An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
IMPLICATIONS OF REFORM FOR OTHER LEGAL REGULATION (continued)
Custody and Access Laws
Abandoning the language of custody and access in the Divorce Act would have serious implications if the provinces and territories did not adopt similar changes in their legislation dealing with custody and access.377 The confusion and difficulties created by divided jurisdiction in family law would only be exacerbated if the Divorce Act abandoned the language of custody and access without a similar commitment from the provinces and territories. Unmarried couples who separated and married couples who separated but did not petition for divorce would be governed by provincial or territorial law of custody and access, while divorcing couples would be governed by the new parenting regime. This would significantly contribute to the confusion related to the divided jurisdiction of the family justice system, which is already difficult for separating couples to negotiate. Indeed, the trend in the family justice system in recent years has been towards more uniformity, as seen, for example, in the Federal Child Support Guidelines and the move towards unified family courts. While federal, provincial and territorial laws on custody and access do diverge, they at least have been based on the same legal concepts. Reforming the federal legislation without a similar commitment from the provinces and territories would be a significant departure from this trend towards greater uniformity, and the efforts to make the family justice system more user-friendly.
Reform at the federal level only could introduce negative incentives into the family justice system. The decision of whether to divorce or simply separate could come to be influenced or determined by a parent’s view of which Act would be more favorable to his or her circumstances. If a parent was of the view that his or her position would be more favorable under the federal Divorce Act than provincial or territorial legislation, he or she may decide to proceed to divorce, rather than simply separate. This could have the unintended consequence of encouraging precipitous divorces, rather than encouraging trial separations.
Further, reform at the federal level only might skew decisions regarding the most desirable way to resolve parenting disputes. Many married couples who separate resolve their support, custody and access disputes through provincial or territorial laws. Many negotiate separation agreements under provincial or territorial legislation. Others who are unable to resolve their own dispute resort to courts under provincial or territorial legislation. These courts are generally less formal, less expensive, and more accessible for unrepresented litigants. Reforming custody and access law at the federal level only could distort these decisions. However, if one parent was of the view that his or her position was more favourable under federal law, he or she may be encouraged to initiate court proceedings rather pursuing the preferable option of negotiating his or her own settlement. Similarly, a parent who believed that his or her position was better under federal law might be encouraged to bring a petition for divorce. In the absence of a unified family court, the dispute would then end up in the more formal and expensive superior court.
Default positions—that is, custody rights in the absence of a court order or agreement—could also become more confusing. As described above, this question of default positions is already quite complex under the existing law. The Divorce Act has jurisdiction only over custody and access disputes respecting a child of the marriage upon or after the granting of a divorce. Prior to an application for divorce, custody and access disputes are governed by provincial or territorial legislation. If a divorce judgment is silent on the issue of custody and access, an order under provincial or territorial legislation remains valid. Further, if there is no order, either under provincial-territorial or federal law, then the default position would be whatever provincial and territorial law established. In other words, the default position under federal law (i.e. the situation in the absence of an agreement or order) is the provincial or territorial law.378
If the federal, provincial, and territorial governments agree to reform their laws on the basis of the parental responsibility model, provincial and territorial laws could be amended to reflect a desired default position (of joint parental responsibility until an agreement or order provides otherwise). However, if the federal government decided to move to such a model, but the provinces and territories did not, then the default position would be continue to be framed in terms of custody and access under provincial and territorial law. In other words, the default position in a regime that abandoned custody and access would still be custody and access. In the absence of a court order or agreement, divorcing parents would be governed by the provincial and territorial default position, which continues to be framed in the language of custody and access.
