 25 52.1 14 29.2 3 6.3 1 2.1 0 0.0 0 0.0 48 100.0
$30,001to60,000 9 10.2 28 31.8 43 48.9 4 4.5 3 3.4 1 1.1 0 0.0 88 100.0
$60,001to90,000 10 17.5 17 29.8 17 29.8 9 15.8 3 5.3 1 1.8 0 0.0 57 100.0
$90,001to150,000 1 1.6 16 25.4 28 44.4 9 14.3 6 9.5 3 4.8 0 0.0 63 100.0
$150,001to300,000 7 31.8 3 13.6 4 18.2 3 13.6 3 13.6 1 4.5 1 4.5 22 100.0
$300,001to500,000 0 0.0 2 100.0 0 0.0 0 0.0 0 0.0 0 0.0 0 0.0 2 100.0
$500,001to700,000 0 0.0 0 0.0 0 0.0 0 0.0 1 100.0 0 0.0 0 0.0 1 100.0
$700,001to900,000 0 0.0 1 50.0 0 0.0 0 0.0 0 0.0 1 50.0 0 0.0 2 100.0
Total 34 11.7 94 32.3 109 37.5 29 10.0 17 5.8 7 2.4 1 0.3 291 100.0Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328; Missing cases=37
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oldest statement of claim had been filed eight years and four months prior to data collection.
Table 3.4 Time intervals in the divorce process,
in years
Milestonesindivorceprocess Mean Minimum Maximum N
Filingofclaimanddatacollectiondate 3.3 1.7 8.3 328
Dateofseparationandfilingofclaim 2.5 0.0 16.4 307
Dateofseparationanddateoffirstorder 3.2 0.0 17.6 294
Filingofclaimandfirstinterimorder 1.1 0.1 4.9 19Filingofclaimandfirstfinalorder 1.1 0.0 6.3 275
Filingofclaimanddivorceorder 1.3 0.1 6.4 319
Dateofseparationanddivorceorder 3.5 0.4 18.1 315Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328 On average, spouses had been separated for about two and a half years before the statement of claim for divorce was filed; the length of time elapsing between the date of separation and the date of the filing of the statement of claim ranged from zero to 16.4 years. The average length of time elapsing from the filing of the statement of claim to the making of the first order, whether interim or final, was a little over one year, with an average of 3.2 years elapsing between the date of separation and the making of first order. The total time elapsing between the date of filing the statement of claim and the date of the divorce judgement was 1.3 years on average. From the date of separation, the time until the divorce judgement was 3.5 years on average. Figure 3.4 illustrates the duration patterns from the date of the divorce claim to date of the divorce order. A divorce process of less than one year from the date of filing the statement of claim is relatively common (55% of cases).
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Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328; Missing cases=9 3.3 Patterns by the presence or absence of family violence A number of differences in patterns for cases mentioning family violence compared to those not mentioning family violence are evident in the data, including with respect to the length of time elapsing from the date of separation to the commencement of the divorce claim, the length of time elapsing from the date of separation to date of the divorce judgment, the spouses’ ages, the spouses’ incomes and whether the spouses were born in Canada or elsewhere; see Table 3.5. For cases with any mention of violence, the length of time between the date of separation and the date of the filing of the statement of claim tended to be shorter (1.4 versus 2.6 years). Interim orders were issued more often in cases mentioning violence than in cases in which family violence was not mentioned. A much smaller proportion of cases with no mention of violence involved interim orders (2.9%), compared to cases mentioning violence (27.1%). Cases mentioning violence also took longer to complete, as measured from the date of the filing of the statement of claim to the date of the divorce judgment (1.7 versus 1.2 years).
