An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
IMPACT OF REFORM ON EXISTING ORDERS AND AGREEMENTS (continued)
Each of the options could significantly advance the objective of protecting children from harm, if appropriate provisions are included in the statutory framework.
The custody and access regime could be improved by incorporating a reference to violence, high conflict and inadequate parenting. A parenting responsibility regime could take these factors into account in the allocation of parental responsibility in parenting orders and parenting plans. A shared parenting regime could also take these factors into account as limiting the presumption in favour of shared parenting. In particular, violence, high conflict and inadequate parenting could be identified as factors that would, or could, limit the presumption in favour of shared decision-making.
The extent to which the models would be able to protect children from these harms would depend less on the model chosen and more on the extent to which the statutory framework specifies how these factors should be taken into account. All three of the options could specify how these factors should be taken into account in the allocation of parental responsibility in parenting orders and parenting plans.
Although it is important that these factors be incorporated into all three options for reform, it is particularly crucial that these factors be identified as limiting a presumption in favour of shared parenting in Option Three. Sharing parenting is not in the best interests of children who have experienced violence, high conflict or inadequate parenting, and the statutory framework must ensure that children from these families do not inadvertently fall into a shared parenting stream.
All three models could incorporate parenting plans into the statutory regimes, particularly optional parenting plans, in which parents are encouraged to reach their own agreements on post-divorce parenting. As discussed, all three options could adopt very similar approaches to the issues of content, criteria for review, restrictions and modification of these optional plans. As discussed, there are very few negative aspects of including parenting plans on an optional basis, with the exception that these plans could be ignored.
The three options are not, however, equally positioned in relation to mandatory parenting plans. A mandatory scheme in which all separating and divorcing parents are required to file parenting plans would be most consistent with a neutral parenting responsibility regime. The idea behind a parenting plan is that it provides a flexible instrument that allows parents to individualize their parenting arrangements according to the particular needs of their children. It makes no assumption in advance of how parenting responsibility ought to be allocated, but allows parents (and, if they do not agree, courts) to make that determination according to their assessment of the best interests of the children.
By contrast, a mandatory scheme would be least consistent with the current regime of custody and access. The objective of a mandatory parenting plan scheme is to encourage parents to think beyond the restrictive categories of custody and access when allocating their parenting responsibility. There would be little incentive for parents in contested cases to even try to do so if, at the end of the day, the courts were going to decide the case on the basis of custody and access. An optional scheme, however, might encourage and allow fewer conflicted parents to allocate their parenting responsibility in more creative ways than custody and access appears to allow.
A shared parenting regime could incorporate a mandatory scheme, although it is not entirely consistent with the idea of encouraging parents to negotiate their own unique parenting arrangements, according to the unique needs of their children. A shared parenting regime begins from the assumption that at least some kind of parenting responsibility, most frequently decision-making, ought to be shared. A mandatory scheme within a shared parenting regime would, therefore, likely begin from an assumption that major decision-making authority is generally shared between parents, and then allow parents to negotiate all the other details of their parenting arrangements.
Each of the models can advance the objective of promoting non-adversarial dispute resolution, by incorporating some reference to divorce-related services. Jurisdictional and funding restraints operate as an obstacle to mandatory divorce-related services in all three models. But all three models could include provisions encouraging the use of these divorce-related services. Each model could incorporate parenting education on an optional or court-ordered basis. Each model could incorporate a reference to the availability of mediation services, as well as allow the court to appoint a mediator on a consensus basis.
A mandatory parenting plan approach might be designed with a particular view to encouraging separating and divorcing parents to use mediation, counselling or some other primary dispute-resolution mechanism to assist in the negotiation of their parenting plans. But, even in a mandatory parenting plan approach, the use of primary dispute resolution processes should remain optional or court-ordered.
There are, however, no significant differences between the three options in terms of these divorce-related services.
It is perhaps nothing short of crystal ball gazing to attempt to assess the differences among what each option for reform is likely to accomplish. As discussed above, no option for reform would be able to realize all of the desired objectives. This concluding section attempts to provide an assessment of the extent to which each model might advance the reform objectives and guiding principles. It concludes with some comments about the general limits of law reform.
Custody and Access
A regime that continues to be based on custody and access will advance some, but not all, of the objectives for reform.
The regime of custody and access could be reformed to better promote the use of non-adversarial dispute resolution. Divorce-related support services could be incorporated into the Divorce Act. In addition to a general statement encouraging parents to consider non-adversarial dispute resolution, parenting education could be incorporated on a court-ordered basis where available. Mediation and other primary dispute-resolution mechanisms could be incorporated on an optional basis. Parenting plans could also be incorporated into the Divorce Act on an optional basis, which could encourage parents to agree on their parenting arrangements. These reforms would help advance the reform objectives of encouraging parents to resolve their disputes in as non-adversarial a manner as possible. While these reforms in some respects only reflect existing practice, their incorporation into the Divorce Act could advance the educational and exhortative objectives of reform—that is, of establishing general standards and principles to guide separating and divorcing parents in the process of dispute resolution.
