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

2001-FCY-2E

IMPLICATIONS OF REFORM FOR OTHER LEGAL REGULATION (continued)

PROVINCIAL AND TERRITORIAL LEGISLATION (continued)

Adoption

A number of provincial and territorial adoption laws also rely on the concept of custody. For example, under the Ontario Child and Family Services Act, consent for adoption is required from a child’s parent, and includes in the definition of parent "an individual who, under a written agreement or court order… has custody of the child or has a right of access to the child."386 Section 137(5) provides that when a child is placed for adoption by an agency, and all required consents have been given, "the rights and responsibilities of the child’s parents with respect to the child’s custody, care and control are transferred to the society" until such time as the consent is withdrawn or an order is made for the child’s adoption.

The Manitoba Adoption Act, S.M. 1997, c.47, does not use the language of custody, but the phrase "care and control of a child" appears in the Act. For example, in the context of de facto adoptions, an application for an order for adoption can be made by an individual or couple who have had "care and control of the child" for at least two consecutive years.387 Similarly, before ordering any adoption, the court must be satisfied that the child has resided with the applicant and "the applicant has had care and control of the child."388 Care and control is not defined in the Adoption Act; however; in the Family Maintenance Act, custody is defined as "care and control of the child."

The British Columbia Adoption Act RSBC 1996, Chapter 5, also uses the language of custody and access. It refers to children "in the continuing custody" of child-welfare authorities, as well as to persons with "care and custody of a child." It deals with the transfer of care and custody of the child to the child-welfare agency, as well as from that agency to the prospective parents. The Act defines care and custody as including the ability of a person to consent to a child’s health care, and a child’s participation in school, social and recreational activities. It also relies on the language of access in the context of persons who are entitled to receive a notice of an application for adoption. Any person who has a right of access to a child by court order or agreement must receive notice of an application for adoption.

As with child-protection legislation, provincial adoption legislation must be able to take into account the way in which parental responsibility may be allocated after separation. If the language of custody is no longer used to describe the allocation of decision-making authority over a child after separation, it will be more difficult for adoption legislation to use the language of lawful custody to identify a child’s parent. Given that adoption is all about the transfer of full parental status from the biological parents to the adoptive parents, it may be that adoption legislation could adopt the language of parental responsibility, if parental responsibility was defined as the all the rights, duties, obligations and responsibilities over children. A parent then could be defined as any person with parental responsibility. More narrowly, it could be defined as any person with decision-making authority over the child. The question that would need to be revisited in adoption legislation, then, would be which aspect of parental responsibility was relevant in designating a person a parent.

Alternatively, the post-separation parenting legislation could include a deeming provision, as discussed above. Although there are certain disadvantages to deeming provisions, it is an approach that would be considerably easier than undertaking a comprehensive review and reform of the adoption legislation.

Other Legislation Relying on the Language of Custody

There are many other provincial and territorial statutes that rely on the concept of custody of a child, that would require consideration if the language of custody and access was abandoned in the Divorce Act, in provincial or territorial custody law or in both or all three. Many provincial and territorial laws provide rights and obligations to "a person having lawful custody" of a child. Some laws define a parent as "a person having lawful custody." Some laws also use the language of guardianship, which is uniformly defined, but deals with a person who has some legal rights and responsibilities for a child. Still other laws use the phrases custody and control or care and control of a child.

The following discussion highlights some of the many ways in which the concepts of custody and guardianship confer rights and responsibilities in a range of provincial legislation.

Person Having Lawful Custody

In Ontario, a number of statutes confer rights and responsibilities to a "person having lawful custody" of a child. For example, the Change of Name Act R.S.O.1990, c.C.7, requires written consent of every person who has lawful custody of the child in order to change the name of a child. The Vital Statistics Act S.O., C.s.26, similarly provides that a person with lawful custody of a child under the age of 12 whose birth was registered in Ontario may elect to change the child’s forename or surname. If two persons have lawful custody of a child, the election may only be made by both persons. The Health Protection and Promotion Act, R.S.O. 1990, c.H.7, requires that consent to release medical information must be provided by a parent or other person having lawful custody of the child.389 The Freedom of Information and Protection Act similarly provides that any right or power under the Act can be exercised, if the person is younger than 16, by a person having lawful custody.

