An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
Any reform to the existing regime of custody and access must consider the impact of this reform on existing orders and agreements. It would be important to stipulate that the reform does not have any retroactive effect, and that the legislative reform itself does not constitute a significant change in circumstances that could justify a variation of an existing order or agreement. Otherwise, the reform initiative would undermine one of its most basic objectives; of reducing parental conflict and litigation. If the legislative reform constituted a ground for a variation order, all existing custody and access orders and agreements could be subject to review, which would likely result in a dramatic increase in court applications for variation, in situations in which there had been no other change in circumstances. This would not be in the best interests of the children involved, and would not be in keeping with the objectives of reform of promoting the best interests of children, encouraging parental cooperation and reducing conflict.
The three options for reform have their relative advantages and disadvantages. Each option can promote some of the objectives for reform, but each also has its limitations. The following discussion attempts to highlight the differences between the models, and the policy choices that need to be made in light of these differences.
The differences among the three options for reform are first and foremost differences of terminology. Custody and access, parental responsibility and shared parenting represent three very different ways of framing and conceptualizing post-separation and divorce parenting.
The language of custody and access of Option One has the advantage of stability but the disadvantage of being emotionally loaded with what has come to be perceived as an all-or-nothing, winner-take-all mentality.
As discussed above, this winner-take-all approach somewhat misrepresents the trends in the law. 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. Non-custodial parents are no longer completely excluded from participation in their children’s lives. However, notwithstanding this change, there is a social perception that non-custodial parents are relegated to a second-class parental status.
It is not clear that any amount of reform within the model of custody and access could address this social perception. The problem has come to be framed as one of language. As such, nothing short of abandoning the language of custody and access would be seen to be seriously addressing the problem. The momentum for this change only continues to build as more and more jurisdictions abandon the language of custody and access in favour of more appropriate terminology.
Both the parental responsibility and shared parenting models, therefore, have the advantage of abandoning the emotionally fraught terminology of custody and access. They both share, however, the disadvantage of the uncertainty and ambiguity created by legal change, as well as the broad ranging implications for other federal and provincial laws.
The language of shared parenting in Option Three has the additional disadvantage of the negative connotations already associated with the term itself: it too closely approximates the idea of joint custody and is to closely associated with fathers’ rights groups. It also has the disadvantage of creating profound confusion—that is, there is no clear and consistent way in which the term is used. For some, it means joint legal custody. For others it means joint physical custody. For yet others it simply means that parents continue to be parents. It is highly controversial language, and any effort to define the term more precisely would encounter a host of resistance from a range of constituencies. It is also not clear that the language is the most child-centred of the options insofar as it continues to focus on parental entitlement rather than parental responsibility.
Parental responsibility is the most neutral language of the three options for reform. It has neither the negative connotation of custody and access, nor the negative connotations of shared parenting. It is language intended to capture the idea that parenting survives separation and divorce, but it does not dictate the terms of that parenting. It is language that best captures the new child-centred approach to post-divorce parenting, that both emphasizes the continuing responsibilities of both parents and allows for maximum flexibility in designing parenting arrangements tailored to the unique needs of individual families.
The existing regime of custody and access can be reformed to better promote the best interests of the child, by providing a more elaborate definition of those interests, by including references to parenting plans and divorce-related services, and by specifically addressing the relevance of violence, high conflict and inadequate parenting. While this option for reform could attempt to promote the idea of parental responsibility (by including a list of parental responsibilities), there is tension between this idea and a regime that continues to rely on the language of custody and access. The language of custody and access continues to allow for the all-or-nothing mentality that the idea of parental responsibility attempts to displace.
A neutral regime of parental responsibility would be designed to require that parental responsibilities be allocated between the parents on the basis of the best interests of the child. There would be no assumptions about how parental responsibility should be allocated, no general preset understanding that particular parenting arrangements would be in the best interests of children. Rather, in each case, parental responsibility could be allocated according to the best interests of the child. The criteria for best interests could be general or specific. A regime could simply include a general list of factors to take into account when determining the best interest of the child. Or, the regime could specify the particular factors to be taken into account when allocating particular aspects of parental responsibility according to the best interests of the child. Either scheme would require that parental responsibility be examined and allocated in each individual case, either by parental agreement or court order, according to a determination of the best interests of the child.