The regime of custody and access could be reformed to advance the objectives of protecting children from harm, particularly from the harm of violence, conflict and abuse. The Divorce Act could be reformed to specifically incorporate a reference to violence, high conflict and inadequate parenting when considering the best interests of the child and when making custody and access orders and parenting plans.
The regime of custody and access is one in which the best interests of the child remain paramount. The regime could be reformed to elaborate on the content of the best interests of the child. Although there may be some educational value in providing more guidance to parents, professionals and courts about the specific factors that should be taken into account, this reform will not make the outcome of parenting disputes any more predictable, and is not likely to significantly affect the degree of conflict.
Similarly, a list of parenting responsibilities could be added to this regime, which could have some educational and exhortative value, by encouraging parents to turn their attention to the very specific needs of their children. However, as discussed, this list of parenting responsibilities sits awkwardly with a regime that is ultimately based on custody and access. It is not clear how far this regime of custody and access can go in recognizing that parental responsibility continues beyond separation and divorce, and that both parents should continue to be involved in the lives of their children. Although the principle could be affirmed in the best interests of the child test, the prevailing understanding of the language of custody and access would seem to undermine the ability of this regime to advance these objectives.
A regime of parental responsibility could advance many of the reform objectives. First and foremost, it is a regime that moves away from the contested language of custody and access. It is a regime that might be able to take some of the emotional sting out of parenting disputes by avoiding labels that suggest first- and second-class parental status. It is a regime that could advance the reform objective of affirming the parental status of both parents.
It is a regime that focuses on the idea of parental responsibility rather than on parental rights, and emphasizes that this responsibility continues after separation and divorce. It not only affirms the continuing parental involvement in the lives of children, but also focuses attention on the particular dimensions of parental responsibilities. It is a child-centred approach, that attempts to focus attention on children’s needs.
As with custody and access, a regime of parental responsibility could incorporate and encourage the use of divorce-related support services and parenting plans. In this way, the reform could advance the reform objectives of promoting non-adversarial dispute resolution, and encouraging parents to resolve their disputes with as little conflict as possible and without resorting to the courts.
In addition, a regime of parental responsibility could promote the reform objective of protecting children from the harm of violence, conflict and abuse. The regime could carefully specify the relevance of these factors in the allocation of parenting responsibility in parenting orders and parenting plans.
A regime of parental responsibility could also advance the reform objective of recognizing that no one model of post-separation parenting would be ideal for all children. A neutral model of parental responsibility makes no assumptions in advance about how parenting responsibility should be allocated but, rather, allows that responsibility to be allocated according to the best interests of the child in parenting orders and parenting plans. It is a model that embraces flexibility and diversity. It is also a model in which the best interests of the child remains paramount: all allocations of parental responsibility are to be guided by the best-interests principle.
A regime of shared parenting could advance some of the reform objectives. It is a regime that moves beyond the contested language of custody and access, towards a language that affirms the continuing parental status of both parents. It is a regime that can promote the reform objective of recognizing that children benefit from developing and maintaining meaningful relationships with both parents. The very premise of the model is that parenting not only continues after separation and divorce, but that this parenting should be shared.
A regime of shared parenting can also incorporate and encourage the use of divorce related support services and parenting plans. In this way, it is a model that can advance the reform objectives of promoting non-adversarial dispute resolution, and encouraging parents to resolve their disputes with as little conflict as possible and without resorting to the courts.
A regime of shared parenting can advance the reform objective of protecting children from harm, if it carefully specifies the circumstances that would justify a deviation from the principle of sharing. If the legislation did not do so, children who had experienced violence, high conflict and inadequate parenting might become subject to shared parenting arrangements that could be extremely damaging.
A regime of shared parenting does not, however, appear to be able to advance the reform objective of recognizing that no one model of post-separation parenting will be ideal for all children. Rather, it is premised on the idea that a particular mode of parenting in which decision-making is shared is generally in a child’s best interests.
As such, it is not as clear that it is a model in which the best interests of the child are always paramount. Rather, the model is one that presupposes that a particular allocation of parenting responsibility is generally in a child’s best interests, and then requires that deviations from this allocation be justified. Certainly, it is a model that continues to be governed by the idea of the best interests of the child, but does not examine the particular interests of particular children on a case-by-case basis. Rather, it assumes that best interests are generally served by shared decision-making. It is then a slightly, and perhaps subtly, different understanding of what it means for the best interests of the child test to be paramount. At the same time, it is important to emphasize that in the allocation of other aspects of parental responsibility, specifically residence, it is a model that continues to be based on a determination of the best interests of the child on a case by case basis.
Limits of Law Reform
The general objectives of reform are to reduce parental conflict, encourage parental cooperation and promote meaningful relationships between children and their parents while protecting children from harm. The objectives aim to improve the process of dispute resolution by encouraging parents to reach agreements through non-adversarial means. The objectives also aim to improve post-separation and divorce parenting, encouraging ongoing involvement of both parents and cooperative parenting.
Other jurisdictions have pursued similar objectives, and their experience with a myriad of reforms to the law of custody and access suggests that realizing such profound change is a tall order.
