An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access

2001-FCY-2E

OBJECTIVES AND CHALLENGES FOR REFORM (continued)

CHALLENGES

In light of these guiding principles and objectives for reform, it is possible to identify a number of questions that must be considered about any reform of the law of custody and access.

  • What can reasonably be expected from terminological change?
  • What is parental responsibility and how should it be allocated between parents?
  • How should decision-making authority be allocated between parents?
  • How can children be protected from violence, high conflict and inadequate parenting?
  • How can parents be encouraged to resolve their parenting disputes themselves, while retaining the authority of courts to act as a forum of last resort?
  • Should the Divorce Act specifically include references to parenting plans, or to divorce services, such as parenting education and mediation services?
  • And what, ultimately, is the law’s role in promoting the more cooperative resolution of parenting disputes, and more cooperative post-divorce parenting?

These are questions and challenges any option for reform must address, and that return throughout the discussion paper.

Terminology

One crucial challenge is deciding on appropriate terminology for the legal regulation of parenting after divorce. Each option for reform involves the question of the appropriateness of various terms: custody and access, parenting responsibility and shared parenting. Indeed, at least as a starting point, the major differences among these three options for reform are differences of terminology. The general question that any reform to the existing law of custody and access must consider is whether terminological change is required, and if so, which terminology will provide the best alternative?

The language of custody and access has come under considerable criticism in recent years. The language, drawn from criminal and property law, is believed by many to be inappropriate when restructuring parenting relationships following marital break down. Many commentators have suggested that the language promotes the win-loss mentality characteristic of custody and access disputes:4 parents fight over who gets to be the "real" custodial parent and who must settle for being the second-class "access" parent. The Special Joint Committee commented on the "corrosive impact of the current terminology," and recommended that this language be abandoned in favour of other language that could better describe post-divorce parenting relationships. This movement towards rejecting custody and access has developed considerable momentum, with the federal government’s response to the committee also endorsing the need for terminological change.5

There is no question that the language of custody and access has become emotionally loaded. Disputing parents may sometimes find themselves fighting about the language, rather than focusing on the interests of, and arrangements for, their children. So there is, then, much to be said for any reforms that might help parents focus their attention on the interests of the children. At the same time, it is important to be realistic about what might be accomplished in and through a change in language.

First, it should be recognized that over the last decade, the courts have been extending the rights of non-custodial parents, and have been promoting the continuous involvement of both parents in the lives of their children.6 Non-custodial parents are no longer completely excluded from participation in their children’s lives. At least part of the critique of the language of custody and access stems from a misrepresentation of the law, which is no longer so starkly characterized by a "winner-takes-all" result.

Second, there is no reason to assume that any new language will not quickly become as emotionally fraught as the language of custody and access. Any assessment of this potential will depend on the specific nature of the reforms adopted. While the language of parenting responsibility may sound more neutral and attractive, the potential of such language to reduce parental conflict cannot be examined in the abstract. Success will depend on the particular nature of the legal regime, and on the type of parenting orders contemplated within the regime. For example, a model that replaced custody and access orders with something such as residence and contact orders (as was done in the United Kingdom, and is discussed in greater detail below), might only displace the location of the conflict. Residence and contact orders might become as emotionally fraught as their predecessors.

There is nothing inherent in the language of custody and access itself that has made it so emotionally loaded. Rather, it is the fact that it is the language within which parental disputes have been cast and fought for many, many years. While it may well be that this history of conflict has rendered the language of custody and access irretrievable, it is important to keep in mind that it is not the language itself, but the years of conflict, that have produced what is now cast as a problem of terminology. And, as such, even though the language of parenting responsibility, or even shared parenting may appear to hold out new promise of reducing parental conflict, it is quite possible that this new language could also over time become the site of fierce legal battles.7 Further, the alternative language of parenting responsibility or shared parenting is not without its own negative connotations. Parental responsibility is now often associated with laws intended to make parents liable for their children’s negligent or criminal acts. Shared parenting has become very closely associated with the fathers rights groups that have so strongly advocated in favour of mandatory joint custody.

Third, the negative connotations of the words custody and access are not the only, nor necessarily even the most significant, factor leading to disputes between separating or divorcing parents. Richard Chisholme argues, in assessing the potential impact of the terminological change in the Australian Family Law Reform Act, 1995, that it is "unlikely that most people’s attitudes to their children and their own responsibilities are much influenced by the legal language of guardianship, custody and access. They are more likely to be influenced… by such things as the style of parenting they were exposed to when they were children, attitudes and practices of their peers, the influences of the media, their own individual needs and characteristics, and the emotional consequences of the break down in the relationship." 8 As such, there is not likely to be any magic in changing the language of custody and access. Altering the language may eliminate one source of conflict, but there are many other sources of parental conflict that language alone is unlikely to affect. There is at least one reason, then, to question the extent to which a change in language, in and of itself, is likely to bring about any significant change in parental behaviour on marital break down.

It is also important to consider the broader implications of terminological change for other legislative schemes, at both the federal and provincial/territorial levels. Many statutes incorporate the language of custody and access. If this language was abandoned in favour of some other terminology, it would be necessary to consider the need to reform these other statutes.9 Some of the required change would be reasonably minor, requiring only minor revisions to the wording; however, there are some implications of replacing custody and access orders with parenting orders that are more serious.

Some legislative schemes require a designation of a custodial parent. The Ontario Works Act, for example, which regulates social assistance, only provides assistance to the child’s custodial parent. Both parents cannot obtain assistance for the same child, regardless of their custodial arrangement. Further, the Act arbitrarily defines the custodial parent, or primary caregiver, as the person who receives the Federal Child Tax Benefit. If the parent with whom the child is living is not receiving that benefit, then that parent would not be eligible for social assistance.

