The Early Identification and Streaming
of Cases of High Conflict Separation and Divorce: A Review

FRAMING THE ISSUES AND THE QUESTIONS

In 1996, 158,680 couples were married in Canada. In that same year, there were 71,528 divorces in Canada. As a result, approximately 47,000 children were the subjects of custody orders (Statistics Canada, 1999).

Divorce statistics for Canada for the last 20 years show the following pattern: in 1978 there were 57,155 divorces in Canada; this number increased steadily and peaked in 1987 when there were 96,200 divorces; the number then decreased steadily to the 1996 statistics.

In 1994-1995, Human Resources and Development Canada and Statistics Canada began the National Longitudinal Study of Children and Youth (NLSCY), in which 22,000 children from birth to age 11 were surveyed, with follow-up surveys planned every two years at least until the year 2002. In 1998, the Child Support Team of the Department of Justice Canada commissioned an analysis of the data related to custody, access and child support from the Family History and Custody section of the NLSCY. The report by Marcil-Gratton and Le Bourdais (1999) shows that an increasing proportion of children experience life in a single or separated parent family and do so at an earlier age. Of children born between 1961 and 1963, 25 percent were born to a single mother or had seen their parents separate before they reached the age of 20. Half of the parents of this group had separated after the children reached the age of 10. Twenty-five percent of the children born 10 years later (1971 to 1973) experienced their parents’ separation by the age of 15, and three out of four of these children experienced the separation before the age of 10. One out of four children born in 1983 and 1984 experienced life in a single family by the age of 10, and 23 percent of children born in 1987 and 1988 experienced life in a single family by the age of 6.

It should be noted that these numbers reflect the experience of children caught up in two social trends: the increased tendency of parents to separate and the increased number of couples who chose not to marry. Marcil-Gratton and Le Bourdais (1999) report that of children born in 1993?1994 in Ontario, 12 percent were born to common-law parents, while of children in Quebec born in the same period, 43 percent were born to common-law parents.

It appears that an increasing number of Canadian couples are choosing not to marry. These couples form families, have children, and when those relationships end, their numbers are not recorded in official divorce statistics. They do, however, seem to have a significantly higher tendency to separate. Marcil-Gratton and Le Bourdais (1999) report that of children born in 1983-1984, 63 percent of them had experienced the dissolution of their parents’ common-law relationship as compared to a 14 percent rate of separation for children whose parents had married.

The children of these relationships are still caught in legal disputes over custody and access, but these disputes do not fall under the jurisdiction of the Divorce Act of Canada. Rather, they fall within the jurisdiction of provincial Family Law. There is no evidence to suggest, however, that the effects of parental separation on children from non-married parents is any different from the effects on children whose parents were legally married.

Whatever the exact number of families in which the children experience their parents’ separation, a significantly large number of Canadian children are affected by their parents’ separation and divorce and the inter-parental conflict that often follows.

In 1997, the federal government formed a Special Joint Committee of the Senate and House of Commons to look at Canada’s Divorce Act and assess whether changes were required to make the policies and procedures of divorce more focussed on the best interests of the children involved, and more based on concepts of cooperation and shared parenting responsibilities.

This Special Joint Committee on Child Custody and Access held 55 meetings and heard from more than 500 witnesses, including parents, children, grandparents, researchers, lawyers and mental health professionals. Most of these witnesses spoke of the stress caused to children and parents by divorce, and many referred to the specific harm caused to children by what were referred to as "high conflict" divorces.

There is no generally accepted definition of what exactly constitutes a high conflict divorce, although there is acknowledgement that these situations differ from the normal amount of upset associated with marital separation and divorce. We know that most separating couples go through a transition period of emotional upset related to the end of their relationship. However, why certain families become locked into long, bitter and expensive battles over custody, access and support, while the majority of separating and divorcing families are able to avoid such protracted disputes, remains unclear.

However vague the definition, several researchers and other professionals (e.g. Bala; Richardson) estimated in their testimony before the Special Joint Committee that approximately 10 to 15 percent of all divorcing families fall into this high conflict category. Using the numbers from Statistics Canada for 1996, the lower estimate means that approximately 4,700 children each year find themselves in the middle of hostile disputes over their immediate and future living arrangements. This does not include children whose parents are dissolving their common-law relationship through provincial Family Law rather than the Divorce Act.

The Special Joint Committee’s report (Pearson and Gallaway, 1998) made 48 recommendations to Parliament concerning possible changes to the Divorce Act. One of these, recommendation 32, focussed specifically on high conflict divorces:

  • This Committee recommends that federal, provincial and territorial governments work together to encourage the development of effective models for early identification of high conflict families seeking divorce. Such families should be streamed into a specialized, expedited process and offered services designed to improve outcomes for children.

Methodology and terms of reference

Based on an extensive review of the literature, plus a series of interviews with researchers and clinicians recognized as specialists in the area of divorce, this research was designed to:

  • establish a set of criteria to identify high conflict divorces from the general population of divorcing families;

  • describe and evaluate current methods used in research and clinical practice to identify high conflict divorces;

  • describe means and mechanisms for streaming high conflict divorces into other services to facilitate conflict resolution; and

  • explore whether there are reliable programs or interventions for resolving conflict in high conflict families and determine the long-term effectiveness of these interventions.

In order to establish the context in which high conflict divorces exist, this research begins with a summary of those studies that investigate the overall effects of divorce on children and adults. This section of the study investigates:

  • how divorce affects children and whether these effects are temporary or long-lasting in nature; and

  • whether divorce is a reliable predictor of negative impact on children in terms of their social, academic and emotional development.

There are many other research projects that summarize the effects of divorce on children, including an earlier report by the Department of Justice Canada (1997a and 1998b). Generally, these studies come to similar conclusions: divorce results in a number of emotional, behavioural and structural/environmental risk factors that contribute to negative outcomes for many children in terms of their emotional, academic and social development.

Although these findings are generally well known, it is important to review these studies and include them in this paper in order to understand the context in which high conflict divorces function. More important, these studies, when seen as a whole, show how complicated the picture is in terms of identifying and defining this phenomena called "high conflict" divorce.

This paper therefore begins with a summary of those studies which track the effects of divorce on children. This provides an overview of the identified risk factors that contribute to negative outcomes for children. The paper then explores the phenomena referred to as high risk divorces. The objective is to identify those criteria that help differentiate these relationships from those which are able to resolve the emotional issues of ending a marriage, and the practical issues of custody, access and support for the children, without high levels of hostility and bitterness.

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