In British Columbia, a number of statutes also confer rights and responsibilities to a "person who has lawful custody." For example, the Infants Act, R.S.B.C. 1996 ch.223, provides that when a child usually resides with a person who is not a parent, but that person has lawful custody, then the child’s domicile is with that person. The Family Relations Act allows a person with lawful custody of a child to apply for an order restraining harassment. The Name Act, R.S.B.C. 1996 Chapter 328, provides that if an applicant has minor children of the marriage of which he or she has lawful custody, he or she may apply to change the name of the children, but a court must acquire written consent of the other parent.

These provisions all appear to be directed to the persons with legal decision-making authority over the child. If the language of custody and access was abandoned, these statutory provisions would need to be amended to make this explicit—that it is intended to deal with legal decision-making authority, and not, for example, the residential parent.

Care and Control of a Child

Some provincial and territorial statutes confer rights and responsibilities on persons "with care and control of a child." The Manitoba Parental Responsibility Act, S.M., 1996, c.61, for example, defines a parent as "a biological parent or a person declared to be the parent of a child… [who] is responsible for the care and control of the child." Under this Act, parents are held accountable for the activities of their children in relation to the property of other people. The Act does not specifically use the language of custody, but of care and control (though other Manitoba statutes define custody as "the care and control of a child" ).390

It is not immediately clear how the idea of care and control could be translated into the new parenting language. Care and control seems to be intended to represent the full package of rights and responsibilities that are associated with custody—both physical care and legal control. As such, the concept would not be captured by the phrase residential parent, since it includes more than physical care. However, it is also not clear that it would be captured by decision-making authority, since in its current form, it also appears to include the ability to supervise and control a child, which is related to a child’s residential parent or physical caregiver.

Care and Custody of a Child

Yet another variation found in provincial statutes is "care and custody of a child." For example, the Ontario Child and Family Services Act, as discussed above in relation to child protection and adoption, uses the language of "care and custody of a child." This phrase is used to describe the making of temporary orders for children during adjournments of child-protection hearings,391 to describe the powers associated with a society and crown wardship,392 as well as to describe interim orders in relation to adoption.393 The British Columbia Adoption Act, as also discussed above, also uses the language of care and custody to describe the package of parental rights and responsibilities that are to be transferred through the process of adoption. In both of these acts, the language of care and custody of the child appears to be intended to describe both physical care and legal control over the child.

Guardianship

A number of provincial and territorial laws use the term guardianship although there is no consistency in its definition. Sometimes, it is defined as a "person who has lawful custody of a child other than a parent" (for example, the Ontario Education Act). In other contexts, it is defined as a person other than a parent who has been appointed guardian of the person of the child by a court of competent jurisdiction (for example, the Manitoba Change of Name Act). To the extent that the definitions of guardian and guardianship are in some way dependent on the language of custody, these definitions would also need to be revisited.

Summary

These examples begin to highlight the different ways in which the language of custody is relied upon by provincial and territorial legislation to confer rights and responsibilities for a child. Because custody under existing law confers a package of rights dealing with both physical care and legal control, these provincial and territorial laws do not distinguish between these two aspects of parental responsibility. If the laws dealing with post-separation parenting were reformed to abandon the language of custody, and to instead specifically allocate these different dimensions of parental responsibility, these laws would need to be revisited to consider which dimension of parental responsibility was at issue. Is it residence that is important (as in child support, for example), or is it decision-making authority (as in a change of name)? Or is it both? Because the law has relied on the concept of custody in which these two dimensions of parental responsibility are united, there has been no need to address this question. However, a move away from the language of custody will necessitate this inquiry.

Assuming that the provinces and territories agree in principle to reform their laws according to the new language of post-separation parenting, each province and territory would have to undertake a statutory audit to examine the way in which the language of custody and access appears in their legislation, and if and how that language could be changed. Amending the laws that rely on the language of custody would be much more complex than simply finding all the laws that use the language of custody and replacing it with the new parenting language. Rather, the particular purpose of each statutory provision would need to be examined, in order to determine which aspect of parental responsibility was at issue, and how the legislation could be changed to include this aspect of parental responsibility in a post-separation context.

Other Legislation

While the examples discussed above all rely on the language of custody, there are at least some laws that do not expressly rely on this language, but that nevertheless effectively require the designation of a custodial parent or a primary caregiver. Any move away from a custodial regime in which a custodial parent or primary care giver could be identified could create problems for these legislative regimes.

