One of the goals of the FLA was to make language simpler and easier for Albertans to understand. Respondents were asked several questions regarding their opinions on whether this goal has been met, and their responses are summarized in Table 5.9.
n % n % n %
Does the language of the FLA reflect current thinking about children and families experiencing family breakdown?
103 81.1 24 18.9 127 100.0
Is the language of the FLA clear? 103 78.6 28 21.4 131 100.0 Is the language of the FLA easy to understand? 99 78.6 27 21.4 126 100.0 Does the language of the FLA facilitate
collaboration?
84 73.7 30 26.3 114 100.0 Do you believe that replacing the terms "custody"
and "access" has improved provincial family law legislation?
69 51.1 66 48.9 135 100.0 Has replacing the terms "custody" and "access"
been effective in reducing the adversarial nature of provincial family law legislation?
57 43.2 75 56.8 132 100.0
Source of data: Survey of Professionals. Total N = 152.
Table 5.9
Respondents' Opinions on the Language of the FLA
Questions Yes No Total
The majority of respondents (81.1%) agreed that the language of the FLA reflects current thinking about children and families experiencing family breakdown. When asked to elaborate on their response, 35 professionals provided 40 comments. The most frequent comment (n=14) was that people still think about custody and access and joint custody is still a very relevant concept and should be part of the Act. One respondent commented:
Current thinking by whom? The courts or the ordinary citizens? I think the legislation provides clarity to courts and lawyers but ordinary folks have hard time understanding complexity i.e., layers of rights – guardians, non- guardians, parenting orders/contact orders/decision making orders.
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Over three-quarters of respondents (78.6%) thought that the language of the FLA is clear. When asked why or why not, 33 respondents provided 36 comments. The most common comment (n=10) was that people need to be familiar with the legal language, followed by the observation that the language of the FLA is still open to interpretation at times and can be confusing (n=7).
The same proportion of respondents (78.6%) agreed that the language of the FLA is easy to understand. When asked to explain their opinion, 28 professionals offered 29 comments. The most common response (n=20) was that an understanding of legal terminology is required and that the ability to understand the language depends on an individual’s literacy level. One respondent commented that “government lawyers and legislators completely ignored the Provincial Court’s warnings pre-introduction. The time spent trying to explain the Act to self-represented (and many lawyers) is staggering and takes up valuable hours in the court room.”
Almost three-quarters (73.7%) of respondents believed that the language of the FLA facilitates collaboration. When asked why or why not, 33 respondents provided 36 comments. The most common comment (n=7) was that the language facilitates collaboration somewhat but it could be enhanced, followed by the observation that it is the parties who determine whether collaboration will be successful (n=7). Specific comments provided by respondents included:
…the language is softer and people tend to relax a little more when you start talking about what role they will play in the child’s life and what role the other parent will play in the child’s life.
But in some cases (when people just want to fight with each other) the check list of roles and responsibilities seems to give them even more reason to fight about each and every little responsibility instead of just the old custody and access piece.
I am having difficulty answering this question – depending on your definition of facilitate – which I take to mean something less than promote. I think it “allows” collaboration, but does nothing to “promote” or “encourage” collaboration.
Regardless of intent, it is the services in place that will ultimately determine whether collaboration is achieved. Right now, we could use more counselors, legal counsel, psychologists/therapist, court clerks and judges!
The terms “custody” and “access” were not used in the FLA. When professionals were asked if replacing these terms has improved family law legislation in Alberta, approximately one-half (51.1%) agreed that it has. When requested to elaborate on their opinion, 81 respondents provided 87 comments. The most common comment (n=32) was that self-represented parties are still accustomed to the old language and custody and access should have remained the same because terminology was never
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the problem. A substantial number of respondents also commented that there is not consistent terminology in all aspects, such as between the FLA and the Divorce Act, which creates double speak and is confusing to the public (n=22). On a more positive note, several respondents commented that the new terminology does not imply ownership and makes the outcome less of a win/loss situation which helps to put the focus on children (n=13). Specific comments provided by respondents included:
People cannot understand “parenting.” It seems to be an all or nothing mentality, where they must have custody of the children to be satisfied. In theory, the idea is a good one. Children are not property and the idea of sharing responsibilities is less contentious than custody; however it does not seem to work in practice.
They are words implying ownership and rights – in fact to be in “custody” means to be “imprisoned” – I think the message has to be that what parents call their parenting arrangement isn’t as important as how it works practically – and previously, people would spend too much time and energy arguing over words – (i.e., joint vs. sole custody) while agreeing where the children would live. “Access” is such a demeaning term to the parent that does not have the children.
Finally, professionals were asked if they thought that the change in terminology has been effective in reducing the adversarial nature of family law legislation in Alberta. Less than one-half (43.2%) of respondents agreed with this statement. When asked to elaborate on their opinion, 68 respondents offered 71 comments. The most common comment (n=15) was that the new terminology is more focused on developing a cooperative parental relationship, followed by the comment that the good intentions of the Act are frustrated by the reality of the litigation process which has become worse in the last decade (n=14). Another frequently offered comment was that people understood the difference between custody and access, but now they have to get their heads around a whole new set of terms (n=7). Specific comments provided by respondents included:
Again, the Alberta government has to properly fund interest-based resolution processes, in order to reduce conflict and provide strategies for people to learn about and manage conflict, as opposed to continuing and/or encouraging reliance on court process and third party adjudication. It is the process, not the terminology that makes the difference, at the end of the day.
The language or the system doesn’t create the adversarial nature of the beast. Most family law issues are observed by the parties as win or lose issues. It takes great skill to find “win, win” solutions and many people do not have the desire to do more than have a win for themselves. In addition, you have to remember the stages people go through in a separation. We can have a husband who is angry and a wife who is remorseful and those dynamics affect how they pursue the solution of their case. The alternative measures that are available for the most part simply
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divert the problems we have but do not necessarily provide better or more complete solutions. We just lose the ability to track the cases.
I do not believe the language is the central issue. Reducing the necessity for repeat applications would be a more beneficial goal (i.e., use of longevity-based parenting plan models vs. dealing with each incident on a need be basis).