A regime of shared parenting would be designed on the basis of the assumption that a particular parenting arrangement is generally in the best interests of the child. It would assume in advance that the sharing of particular aspects of parental responsibility is in the best interests of the child. This is a regime that begins with an assumption that parental responsibility should be shared, and any deviation from this sharing would have to be demonstrated to be in the best interests of the child. It could either include a general list of factors to take into account when determining any deviation from the principle of sharing, or specify the particular circumstances in which shared parenting would not be appropriate.
Options Two and Three, then, can be seen to be characterized by a very different balance between the best interests principle and the parental responsibility principle. In Option Two, the best interests test is used to allocate parental responsibility in each case, and retains the best interests test as the cornerstone of all determinations of parenting arrangements. In Option Three, a particular allocation of parenting responsibility (shared) is predetermined to be in the best interests of children, and the best-interests test is then used in individual cases to justify a deviation from it. Option Three elevates the principle of parenting responsibility by deciding in advance that a particular parenting arrangement is in a child’s best interests. While not entirely displacing the best interests principle, Option Three relies on the best-interests test to justify deviations from the general principle of shared parenting.
The choice between Options Two and Three depends then on whether or not a particular parenting arrangement, in which some aspects of parental responsibility are shared, can be said to generally be in the best interests of children.
This choice presupposes a number of other policy choices.
First, should the legislative framework make any assumptions that particular parenting arrangements are generally in the best interests of the child, or should the legislative framework refrain from making any such assumptions? If the legislative framework rejects legislative presumptions and recognizes that no one model of post-separation parenting would be ideal for all children, then Option Two would be preferred. If the legislative framework allows for recognition that one model of certain aspects of post-separation parenting would generally be in the best interests of all children, what would, in effect, be a legislative presumption, then Option Three would be preferred.
Secondly, the choice requires a clear understanding of the particular aspects of parenting responsibility that are to be shared within Option Three. Before deciding whether a particular arrangement can be said to be generally in children’s best interests, it is essential that there be a clear and accepted understanding of that arrangement. Does it involve shared decision-making? Major or minor decision-making? Shared residence? These must be clearly and precisely defined.
The existing regime of custody and access under the Divorce Act allows for either sole and joint custody orders. In sole custody, decision-making authority is vested in the custodial parent. The access parent has the right to make inquiries and be given information regarding the health, education and welfare of the child. In joint custody orders, the decision-making authority is shared between the parents. The possible reforms within the existing regime would not substantially affect the way in which decision-making authority could, or should, be allocated between parents. Parents would be free to agree to joint-custody arrangements in which decision-making was shared. However, in contested cases, the courts would still be called upon to resolve the dispute and, given their reluctance to order joint custody in contested cases, the resolution would likely come in the form of sole custody and access orders.
Two reforms within the existing regime of custody and access might influence the allocation of decision-making. First, the incorporation of optional parenting plans might encourage parents to enter into parenting arrangements that avoid the language of custody and access and allow more flexibility in the allocation of decision-making authority. Second, the incorporation of divorce-related services that encourage cooperative dispute resolution might encourage more parents to enter into such parenting plans. Both reforms would, in effect, encourage parents to consider parenting arrangements deviated from a strict model of custody and access, and that would, at least, allow for a more flexible allocation of decision-making authority. However, both reforms would be entirely optional and would depend on mutual agreement. In contested cases, the courts would still resolve the dispute within the language of custody and access.
A regime of parental responsibility would be designed to require that decision-making authority be allocated between the parents on the basis of the best interests of the child. There would be no assumptions in advance that a particular allocation of decision-making authority is always or generally in the best interests of the child. Decision-making authority could be shared, divided or granted to one parent. Parents and courts would make this determination on the basis of the best interests of the children in each case. As with parenting responsibility generally, the criteria for allocating decision-making authority could be general or specific. It could be governed by a general statutory list of factors to take into account when determining the best interests of the child. Or, it could be governed by a more specific list of factors specifically directed at the allocation decision-making authority.