21.0
33.5
17.9
6.6 7.54.1 3.1 1.9 1.9 0.9 0.6 0.6 0.3
0
5
10
15
20
25
30
35
40
< .5 .5 to <1 1 to <1.5
1.5 to <2
2 to <2.5
2.5 to <3
3 to <3.5
3.5 to <4
4 to <4.5
4.5 to <5
5 to <5.5
5.5 to <6
6 to<6.5
Percen
tage
NumberofYears
Figure 3.4Time elapsed from filing of statement of claim to
making of final divorce order, in years
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Table 3.5 Descriptive statistics of files reviewed,
by mention of violence in court file
Nomentionofviolencein
courtfile
Violencementionedincourt
file
n nTimeelapsedbetween
separationandfilingofdivorce
claim(years)
2.6 262 1.4 45
Atleastoneinterimorder 2.9% 280 27.1% 48Timeelapsedbetweenfilingof
divorceclaimandfirstinterim
order(years)
1.3 8 1.1 11
Timeelapsedbetweenfilingof
divorceclaimandfirstfinal
order(years)
1.1 240 1.2 35
Timeelapsedbetweenfilingof
divorceclaimandmakingof
finaldivorceorder(years)
1.2 273 1.7 46
Femaleplaintiff 64.2% 279 77.1% 48Maleplaintiff 35.8% 279 22.9% 48Ageofplaintiffatmakingof
finaldivorceorder40.5 279 38.0 48
Ageofdefendantatmakingof
finaldivorceorder41.4 277 39.7 47
Women’sincome $44,253.80 260 $42,763.40 46Men’sincome $82,698.30 254 $75,445.90 45Womanemployedattimeof
divorce83.2% 232 80.5% 41
Manemployedattimeof
divorce92.1% 228 95.0% 40
WomanborninCanada 73.7% 251 87.5% 40ManborninCanada 70.5% 244 76.9% 39
Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328 Certain sociodemographic differences were also observed. In cases mentioning violence, a larger percentage of plaintiffs were women (77%) as compared to cases without mention of family violence (64%). The overall age of both plaintiff and defendant is lower, on average, in cases in which violence was mentioned. The average incomes of both women and men are lower in cases involving allegations of violence, although an income disparity by gender remains. Among these cases, a slightly lower percentage of women, and a slightly higher percentage of men, are employed as
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compared to cases without any mention of violence. Finally, a larger percentage of Canadian-born women (88% compared to 74%) and Canadian-born men (77% compared to 71%) were found within cases that mentioned violence. 3.4 Orders The files were coded for the number and type of orders made, “interim interim” orders, interim orders and final or “permanent” orders; see Table 3.6.3 Most cases (75.9%) only had one order in the court file at the time of data collection, while a quarter of cases (24.1%) had at least two orders in the court file and one-fifth of cases (20.1%) had three to eight orders in the court file. The most common type of initial order were final orders (95.7%), followed by interim orders (3.7%) and interim interim orders (0.6%). The most common type of order when the initial order was the only order in the file were final orders (99.6%, n=247) followed by interim orders (0.4%, n=1), suggesting that almost all of these files were unopposed divorce applications.4
Table 3.6 First three orders in court file,
by type of order
OrdertypeInitialorder Secondorder Thirdorder
n % n % n %Interiminterim 2 0.6 0 0.0 0 0.0Interim 12 3.7 4 5.1 6 16.7Final 309 95.7 74 94.9 30 83.3Total 323 100.0 78 100.0 36 100.0
Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328 The majority of all orders were made with the parties’ consent (57%, n=272). One-third of orders were uncontested (32.5%, n=155) and less that one-tenth of all orders were contested (8.2%, n=39).5 The most common types of order when the initial order was the
3 According to the coding manual for the Federal Justice Divorce File Review Study, final or permanent orders are “meant to set out longer term arrangements,” while interim orders are “meant to be in place to set out important issues temporarily, until a more permanent solution is found,” in the expectation that the parties will “come back to the court for a more permanent solution before too long.” Interim interim orders “are very short term orders” that are “meant to have a very limited shelf life.” 4 In Canada, a spouse who agrees with a divorce claim brought by the other spouse cannot consent to the making of the divorce order; see Chatenay v Chatenay, [1938] 3 DLR 379 (BC SC). Instead, the divorce order will be made on an uncontested basis. Claims for other orders may be made by the spouses’ consent. 5 The four types of orders coded for are: consent orders, orders that are made with the agreement of all parties; uncontested orders, orders sought by one party that are neither agreed to nor opposed by the other
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only order in the file were orders going by consent (50.4%, n=126) and uncontested orders (48%, n=120), followed by contested orders (1.2%, n=3) and orders made without notice to the other party (0.4%, n=1). The types of the first three orders in the court files reviewed are presented in Table 3.7.
Table 3.7 First three orders in court file,
by respondents’ position on order sought
OrdertypeInitialorder Secondorder Thirdorder
n % n % n %Byconsent 171 52.1 53 66.3 25 67.6Uncontested 135 41.2 16 20.0 3 8.1Contested 15 4.6 7 8.8 7 18.9Withoutnotice 7 2.1 4 1.2 2 5.4Total 328 100.0 80 100.0 37 100.0
Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328 3.5 Child support This section describes patterns of child support orders in terms of amount and type. For purposes of this analysis, child support was reported by the most recent order in which a dollar amount for a child support order was given. Tables 3.8.1 and 3.8.2 show how average and median annual child support amounts differ by gender of the payor. About 92% of the payors in the court files reviewed were men, with women making up the remaining 8% of payors.
Table 3.8.1 Most recent child support order, women payors
Annual
amountof
support
payable
Child
supportas
percentage
ofincome
Incomenet
ofchild
support
payments
Payorgross
income
Recipient
gross
income
Numberof
children
supported
Mean $4,286 13.4% $39,836 $44,127 $102,100 1.45Median $4,032 11.3% $24,439 $27,403 $49,787 n 21 20 20 20 17 20
Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328 party; contested orders, orders sought by one party that are opposed by the other party and must be resolved by the court; and, orders made without notice to the other party, also called ex parte orders. Divorce orders cannot be consented to, and accordingly are either contested by the other party or are made on an uncontested basis.