As discussed above, the Ontario Works Act is an example of legislation that effectively requires the designation of a custodial parent. The Act, which regulates social assistance, provides assistance only to the parent with whom the child resides. 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 received the Federal Child Tax Benefit. If the parent with whom the child is living is not receiving the benefit, then that parent would not be eligible for social assistance. The Ontario government’s directives further provide that if Canada Customs and Revenue Agency determines that each parent is an equal primary caregiver, the benefit may be split between them, with each parent receiving the benefit 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 the child a month at a time. Joint custody arrangements, wherein a custodial or primary caregiver parent is not identifiable, are already causing problems for parents who are seeking benefits under this Act. If a parenting regime was adopted in which the language of custody and access was abandoned altogether in favour of either parental responsibility or shared parenting, these problems would only be intensified for parents requiring social assistance.

A parental responsibility or shared parenting scheme could make it more difficult to identify a custodial or primary caregiver and thereby present further obstacles for parents seeking social assistance benefits. However, in both regimes, it would likely still be possible to identify a residential parent. The term residential parent could replace custodial parent or primary caregiver without seriously compromising the integrity of the schemes. The serious difficulty would arise in situations of joint physical custody, when it was not possible to identify a residential parent.

The Ontario Works Act is also indicative of the fact that the implications of changing the language of post-separation parenting may not be easily identifiable through a search of the terms custody, custodial parent or lawful custody. This Act does not actually rely on this language, and yet the eligibility of parents for benefits under the Act may be seriously affected by a move towards a shared parenting regime.

CONCLUSION

Under the existing law, the term custody represents the full package of rights and responsibilities over children. It involves both physical care and legal control over the child. When statutes rely on the language of custody, it is not necessary to specify which aspects of parental responsibility are involved, since custody embodies both the child’s residence and all decision-making authority over the child.

The reform of custody and access law according to either a parental responsibility model or a shared parenting model involves a move away from the allocation of such a full package of rights and responsibilities to one parent after separation and divorce. Rather, both options for reform involve, to differing degrees, a disarticulation of the various aspects of parental responsibility. In a parental responsibility model, residence, contact and decision-making authority would each be allocated according to the best interests of the child. In a shared parenting model, residence and contact would be allocated according to the best interests of the child, and decision-making authority would be shared between parents unless it was not in the best interests of child to do so. In both of these options for reform, physical care and legal control no longer go automatically hand-in-hand.

As a result of this disarticulation of care and control under either of these two options for reform, each statute that currently relies on the language of custody would have be revisited to consider how, if at all, it can be amended to be brought in line with the changes. Sometimes, the use of the term custody is intended to indicate the parent with physical care of the child. More often, however, the use of the term custody appears to be intended to indicate the parent with legal control over the child. In the case of the former, it would be possible to amend the statutory language to include a reference to the residential parent. In the latter case, it would be possible to amend the statutory language to include a reference to the parent(s) with decision-making authority over the child.394

The examples reviewed in this section are intended to highlight the implications for a broad range of federal and provincial and territorial legislation that relies on this language of moving away from the language of custody and access in post-separation parenting. It is not intended as a comprehensive review of all the affected statutes. Rather, the federal, provincial and territorial governments would have to undertake a comprehensive statutory audit of all of their laws that rely on the language of custody and access, and determine if and how these laws could or should, be reformed to reflect the change in post-separation parenting language. The examples reviewed here demonstrate that this cannot be done by simply replacing the language of custody and access with the new language of post-separation parenting. The task at hand would be far more complicated, involving an examination of the context and purpose of the use of the language of custody in each of these statutes, in order to determine which element of parental responsibility is relevant.

Moreover, at least some statutes do not lend themselves to such change. The particular way in which the language of custody is used in the context of child-welfare law, for example, presents a particularly difficult challenge. It is not clear that the legal regulation of children in the care of child-welfare authorities would be best captured by language intended to promote post-separation parenting. At the same time, however, it would be important that such child-welfare legislation be able to take into account the way in which parental responsibility is allocated between parents after separation and divorce.

The implications of moving away from the language of custody and access in post-separation parenting are far-reaching. The easiest approach, as adopted in a number of other jurisdictions, would be to include a general deeming provision for the purposes of other federal, provincial and territorial laws. In so doing, the new language would be restricted to the specific context of post-divorce parenting, and would not attempt to revise the legal regulation of children as a whole. However, it would still be necessary to amend the laws that specifically deal with post-divorce parenting. The laws of child support, custody enforcement and child abduction are all specifically directed to the reality of post-separation parenting. It would be necessary to make these laws consistent with the new language of post-divorce parenting in the Divorce Act and its provincial and territorial equivalents.


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