Law reform may hold out the most promise in terms of improving the process of dispute resolution. A legal regime can be more or less adversarial, and there does appear to be considerable merit in attempting to reform the Divorce Act to promote a more non-adversarial, court-driven procedure for the resolution of parenting disputes. As discussed, all three options for reform can incorporate a reference to divorce-related support services that encourages the use of primary dispute resolution. It is not clear that such a reference will result in a significant transformation of the current practice of resolving parenting disputes, which already relies very heavily on education, mediation and counselling to help parents work out their parenting arrangements without resorting to court proceedings. It may be the multiple procedural reforms and innovative divorce-related services that the provincial, territorial and federal governments have initiated in recent years that offer the most promise for continuing down the road to more cooperative dispute resolution. However, there is still merit in reforming the Divorce Act to better reflect and, thereby, symbolically endorse this approach.
In terms of the terminology of parenting disputes, it may be that a move away from the language of custody and access might also be of assistance when promoting a less adversarial legal regime. Shared parenting is also a controversial and conflicted term. The presumption around shared decision-making is intended to reduce conflict and promote the continued involvement of both parents in the lives of their children. However, it might also inadvertently lead to a situation in which more parents feel compelled to litigate in order to rebut the presumption. The language of parenting responsibility, as the most neutral language, may be the least adversarial of the three options. Terminological change is not likely, in its own right, to eliminate conflict. However, it may form one small part of a more general set of reforms designed to promote a less adversarial approach to the resolution of parenting disputes.
Further, it is crucial to recognize that no amount of law reform can eliminate all the conflict for separating and divorcing parents. Encouraging non-adversarial dispute resolution would not affect the parenting disputes of high conflict families. In addition, any parenting regime would continue to have to address the needs of separating and divorcing parents who cannot resolve their disputes through non-adversarial means. Any parenting regime would continue to need to rely on the intervention of courts in disputes that would not otherwise go away.
While law reform holds out some promise for improving the process of dispute resolution, it appears to hold out less promise for affecting the allocation of parental responsibility after divorce. The emerging research suggests that law reform does not seem to have a significant impact on the actual allocation of parental responsibility after divorce, which continues to a large extent to reflect pre-divorce patterns. As discussed above, there is a serious question about the extent to which any law reform can promote cooperative co-parenting relationships. A legal regime might encourage parents to consider co-parenting. It might be designed so as to remove any obstacles to co-parenting. But it is ill-equipped to impose or enforce it.396 A legal regime can also encourage ongoing relationships with both parents, but it cannot enforce these relationships if the parents themselves do not want them.
Law reform may be able to affirm the continuing parental responsibilities of mothers and fathers after divorce. All three approaches could incorporate a reference to parental responsibilities and include some statement of principle affirming the parental status of both parents after divorce. However, as discussed, a custody and access regime would have the most difficulty in doing so. A shared parenting regime would be premised on this very idea, but may compromise other countervailing interests. A neutral parenting-responsibility regime is best positioned to both affirm the continuing parental status of both parents, while not sacrificing objectives such as flexibility, protecting children from harm and ensuring that the best interests test remains the cornerstone of all decisions regarding children. However, both a parenting responsibility regime and shared parenting regime would be able to symbolically affirm the importance of continuing parental involvement in the lives of children. Law reform could provide at least some of the affirmation that access parents so strongly desire.
This affirmation may come at a cost. At least some jurisdictions that have moved towards a shared parenting regime have experienced the frustrated expectations of these former access parents, who had expected more from the reform than it was able, or even committed, to deliver. Changing the law can not only eliminate conflict, but it also always runs the risk of creating more conflict. Unrealistic expectations about what law reform can accomplish may only fuel the fires of discontent, rather than douse them.
Finally, the educational and exhortative objectives of reform, of changing attitudes about parenting upon separation and divorce, will depend on a broad range of social factors, difficult to predict and harder to measure. As discussed, the extent to which any reform can bring about the desired result will depend as much, if not more so, on the attitudes of the divorce professionals—the lawyers, judges, mediators, counsellors and educators involved in the separation process. Parents’ attitudes towards their children at the same time of separation and divorce will be shaped in part by what they are told by these professionals. If these divorce professionals promote non-adversarial dispute resolution and continuing parental involvement (as many already do), parents may behave accordingly.
Parents’ understanding of the law and approach to their children, however, depends on a myriad of other factors, ranging from their own beliefs about child rearing to the representation of divorce in the media. A much bigger question (unfortunately without an answer) looms: to what extent can law reform be said to bring about change in attitudes or does it simply reflect changes that have already taken place? Many of the reforms under consideration in the above discussion are based on changes that have already taken place—changes in how divorce professionals practice (such as using non-adversarial approaches), and changes in how parents expect to parent following separation and divorce (such as continued involvement). Other reforms would be trying to bring about new changes (such as cooperative parenting). It is here that law reform is most at risk of making promises that it cannot deliver, and of creating expectations that will only be frustrated by the continuing reality of parenting practices and divorce.
396 Maccoby and Mnookin, supra note 77.
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