As discussed above, the Divorce Act could establish a default position that would apply once a divorce action was initiated. However, it would be crucial that such a default position not automatically invalidate separation agreements and court orders that separating parents may have obtained under provincial and territorial law. Given the principle of federal paramouncy (according to which custody and access agreements or orders under provincial and territorial legislation are only valid to the extent that they are not in conflict with federal legislation), this would have to be made explicit. And, as also discussed above, it is not particularly clear that there is any advantage to establishing a default position in the federal law. While it is important to know in whom parental responsibility would be vested in the absence of a court order or agreement, this need not be done within a federal statute. The point is not to argue for or against the establishment of a federal default position but, rather, to highlight the confusion that could be created if the federal Divorce Act is reformed without a similar commitment to reform by the provincial and territorial governments.
Any attempt to move away from the language of custody and access in post-separation parenting would have to consider the broader impact on the legal regulation of parenting. Provincial and territorial legislation dealing with custody and access regulates not only post-separation parenting, but also pre-separation parenting, and parenting involving parents who have never lived together. While some provinces use the language of guardianship, many use the language of custody to describe the rights of parents who live together. All of these laws would need to be reformed to reflect the new language. In this regard, the language of joint parental responsibility would likely be equally appropriate for pre-separation parenting.
Custody and Access Enforcement Laws
Provincial and territorial legislation dealing with the enforcement of custody and access orders uses the language of custody and access. If federal and provincial and territorial laws abandoned the language of custody and access, then the laws would need to include the new language of parenting orders.
In Manitoba, for example, the Child Custody Enforcement Act, R.S.M. 1987, c.C360, allows the court to take action to enforce custody orders, including orders to prevent a child from being removed from the province, and to locate and take a child from a person who is unlawfully withholding the child. The Act allows the court to enforce an order made by an extra-provincial tribunal, but it also allows the court to make a new order in place of an extra-provincial order when it is satisfied that the child does not have a real and substantial connection with the local in which the custody order was made. In making such a new order, the Act specifies that the court shall
"treat the question of custody as of paramount importance and the question of access or visitation as of secondary importance."379 The legislation, thus, grants differing degrees of protection to custody rights and access rights.
Abandoning the language of custody and access would require a re-examination of this provision. If custody and access orders were replaced with residence and contact orders, the language could be changed or added accordingly.380 However, if the language of residence and contact was not used within a new parenting responsibility regime, it would be difficult to sustain this provision. For example, if the legislation used the language of a child’s residential schedule, it would be difficult to sustain the distinction in the existing provision.
Changing the language of custody and access would have a similar impact on the provincial and territorial laws of child support as discussed in relation to the Federal Child Support Guidelines. Provincial and territorial laws dealing with child support are all currently based on the framework of custody, and most have been reformed according to the Federal Child Support Guidelines.381 The implications of abandoning the language of custody and access at the federal and provincial and territorial levels, therefore, raise similar challenges for these child support laws.
If the provinces and territories also abandoned the language of custody and access, they would have to consider similar amendments to their child support laws, as discussed above. If, on the other hand, the provinces and territories did not reform their custody laws alongside the federal reforms (and, therefore, not did reform their support laws either), separating parents could once again face the problem of divergent federal, provincial and territorial regimes. Changing the federal laws without a similar change at the provincial and territorial level would significantly undermine the advancements that have been made towards uniformity in child support law as a result of the adoption of the Guidelines.
Other Family Laws
If the provinces and territories abandoned the language of custody and access, they would have to undertake a review of all other family laws that incorporate this language. For example, the Ontario Family Law Act provides that a separation agreement may include provisions dealing with a right to custody and access. This provision, which is directed to post-separation parenting, could be easily reformed to reflect the new language of post-separation parenting. Laws that are specifically directed to post-separation parenting could, and should, be changed to reflect this new language. The more challenging laws, however, are those that are not specifically directed to post-separation parenting, but to parenting rights and responsibilities more generally, as discussed further below.
The language of custody and access appears in the context of provincial and territorial child-welfare legislation. While child welfare legislation varies considerably across jurisdictions, the language of custody often appears in these statutes. Sometimes, it is used in relation to parental rights in child protection proceedings. In other child-protection statutes, the language of guardianship is used rather than that of custody, and guardianship means all the rights, duties and obligations of parents in relation to their children. The language of custody also appears in child-protection statutes in relation to a child being in the care and control of child-welfare authorities.