A regime of shared parenting would be designed on the understanding that decision-making authority should generally be shared between parents. Decision-making authority is most likely the dimension of parenting responsibility that this model would single out and insist be shared between the parents. It would assume in advance that a child’s best interests are generally served if decision-making authority is shared between the parents. Any deviation from shared decision-making authority would have to be justified on the basis of the best interests of the child on a case-by-case basis. A regime of shared parenting might include a specific list of circumstances that could justify a deviation from this shared decision-making.
Again, Options Two and Three can be seen to be characterized by a different role for the best interests principle. In Option Two, all decision-making authority is allocated on the basis of the best interests principle on a case-by-case basis. In Option Three, the best-interests principle is said to predetermine shared decision-making, and any deviation from shared parenting must then be justified according to the best interests of the child on a case-by-case basis.
As noted in the discussion of parental responsibility generally, the choice between Option Two and Option Three is, then, a choice about whether or not shared decision-making authority can generally be said to be in the best interests of children. The choice depends first and foremost on whether or not the Divorce Act should include what is, in effect, a legislative presumption in favour of one particular allocation of decision-making authority. Second, this choice would require a clear and accepted definition of precisely how decision-making authority would be shared under Option Three. Would only major decisions be shared (major medical, education and religion decisions)? Would decision-making be joint or independent? How would day-to-day decision-making be allocated and exercised?
Reforms to the existing regime of custody and access would not significantly change the way in which residence and contact were allocated. Residence would continue to be allocated to the custodial parent, and contact to the access parent. The reforms could further elaborate on the best interests of the child test according to which these decisions of residence and contact are made. Incorporating a reference to parenting plans might encourage some parents to enter into agreements that allocate the child’s residential time without reference to the language of custody and access. However, in contested cases, residence and contact would continue to be allocated to the custodial and access parents respectively.
In a parenting responsibility scheme, residence and contact would be decided and allocated between parents on the basis of the best interests of the child. Again, the criteria could be general or specific.
In a shared parenting scheme, residence and contact would also have to be decided and allocated on the basis of the best interests of the child. There are few advocates for a shared parenting scheme that requires shared residence or equal residential time with both parents.395 Rather, a shared parenting scheme would likely be a regime in which decision-making authority was shared between the parents, but in which the child’s residential time would still need to be allocated between the parents.
In this respect, then, Options Two and Three are very similar. Both would require that criteria be established to allocate the child’s residential schedule and contact with the non-residential parent.
There are, however, some differences between the options in their approach to contact. A guiding principle for reform is that children should have the opportunity to have meaningful relationships with both their parents after separation and divorce. All three options for reform, then, must allow and encourage such contact. However, in Options One and Two, decisions regarding contact are to be made on the basis of the best interests of the child. That best interests test might include a general statement about the positive value of parent-child contact. However, it would be one factor to balance against a range of others. In Option Three, the emphasis on shared parenting suggests an even stronger bias or presumption in favour of contact. The very idea that shared parenting endorses is that both parents should have ongoing and meaningful relationships with their children. It assumes that this model of post-separation parenting is generally in a child’s best interests. Even without including a legislative presumption in favour of contact within the statutory framework, this is a model for reform that would include a very strong bias in favour of contact. Under a shared parenting regime, any deviation from this bias in favour of contact would have to be established to be in the best interests of the child. It is, again, a concrete example of the balancing of best interests and parental responsibility. In Options One and Two, parental responsibility, including contact, is allocated according to the best interests of the child. In Option Three, a particular allocation of parental responsibility is assumed to be in the best interests of the child, and any deviation from this allocation must then be proven to be in the best interests of the child on a case-by-case basis.
395 As noted above, the Special Joint Committee, supra note 1, did not recommend shared residence.
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