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Table 3.8.2 Most recent child support order, men payors
Annual
amountof
support
payable
Child
supportas
percentage
ofincome
Incomenet
ofchild
support
payments
Payorgross
income
Recipient
gross
income
Numberof
children
supported
Mean $15,246 20.6% $70,804 $85,415 $43,249 1.69Median $8,280 12.8% $57,529 $67,000 $35,149 n 231 218 220 223 215 225
Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328 Annual child support amounts, as well as payors’ average incomes reported at the time of the order, differ considerably by gender. Within our sample of Albertans, men’s average annual child support payments are 256% greater than those ordered to be paid by women. Men’s average annual payments total $15,246 (n=231), compared to women’s average total annual payments of $4,287 (n=21). On average, these payments also represent a greater percentage of men’s incomes as compared to women’s incomes. However, income varies considerably among the sample population, and outliers in the data, particularly individuals with unusually high incomes or high child support obligations, can significantly skew average values in small samples. In contrast, median values represent data points falling in the midpoint of a sample, and are not influenced by outlier values. In examining median child support amounts by payor, a large gender difference still exists, but is more proportional with median income. The median annual child support obligation is just over twice as much for men ($8,280, n=231) than women ($4,032, n=21). Note that this is considerably less than the gender differences produced by using averages (men’s average child support payment is 256% higher than women’s average payment), due to the small sample sizes and presence of outliers in the data. In contrast to the calculations using averages, however, there is not a substantial gender difference in child support as a percentage of total median income (11.3% for women, n=21; 12.8% for men, n=218). As noted in the previous discussion on sociodemographic patterns, there is also a considerable gender difference between women’s and men’s incomes. Among parties paying child support, the median value for men’s annual incomes, with expected child support deducted, is 135% greater than the corresponding median for women; see Tables 3.8.1 and 3.8.2.
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Women’s and men’s median incomes were also examined according to whether the individuals were ordered to pay child support. Gender differences in median income are similar in these two groups. In the few cases where women paid child support, men’s median income was 82% greater than women’s. For cases where men paid child support, the significant majority of cases, men’s median income was 91% greater than women’s. 3.6 Parenting arrangements This final section reports on patterns of parenting arrangements with respect to the eldest two children in each file. Coders reviewed the orders on file to determine how children’s residence and responsibility for decision-making are distributed among spouses in the sample.6 In the initial orders made in 69% of these cases reviewed, the mother received the primary residence of the eldest child; in 67.9% of the cases, the mother received the primary residence of the second eldest child.7 The father received the primary residence of the eldest child in 10.6% of the initial orders in these cases, and primary residence of the second eldest child in 13% of the cases. The primary residence of the eldest child was shared in 14.2% of the cases, as was the primary residence of the second eldest child in 16.8% of the cases. While residential arrangements can be different for each child, in the substantial majority of cases sampled, primary residence did not differ between the eldest two children; see Table 3.9.
6 The federal Divorce Act, at s. 16, addresses parenting arrangements in terms of custody and access. Custody involves two major parental rights, the right to have the children’s primary residence, the home where the children live most of the time, also called “physical custody,” and the right to participate in decision-making on behalf of the children, also called “legal custody” or “guardianship.” Custody of a child can be held by only one spouse, called sole custody, in which case the spouse has sole decision-making authority and the child’s primary residence. Custody can also be held by both spouses, called joint custody. Although spouses with joint custody share responsibility for making decisions about some or all issues relating to the child, they do not always share the child’s residence. When the child’s time is divided equally or near-equally between spouses, the spouses have shared custody. Shared custody is a term borrowed from the Federal Child Support Guidelines referring to situations in which the payor of child support has the child for at least 40% of the child’s time.
According to the coding manual for the Federal Justice Divorce File Review Study, coders were to designate a spouse as having the primary residence of the child where an order gave the spouse “sole physical custody” or “primary care and control of the child,” or the child otherwise resided with that parent for more than 60% of the child’s time. Coders were to designate both spouses as having the residence of the child where the child lived “at least 40% of time with each parent, about 3 days a week.”
Coders were to record how “legal custody or decision making” was addressed in an order only if the order provided this information. 7 In this section, “mother” includes stepmother, “father” includes stepfather and “parent” includes stepparent.
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Table 3.9 Residential arrangements for two eldest children in initial court order
ResidentialarrangementEldestchild Secondeldestchild
n % n %Mother 209 69.0 125 67.9Father 32 10.6 24 13.0Sharedbybothspouses 43 14.2 31 16.8Other 1 0.3 0 0.0Nolongerchildofmarriage 18 5.9 4 2.2Total 303 100.0 184 100.0
Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328
In 30.8% of the cases reviewed, the initial order granted the mother sole responsibility for decision-making in respect of the eldest child. In 26.5% of cases, the mother had sole responsibility for decision-making in respect of the second eldest child. The father had sole responsibility for decision-making in respect of the eldest child in 10.6% of the initial orders in these cases, and sole responsibility for decision-making in respect of the second eldest child in 7.4% of the cases. Shared decision-making was the most common arrangement, and was found in respect of the eldest child in three-fifths of the cases reviewed (62.3%) and in respect of the second eldest child in two-thirds of the cases (66%). While the arrangements for decision-making can be different for each child, in the substantial majority of cases sampled, decision-making arrangements did not differ between the eldest two children; see Table 3.10.