For example, the Ontario Child and Family Services Act uses the phrase
"lawful custody" of a child to deal with children in their parent’s custody, as well as children in the custody of child-welfare authorities. Similarly, the British Columbia Child, Family and Community Services Act, RSBC 1986, Chapter 46, uses the language of custody, care and guardianship. A
"child in care" is defined as a child who is in the custody, care or guardianship of the child-welfare authorities.
"Custody" includes care and guardianship. Guardianship is, in turn defined as including
"all the rights, duties and responsibilities of a parent." Parent is defined to include
"a person to whom a custody of a child has been granted by a court of competent jurisdiction or by agreement."
The concept of custody, then, runs throughout the child-protection regime, which sets out the framework for taking children into care, the rights of those children and their parents, and the responsibilities of child-welfare authorities. Custody is the overriding concept that includes both physical care and legal control. It is used not only to describe the rights and responsibilities of parents, but also to describe those same rights and responsibilities when children are in the care of the child-welfare authorities. In this context, the word custody describes much more than the phrase post-separation parenting. Custody is, rather, the whole package of rights and responsibilities in relation to children that can be held by parents or child-welfare authorities.
Several child-protection statutes use the language of access to deal with the rights of parents to see children who are under a temporary care order.382
Unlike the family laws examined above, child-protection legislation is not specifically directed to post-separation parenting. It is intended to include all parents—single, married, cohabiting, separated and divorced. Language appropriate for post-separation parenting may not be equally appropriate for pre-separation parenting, and it may not be particularly appropriate for the regulation of children in the custody of the state. Indeed, if the language of custody is appropriate anywhere in relation to children, it is in the context of children in the care of state institutions.
Child-protection legislation needs language to represent the package of rights and responsibilities for children. Any provisions in child-protection legislation that are specifically directed to the rights and responsibilities of parents over their children must be able to take into account the way in which parental responsibility may be allocated after separation (for example, when parents share decision-making authority). For example, under the Ontario Child and Family Services Act a parent is defined to include both parents when both have custody of the child, or one parent when that parent has lawful custody of the child. If the language of post-separation parenting moved away from the idea of custody, there would have to be some way to clearly identify who was a parent under this legislation. The least complicated way of doing so would be through a deeming provision within the parenting legislation. Alternatively, the language could be changed to specify that a parent was a person with specific parenting responsibility over a child, such as legal decision-making authority. However, the child-protection legislation would still need language to describe the full package of rights and responsibilities over children, specifically in relation to children in care of child-welfare authorities. But, it may be difficult finding language that is equally appropriate in all of these contexts.383
The use of the language of access in child-protection legislation raises similar dilemmas. Any move to abandon the language of access in the context of separation and divorce cannot assume that the same considerations would apply in the context of child protection. Although in both contexts access deals with the rights of parents to visit their children when those children are in someone else’s custody, state custody and parental custody raise altogether different issues. A child is in the state’s custody because he or she is in need of protection from his or her parents. A child is in one parent’s custody because the parents have separated, and a court order or agreement has decided that it is in the best interests of the child. Changing the language of access in the context of post-separation parenting, to affirm parental status and their ongoing involvement in the lives of the children, would not work in the child-protection context.
A province or territory committed to abandoning the language of custody and access in the context of post-separation parenting could move away from that language in child protection by replacing it with other language. Not all provinces and territories use the language of custody when regulating child protection. For example, the Manitoba Child and Family Services Act R.S.M. 1987, does not use the language of custody but, rather, refers to
"care while under apprehension,"
"parental rights and obligations,"
"temporary guardian" and
"permanent guardian."384 Child-protection legislation could be amended to use similar language, but careful consideration would need to be given to the interaction of this language with other provincial and territorial legislation regulating children.385
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