Provincial government directives further provide that if the Canada Customs and Revenue Agency determines that each parent is an equal primary caregiver, the Federal Child Tax Benefit may be split between them, with each parent receiving it for six months. The parent would be eligible for social assistance in any month in which he or she received the benefit. The problem is that joint custody or shared parenting arrangements rarely, if ever, allocate custody a month at a time. If a parenting regime was adopted in which the language of custody and access were abandoned altogether, in favour of either parental responsibility or shared parenting, these problems would only be intensified for parents requiring social assistance.

The Federal Child Support Guidelines are also based on the designation of custodial and non-custodial parents, in so far as the calculation of child support obligations is based on the income of the non-custodial parent. Moving away from the language of custody and access would require a re-evaluation and possibly a reform of the Guidelines. If a parenting regime was adopted in which it was still possible to identify a residential parent, with whom the child lived more than 60 percent of the time, the Guidelines would only require a minor terminological change.10 However, if a parenting regime was adopted in which it was no longer possible to identify a residential parent, and/or the child would live with each parent at least 40 percent of the time, the Guidelines would need to be revised. Moreover, any revisiting of the Guidelines would have implications not only for the Divorce Act, but also for all the provinces and territories that have brought their laws in line with the Guidelines.

Abandoning the language of custody and access in the Divorce Act could also have serious implications if the provinces and territories do not adopt similar changes. Unmarried couples who separated and married couples who separated but did not petition for divorce would be governed by provincial law of custody and access, while divorcing couples would be governed by the new parenting regime. This would not only contribute to the confusion of the family justice system, but could also lead to unintended consequences. The decision of whether to divorce or simply separate could come to be influenced or determined by a parent’s view of which law—federal, provincial or territorial—would be more favourable to their circumstances.

It is important to emphasize that this paper is not arguing against changing the language. This section is rather an attempt to highlight the potential limitations of such a change. There does appear to be considerable public support for the introduction of new and less adversarial language. If the language of custody and access is operating as an obstacle to separating and divorcing parents, then there may be good reason to abandon it. Family transition experts often attempt to avoid this language when assisting separating and divorcing parents, and try to get these parents to focus on the real needs of their children instead of the abstract legal concepts. But, it is important to be realistic about what such change in terminology will be able to accomplish. Rhonda Freeman, for example, advocates in favour of changing the language. At the same time, she recognizes that "language alone… will not be sufficient to address the inadequacy of the adversarial arena as a means of resolving parenting after divorce dilemmas." 11 Abandoning the language of custody and access may remove one obstacle in the process of resolving parenting disputes, but it will not remove the conflict itself.

In examining the three options for reform, this paper looks more specifically at the relative advantages and disadvantages of the terms custody and access, parenting responsibility and shared parenting, while keeping in mind that there may be limits to what terminology itself can accomplish. Even if a change in terminology cannot in and of itself be expected to bring about a major transformation of parental attitudes and behaviour, reducing conflict and promoting cooperation, the language of each of the options for reform nevertheless has relative strengths and weaknesses that need to be weighed.

Parental Responsibility

A second theme that runs through the analysis of each option for reform is the question of how the law can best promote the idea of parental responsibility. It is an idea intended, in part, to help develop a more child-centred perspective that focuses on parental responsibilities rather than parental rights. It is also intended to help encourage the continued involvement of parents in the lives of their children, by emphasizing that parents continue to be parents, and have responsibilities to their children, after separation and divorce. While Option Two actually uses the term parental responsibility to describe the model, each of the options for reform must include consideration of how this idea can be incorporated into the Divorce Act. Each option must also review whether and how the idea of parental responsibility can be defined: what parents’ responsibilities to their children are, and how specifically these responsibilities should be defined. Further, each option answers the basic question of how the various aspects of parental responsibility should be allocated between the parents. These questions play out differently within each option, raising varying concerns.

The existing regime of custody and access does not mention parental responsibility, and the regime has been criticized for its focus on rights rather than responsibilities. The issue that must be addressed is whether it is possible to bring about a child-centred shift from parental rights to parental responsibilities within a model that continues to allocate parental responsibilities in the language of custody and access.

The second and third options for reform are both based more explicitly on the idea of parental responsibility, although they differ significantly in their approaches to how this responsibility should be allocated. The neutral parental responsibility model makes no assumptions about how the various aspects of parental responsibility should be allocated between parents, but, rather, insists that the allocation be based on the best interests of the child in each case. In contrast, the shared parenting model assumes that it is generally in the best interests of the child that parenting responsibility, or at least some aspects thereof, be shared between the parents. These two models differ in the way in which parenting responsibility is balanced with the principle of the best interest of the child.

The three options for reform differ, then, in the challenges presented by this idea of parental responsibility. In a custody and access regime, the challenge is to decide whether the idea of parental responsibility can be incorporated at all.

In the neutral parenting responsibility model, the challenge is to identify the criteria by which parental responsibility is to be allocated. Should different aspects of parental responsibility be allocated according to different criteria?

In the shared parenting model, the challenge is to identify the aspects of parental responsibility to be shared, and then to establish the criteria by which the non-shared aspects of parental responsibility are to be allocated. Further, if shared parenting is generally assumed to be in the best interests of the child, this model would have to identify the exceptions to the rule that is, the circumstances in which shared parental responsibility should not be assumed to be in the best interests of the child.

Ultimately, the choice to be made among the options for reform will involve promoting, defining and allocating parental responsibility.


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