Table 3.10 Decision-making arrangements for two eldest children in initial court order
Decision-makingarrangementEldestchild Secondeldestchild
n % n %Mother 94 30.8 43 26.5Father 21 6.9 12 7.4Sharedbybothspouses 190 62.3 107 66.0Total 305 100.0 154 100.0
Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328
In examining the residence of the eldest child by whether violence was mentioned in the court file, a few notable patterns emerge; see Table 3.11. First, mothers are more likely to be granted the primary residence of the child in these cases (85.1% compared to 66.5%). Second, shared primary residence was ordered in only one case in which
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violence was mentioned. Finally, somewhat fewer cases in which violence was mentioned refer to a child no longer being a “child of the marriage” (2.1% compared to 6.5%), which may be due to the generally younger ages of the spouses in these cases, on average; see the previous discussion on sociodemographic characteristics.
Table 3.11 Residential arrangements for eldest child in initial order,
by whether violence was mentioned
ResidentialarrangementNomentionofviolence Violencementioned
n % n %Mother 180 65.5 40 85.1Father 32 11.6 5 10.6Sharedbybothspouses 44 16.0 1 2.1Other 1 0.4 0 0.0Nolongerchildofmarriage 18 6.5 1 2.1Total 275 100.0 47 100.0
Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328
Table 3.12 shows the parenting arrangements made when one spouse has the primary residence of a child. For each of these cases, the contact arrangements were coded for one child only, chosen at the discretion of the coder. Up to three characteristics of the other spouse’s time with the child could be coded for the selected child, including the frequency of in-person and other contact, supervision requirements and holiday contact. In most cases (59.1%), contact with the other spouse was coded as “reasonable/ liberal/generous,” meaning that the child’s time with the spouse without his or her primary residence was unspecified and unscheduled. Supervision of the child’s time with that spouse was required in very few cases (3%); contact at the discretion of the child was required only slightly more frequently (4.3%). Contact as the spouses may agree was ordered much more frequently, and was required as often as contact on a set schedule (23.5%). Arrangements for the same randomly-selected child’s time with the spouse without his or her primary residence are shown separately in Table 3.13 according to whether the court file included a reference to family violence. Supervised contact was somewhat more common among cases including a mention of violence (12.5%) as compared to cases with no mention of violence in which one spouse had the child’s primary residence (1.1%). Contact on a set schedule and contact as the spouses may agree are also more common in cases mentioning family violence (39.6% and 41.7%, respectively) than in cases without such allegations (21.1% and 20.1%, respectively). In contrast,
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unspecified and unscheduled contact is far more common in cases with one spouse having the child’s primary residence that do not mention violence (62.9%) than in cases in which violence is mentioned (37.5%). Contact determined by the child is more common in cases in which violence is mentioned (8.3%) than in those cases which do not mention violence (3.6%).
Table 3.12 Child’s contact with parent without child’s primary residence
(for one randomly-selected child per case)
Characteristics n %
Reasonable,liberalorgenerouscontact 194 59.1Scheduledorspecifiedcontact 78 23.8Contactasarrangedoragreedbetweenspouses 77 23.5Contactasdeterminedbychild 14 4.3Supervisedcontact 10 3.0Changeincontactarrangementspossiblewithnotice 2 0.6Parentmayseekcontactwithchildatlaterdate 1 0.3Contactatdiscretionofparentwithchild’sprimaryresidence 1 0.3
Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328, Multiple response data
Table 3.13 Child’s contact with parent without child’s primary residence, by mention of violence (for the same randomly-selected child)
CharacteristicsNomentionofviolence Violencementioned
n % n %Reasonable,liberalorgenerouscontact 176 62.9 18 37.5Scheduledorspecifiedcontact 59 21.1 19 39.6Contactasarrangedoragreedbetween
spouses57 20.4 20 41.7
Contactasdeterminedbychild 10 3.6 4 8.3Supervisedcontact 4 1.4 6 12.5Changeincontactarrangementspossible
withnotice1 0.4 1 2.1
Parentmayseekcontactwithchildat
laterdate1 0.4 0 0.0
Contactatdiscretionofparentwith
child’sprimaryresidence 1 0.4 0 0.0
Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328, Multiple response data
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Very few cases show a change in primary residence between the initial parenting order and the most recent of any subsequent orders mentioning parenting arrangements. As shown in Table 3.14, only 3.4% of cases in the sample (n=11) showed a change in primary residence over time. A change in primary residence to either the mother (n=3) or the father (n=4), or a child aging out of the arrangements for parenting (n=3), were similarly uncommon. In only one file was there a change to an arrangement in which the primary residence of the child became shared.
Table 3.14 Changes in primary residence arrangements between initial order and last order in file
Typeofchange n %
Primaryresidencechangestomother 3 0.9Primaryresidencechangestofather 4 1.2Primaryresidencebecomesshared 1 0.3Childnolongerchildofmarriage 3 0.9Nochangeinprimaryresidence 317 96.6Total 328 100.0
Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328 Finally, Table 3.15 shows the total number of parenting orders per case, both overall and according to whether violence was mentioned. Although up to six parenting orders could be coded per case, most files in the sample (82.6%) contained only one order referring to parenting arrangements. However, the pattern differs considerably depending on whether a case contained allegations of violence. Although parenting arrangements in the sample were typically stable over the years of data examined, this was not the case when family violence was mentioned. For cases without any reference to violence, the typical number of parenting orders made was one (90.5%). Among cases containing a reference to violence, however, a single parenting order was made in only one-third of cases (36.2%). The more common pattern in cases mentioning family violence was two parenting orders (42.6%), although three parenting orders were made in a substantial minority of cases (14.9%), and a few cases had five or six parenting orders; none of the cases reviewed had four orders.
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Table 3.15 Number of parenting orders per case,
by mention of violence
Numberof
orders
Nomentionof
violenceViolencementioned AllCases
n % n % n %1 249 90.5 17 36.2 266 82.62 21 7.6 20 42.6 41 12.73 5 1.8 7 14.9 12 3.75 0 0.0 2 4.3 2 0.66 0 0.0 1 2.1 1 0.3Total 275 100.0 47 100.0 322 100.0
Source of data: Federal Justice Divorce File Review Study, 2011 Total N=328
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4.0 SUMMARY AND DISCUSSION
This report presents an analysis of the Alberta Court of Queen’s Bench data from the Department of Justice Canada’s Federal Justice Divorce File Review Study. The Study collected detailed information from court files of divorce cases involving children. The analyses conducted for this report focused on the following areas: sociodemographic characteristics of the files reviewed; intervals between key events in the divorce process; the mention of family violence; characteristics of child support orders; and, characteristics of parenting orders. 4.1 Summary 4.1.1 Sociodemographic characteristics
• Two-thirds of divorce claims were initiated by women, and three-quarters of plaintiffs were either represented by or had the assistance of a lawyer at some point in the case. Just under one-half of defendants had legal representation at some point in the case.
• Approximately one-quarter of divorcing spouses were born outside of Canada.
• The average number of children involved per file reviewed was 1.7. Most files
(87.9%) involved one or two children; the most number of children involved in a file was nine.
• The average age of plaintiffs at the time of the divorce was 40 years; the average
age of defendants was 41 years.
• The substantial majority of spouses were employed outside the home at the time of the disposition of the divorce claim, although the average salaries of men and women differed dramatically. The average income of men in the files reviewed was almost double that of women.
• Almost 15% of court files included a reference to family violence.
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• Mental or physical cruelty was given as a reason for marriage breakdown in only 2.7% of files. Separation for not less than one year was given as a reason for marriage breakdown in 98.6% of cases.
4.1.2 Time intervals between milestones in the divorce process
• On average, spouses had been separated for approximately 2.5 years before the
date on which the statement of claim for divorce was filed. The least amount of time passing between these dates was zero years, and the most time passing was 16.4 years.
• The average length of time elapsing from the date of filing of the claim to the
making of the first order, whether interim or final, was slightly over one year.
• The average length of time from the filing of the claim to making of the final divorce order was 1.3 years. The least amount of time passing between these dates was 0.1 years, and the most time passing was 6.4 years.
• The average length of time from the date of separation until the making of the
final divorce order was 3.5 years. The least amount of time passing between these dates was 0.4 years, and the most time passing was 18.1 years.
4.1.3 Patterns by the presence or absence of family violence
• The length of time passing between the date of separation and the filing of the
statement of claim for divorce was shorter in cases mentioning family violence (1.4 years) than in cases in which there was no mention of violence (2.6 years).
• Interim orders were more likely to be issued in cases involving allegations of
family violence (27%) than in cases where there was no mention of violence (3%).
• In cases involving allegations of family violence, a larger proportion of plaintiffs were women than in cases where there was no mention of family violence. Plaintiffs and defendants were also, on average, younger in cases involving family violence.
• Average income for both spouses was slightly lower in cases mentioning family
violence than in cases where there was no mention of violence.
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• The proportion of Canadian-born spouses was higher in cases mentioning family violence than in cases where there was no mention of violence.
4.1.4 Orders
• Three-quarters of the court files reviewed only contained one court order at the time of data collection. The remaining cases had at least two orders on file and one-fifth of cases had three to eight orders.
• In the substantial majority of court files, no interim orders were granted; the final order was the only order on file.
• Interim interim orders were made very rarely, and were found in less than 1% of the files reviewed.
• The majority of orders were made by the spouses’ consent (57%) or were
uncontested (32.5%). 4.1.5 Child support
• A substantial majority of payors of child support were men. Only 8% of payors in the files reviewed were women.
• Men’s incomes, on average, were substantially higher than women’s incomes.
• In cases where men were the payors of child support, the average amount of child support ordered was considerably higher than in cases where women were payors.
4.1.6 Parenting arrangements
• The most common parenting arrangements for the eldest two children in the files reviewed was that their mothers had their primary residence while decision-making was shared between their mothers and fathers.
• In just over two-thirds of the first orders made in the files reviewed, mothers and stepmothers had the primary residence of the eldest child. Fathers and stepfathers had the primary residence of the eldest child in 10.6% of initial
27
orders, and the primary residence of the eldest child was shared in 14.2% of initial orders.
• The primary residence of the eldest and the second eldest child were the same in the substantial majority of cases.
• In 30.8% of the first orders made in the files reviewed, mothers and stepmothers
had the sole responsibility for decision-making in respect of the eldest child. Fathers and stepfathers had sole responsibility for decision-making for the eldest child in 6.9% of initial orders, and responsibility for decision-making for the eldest child was shared in 62.3% of initial orders.
• The decision-making arrangements for the eldest and second eldest child were
the same in the substantial majority of cases.
• Women were more likely to have the primary residence of the two eldest children in cases mentioning family violence than in cases in which there was no mention of violence.
• In more than one-half of the court files reviewed, the children’s contact with the
parent without their primary residence was unspecified and unscheduled. The children’s contact with that parent was provided on a set schedule in less than one-quarter of cases.
• Supervised access was considerably more likely to be ordered in cases where
family violence was mentioned than in cases where there was no mention of violence, but was required in only a minority of all cases (12.5% of cases mentioning family violence, 1.4% of cases not mentioning violence).
• Orders on parenting arrangements were made more frequently in cases
mentioning family violence (42.6% of cases included two or more orders on parenting arrangements) than in cases not mentioning violence (9.4% of cases included two or more such orders).
4.2 Discussion and recommendations Analysis of the Alberta Court of Queen’s Bench data from the Department of Justice Canada’s Federal Justice Divorce File Review Study revealed many interesting patterns
28
and insights into the nature of divorce cases in Alberta involving persons qualifying as “children of the marriage.” 4.2.1 Observations and learnings from the data The majority of plaintiffs are women while the majority of defendants are men. The average age of spouses at the date of the divorce judgment is about 40 years. The majority of spouses are born in Canada, with slightly more than one-quarter of all spouses were born elsewhere. Most spouses were employed at the time of the divorce; however, the average income for men was almost double that of women. The average income of each spouse in the files reviewed was considerably higher than the average 2011 incomes for Canadians in general (Statistics Canada, 2013). This is likely a reflection of the fact that personal incomes in Alberta are higher, on average, than in the rest of Canada. Three-quarters of plaintiffs were either represented by or had the assistance of a lawyer at some point in the file, compared to just under one-half of defendants. These rates of legal representation, particularly for plaintiffs, are somewhat higher than have been reported elsewhere. Based on surveys of judges, lawyers, and other family justice services personnel, Macfarlane (2013) concluded that between 50% to 80% of parties in civil and family actions are self-represented. Birnbaum, Bala, and Bertrand (2013) noted the increase in the number of self-represented litigants in the last two decades and particularly in the past five years, and reported that over one-half of the family law cases in Canada’s courts have one or both parties self-represented. The statements of claim for divorce in the files reviewed had been filed an average of three years prior to data collection, with separation occurring, on average, two and a half years prior to the filing of the claim. An average of one year elapsed between the filing of the statement of claim and the making of the first order in the case, and in the substantial majority of cases, no interim orders were granted and the only orders on file were final orders. The average length of time between the filing of the statement of claim for divorce and the granting of the divorce was a little over one year; the least amount of time elapsing between these dates was 0.1 years and the most amount of time was 6.4 years. Most divorcing couples had one or two children, with an average of 1.7 children per case. The most common parenting arrangements for the eldest two children in the files reviewed was that their mothers had their primary residence while decision-making was shared between their mothers and fathers. The proportion of shared primary
29
residence, or shared custody, cases in the files reviewed may be lower than the national average; a recent national survey of lawyers indicated that 42% of their clients have a shared primary residence arrangement (Bertrand, Paetsch, Boyd, & Bala, 2016). In cases where one parent had the primary residence of the children, the most common arrangements for contact between the children and the other parent were unspecified and unscheduled contact, followed by contact on a set schedule, and contact as the spouses agree. Men were considerably more likely to be the payors of child support, as mothers are more likely to have the children’s primary residence. Average child support award amounts were considerably higher among male payors than female payors, as child support amounts under the Federal Child Support Guidelines are indexed to the payor’s income, and the incomes of men in the sample of files reviewed were considerably higher than the incomes of women. Mental or physical cruelty was given as a reason for marriage breakdown in only 2.7% of files. Separation for not less than one year was given as a reason for marriage breakdown in almost all cases. A minority of the cases reviewed mentioned family violence (15%), and a number of interesting findings emerged when the data were examined by whether there was any mention of family violence in the file. In cases mentioning family violence, the average length of time passing between the date of separation and the filing of the statement of claim for divorce was approximately half that of cases in which there was no mention of family violence. However, the average length of time between the filing of the divorce claim and the making of the divorce order was slightly longer for cases involving alleged violence than for those in which no mention of violence was made in the file. The plaintiff was more likely to be female in cases mentioning violence, and the age of both spouses was slightly lower in cases where there was mention of violence in the file. The average incomes of both plaintiffs and defendants were also lower in cases where there was mention of family violence. Finally, both plaintiffs and defendants were more likely to be Canadian-born in cases where there was mention of family violence. Women were considerably more likely to be granted the primary residence of the children in cases mentioning family violence, and the children’s primary residence was
30
considerably less likely to be shared in cases mentioning violence. Further, cases mentioning violence were considerably more likely to contain more than one order on parenting arrangements compared to cases with no mention of violence. Supervised contact between the children and the parent without the children’s primary residence was considerably more likely to be ordered in cases mentioning family violence. Conversely, unspecific and unscheduled contact arrangements were much more common in cases not mentioning violence than in cases mentioning family violence, likely because of the degree of cooperation and good will required for such ambiguous arrangements to be workable. In the substantial majority of files, no interim orders were made and the only order on file was a final order, suggesting that almost all of the court files reviewed were unopposed divorce applications. The majority of orders were made by the spouses’ consent (57%) or were uncontested (32.5%). Although parenting arrangements were typically stable and did not change over time in most of the cases examined, such stability was not characteristic of files mentioning family violence. Files mentioning family violence were much more likely to contain two or more orders on parenting arrangements than those files not mentioning violence. 4.2.2 Questions arising from the data The data analyzed in this report present a snapshot of the characteristics and timelines of a sample of family law cases in Alberta. However, because coders were specifically instructed to oversample cases that were physically thicker than others, it must not be assumed that the files included in this study are representative of all divorce files and all divorcing spouses in Alberta or elsewhere in Canada. Likewise, it should also not be assumed that the files included in this study are representative of Alberta divorce files that are more complex than usual. Certain conclusions from the data suggest that the files reviewed were of significantly less overall complexity than might be expected if the files of high-conflict parties were oversampled, for example:
a) only 24.1% of the 328 files reviewed contained two or more orders;
b) almost 96% of the files contained an initial order that was a final order; and,
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c) only 6.7% of initial orders were contested or made without notice, while more than half of all initial orders were made by consent and more than two-fifths were made on an uncontested basis.
The physical thickness of a file is not always a proxy for the complexity of the file, as significant bulk can be added to a file from financial disclosure or the inclusion of lengthy materials, such as text message and email strings, in affidavits. It may also be the case that coders, working under a directive to ensure that “every third or fourth file you pull should be thicker,” pulled files that were thicker than the majority of the files potentially reviewable, but declined to pull the thickest, and therefore most labour-intensive, of those files. 4.2.3 Recommendations for further research The data collected by Federal Justice Divorce File Review Study are rich and detailed; this report provides an analysis of only a fraction of the approximately 2,000 data points that Study coders could enter for each file and the countless correlations that may exist between those data points, and it does so for just one of the jurisdictions examined in the Study. Many further analyses can be performed with the data resulting from the Study, with a wealth of potential further findings of import to the participants and decision-makers in the Canadian system of family justice. And yet the data collected is now, at the time of this report, six years old. In the present climate of inquiry and innovation in matters relating to access to justice and the increasing numbers of litigants without counsel engaging in justice processes, the need for these further analyses is clear, as is the need to gather new, updated data. The Family Justice Working Group for the national Action Committee on Access to Justice in Civil and Family Matters (2013) observed that:
We have surprisingly little empirical information about the nature and scale of family dispute in society generally, or about the adequacy of the justice system's response or the consequences of adequate or inadequate resolution of family disputes. We lack an empirical understanding of what happens to family cases after they enter the justice system. We know that a very small percentage go to trial but we have no data about what happens to the remainder. We don't know how many cases settle, when or why they settle, or after what cost and on what basis they resolve.
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Securing objective measurements and empirical data about the justice system would be very helpful in at least two respects. It would allow administrative decisions (involving everything ranging from court rules to family programs and services) to be premised on objective information as opposed to assumptions and anecdotal understanding. It would also allow ministries of justice to better justify the resources required to meet the demands of justice and to create a more compelling business case for reform. (pp. 61-62)
We therefore make the following recommendations for further research.
• The analyses discussed in this report should be repeated in all other jurisdictions in which the Study collected data. The results of those analyses should be compared nationally, to identify any regional differences and best practices for those engaged in the administration and design of justice processes.
• The Study should undertake a new wave of data collection to gather current information and identify any differences and emerging trends occurring following the first three waves of data collection.
• Research specifically looking at characteristics of divorce cases that are complex,
high-conflict or both complex and high-conflict should be undertaken, examining the demographic and systemic factors that promote and discourage settlement and early resolution of these cases, the issues that are least susceptible to settlement, and the durability of interim and final orders.
• Detailed research looking at patterns of legal representation over the course of
divorce cases and outcomes in divorce cases involving litigants without counsel should be undertaken. Such research would benefit legal aid and public legal education providers and may inform the development of special processes and facilities directed to the needs of litigants without counsel, such as the special court room assigned to self-represented litigants making applications in family law matters in the Calgary registry of the Alberta Court of Queen’s Bench.
• Further research and analysis of the existing data should be conducted with
respect to the impact of family violence. The findings of this report on the issue are important but only hint at the repercussions of family violence on the
33
processing and resolution of divorce cases; more work on this important issue can and should be undertaken.
As the Action Committee’s Family Justice Working Group noted, there is precious little empirical information available on family justice processes, and the outcomes of those processes, in Canada. The work of the Study was pioneering and may constitute the only detailed, multijurisdictional data available in this country, and yet the data collected is aging rapidly and heading toward obsolescence. We encourage the federal, provincial and territorial governments of Canada to commission research to thoroughly examine the data collected in 2005, 2008 and 2011. We further encourage the governments to cooperate to collect a fourth data set, using the excellent materials prepared for the 2011 data set to minimize further expense and maximize the reliability of comparative analyses.
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REFERENCES
Action Committee on Access to Justice in Civil and Family Matters. (2013). Meaningful Change for Family Justice: Beyond Wise Words. Final Report of the Family Justice Working Group. Ottawa, ON: Action Committee on Access to Justice in Civil and Family Matters. Available at:www.cfcj-fcjc.org/sites/default/files/docs/ 2013/Report of the Family Law WG Meaningful Change April 2013.pdf
Bertrand, L.D., Paetsch, J.J., Boyd, J.-P., & Bala, N. (2016). The Practice of Family Law in
Canada: Results from a Survey of Participants at the 2016 National Family Law Program. Ottawa, ON: Department of Justice Canada.
Birnbaum, R., Bala, N., & Bertrand, L. (2013). The rise of self-representation in Canada’s
family courts: The complex picture revealed in surveys of judges, lawyers and litigants. Canadian Bar Review, 91, 67-95.
Macfarlane, J. (2013). The National Self-represented Litigants Project: Identifying and Meeting
the Needs of Self-represented Litigants: Final Report. Available at: representingyourselfcanada.com/wp-content/uploads/2016/09/ srlreportfinal.pdf
Statistics Canada. (2013). CANSIM Table 202-0102. Available at: www.statcan.gc.ca/
tables-tableaux/sum-som/l01/cst01/labor01a-eng.htm
Statistics Canada. (2016). Family violence in Canada: A statistical profile, 2014. Available at: www.statcan.gc.ca/pub/85-002-x/2016001/article/14303-eng.htm
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GLOSSARY Child of the marriage: A term used by the federal Divorce Act referring to a child of one or more spouses who is under the age of majority, or older than the age of majority but unable to withdraw from the spouses’ care. Child support: An amount of money paid by one spouse to the other for the financial support of a child of the marriage under the Divorce Act, the amount of which is usually calculated under the Federal Child Support Guidelines. Coder: Personnel hired by the Federal Justice Divorce File Review Study and trained to encode data from court divorce files. Contact: The time a child spends with a spouse who does not have the child’s primary residence; the terms of an order for “access” made under the Divorce Act. Decision-making: The duty of a spouse to make decisions on behalf of a child. The duty may be held by one spouse alone or may be shared by spouses. A right implied by an order for “custody” under the Divorce Act. Defendant: In Alberta, and some other jurisdictions, the person against whom a court case has been started. Divorce case: A case between married spouses under the Divorce Act in which a claim is made for a divorce order, with or without claims for any other orders, such as orders about the parenting and management of any children of the marriage or the payment of support. Divorce order: The order required to legally terminated a marriage. Final order: An order made by a judge after trial or summary trial, or with the agreement of the spouses, which resolves all or some of the legal issues raised in a court case and cancels all or some of the interim orders previously made in the case. A divorce order is a final order. Intercoder reliability: The extent to which two or more independent coders, who are collecting data from the same file, agree on which information to code, and how to code that information, when applying the same coding scheme. Interim interim order: An interim order expected to be in effect for a short period of time, often made on less evidence than an order, and usually subject to a party’s application to change without first having to prove that change of circumstances occurred after the order was made.
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Interim order: A temporary order made before the final order is made after a trial or made following the settlement of the divorce case. Missing cases: The number of responses on individual questions that are not available. The most common reasons for missing cases in data from the Study are that the data were not available in the court file or were not encoded by the coder. Mean: The mean is the average response to a question. It is calculated by adding up all of the responses received and then dividing the resulting sum by the total number of responses. Median: The median value refers to the response to a question above and below which one-half of the responses fall. Multiple response data: Multiple response data refers to questions in which respondents are allowed to choose more than one answer. In tables where multiple response data are presented, the percentages presented for individual items will total more than 100. N and n: N refers to the total number of responses received to a survey while n refers to a subset of the total responses that may be selected for specific data analyses. For example, if 100 men and women respond to a survey, then N = 100. If 30 of those respondents identify as women, then n = 30 women and n = 70 men. Oversampling: The selection of certain court files for review more often than those files would be selected by random chance. Plaintiff: In Alberta, and some other jurisdictions, the person starting a court case. Primary residence: The home of the spouse with whom the child lives the most often, usually as a result of a court order or the spouses’ agreement. A right often implied by an order for “custody” under the Divorce Act. Spouses may share the primary residence of a child, called “shared custody” in relation to child support. Range: The lowest and highest responses to a question. Representativeness: The extent to which the information collected through a review of a sample of files is likely to reflect the information that would be obtained if every file was reviewed.