An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
Separation and divorce are tumultuous for children, as their parents struggle to restructure their parenting relationship. Legal conflicts over parenting arrangements can be protracted and bitter. Increasing public attention has been directed to the question of whether the current legal regime is up to the task of facilitating the restructuring of parental relationships following separation and divorce in a way that promotes the best interests of children.
The federal government established the Special Joint Committee on Child Custody and Access in 1997 to study the issue. The Committee released its report, For the Sake of the Children, in 1998, recommending a range of sweeping reforms to custody and access law.1 The government, in its response, entitled Strategy for Reform, endorsed the need for reform to the current law.2
The objective of this research paper is to evaluate three options for reform. Option One works within the current language of custody and access. Option Two proposes a neutral model of parenting responsibility and parenting orders. Option Three is based on a model of shared parenting.
The overriding principle guiding the analysis of these three options is the best interests of the child, in accordance with Canada’s international obligations under the United Nations Convention on the Rights of the Child. Article 3 of the Convention says that in all actions concerning children,
"the best interests of the child shall be a primary consideration." Within each model, the general standard for restructuring parental relationships and resolving parenting disputes must continue to be the best interests of the child. The more difficult question is how this general standard should be given specific content—that is, what exactly is in the best interests of the children when their parents’ relationship breaks down?
The paper begins with a discussion of the objectives of reform, and the particular challenges that face any reform of the legal regulation of child custody and access. This initial section reviews a number of themes and issues that run throughout the paper, and that must be addressed in any option for reform. Included among the issues to be considered are the importance of protecting children from violence, high conflict and inadequate parenting, the role of private ordering and parenting plans in the resolution of parenting issues during separation and divorce, and the importance of a range of divorce support services. This section also addresses more general questions raised by each option for reform, such as the potential role of terminological change in reducing conflict and promoting cooperation, as well as the general role of the law in encouraging and promoting attitudinal and behavioural change among divorcing parents.
The second section of the paper examines the ways in which other jurisdictions have attempted to meet the challenges of reforming custody and access laws. Particular attention will be given to the reforms adopted in the United Kingdom, Australia, and the states of Washington and Maine, although examples will also be drawn from a number of other jurisdictions. The paper subsequently draws on the experience of these other jurisdictions when examining and evaluating the three options for reform.
The third section then turns to the analysis of the three options for reform. The discussion of each option considers questions of design—how could or should each of the options for reform be designed. It explores the choices that need to be considered in designing the options, and attempts to evaluate the advantages and disadvantages of the various policy choices and approaches. The discussion attempts, moreover, to evaluate the relative advantages and disadvantages of each of the options, considering the extent to which each might advance the guiding principles for reform, and the general reform objectives.
The focus of this discussion paper is on reforms to the Divorce Act. However, as custody and access is an area divided between federal and provincial jurisdictions, any amendment to the custody and access provisions of the Divorce Act could have far-reaching implications for the provinces and territories. While the Divorce Act governs custody and access disputes of divorcing couples, the custody and access disputes of unmarried parents, or married parents who have separated without initiating divorce proceedings are regulated by provincial and territorial statutes.3 Although there are already significant differences between the relevant provincial and territorial statutes and the Divorce Act (as well as among the provincial and territorial statutes), the existing laws are all based on the language of custody and access. Any reform to the Divorce Act that abandons that language in favour of terms such as parental responsibility or shared parenting could create serious problems for the family justice system if not carefully coordinated with the provinces and territories.
Divided jurisdiction has long created confusion among family law litigants, uncertain about whether their disputes are governed by federal or provincial and territorial law, and confused about whether they should go to provincial or superior courts. Changing the federal law of custody and access without a commitment to similar change at the provincial or territorial level would add to the confusion and frustration so frequently articulated by family law litigants. Unmarried parents and married parents who had separated but not yet initiated divorce proceedings would be covered by provincial or territorial laws of custody and access, whereas divorcing couples would be covered by the federal law based on parental responsibility or shared parenting.
Although it is beyond the scope of this paper to examine provincial/territorial laws in any detail, any reform to the Divorce Act can only realistically be pursued in close consultation with the provinces and territories, and each will have to consider the implications of these suggested reforms within its own statutory framework. The policy choices involved in designing and reforming the law of custody and access, and the advantages and disadvantages of these three options for reform would apply to federal and provincial and territorial reform initiatives alike.
Any evaluation of the three options for reform must begin with a consideration of the objectives for reform. A number of guiding principles have been identified as a basis for reform. This section begins with a brief review of the guiding principles articulated by the Federal/Provincial/Territorial Family Law Committee, and those articulated in the government’s response to the Special Joint Committee. The paper then attempts to pull these principles together, and identify the underlying objectives for reform. It subsequently relies on these guiding principles and objectives for the evaluation and development of any option for reform.
The Federal/Provincial/Territorial Family Law Committee has articulated the following guiding principles for the reform of custody and access laws:
- ensuring that the needs and well-being of children are paramount;
- promoting an approach that recognizes that no one mode of post-separation parenting will be ideal for all children, and that takes into account how children and youth at different stages of development experience separation and divorce;
- supporting measures that protect children from violence, conflict, abuse and economic hardship;
- recognizing that children and youth benefit from the opportunity to develop and maintain meaningful relationships with both parents, when it is safe and positive to do so;
- recognizing that children and youth benefit from the opportunity to develop and maintain meaningful relationships with grandparents and other extended family members, when it is safe and positive to do so;
- recognizing the positive contributions of culture and religion in children’s lives;
- promoting non-adversarial dispute resolution mechanisms, but retaining court hearings as mechanisms of last resort;
- providing legislative clarity for the legal responsibilities of caring for children; and
- recognizing the overlapping jurisdiction related to custody and access in Canada, and making efforts to provide coordinated and complementary legislation and services.
The government, in Strategy for Reform, has identified a number of similar principles to structure and guide the reform of custody and access. These include the following:
- focusing on the child: a child-centred perspective that promotes reforms to minimize the negative impact of divorce on children, and that shifts the focus of family law from parental rights to parental responsibilities;
- maintaining meaningful relationships: recognizing that children benefit from the opportunity to develop and maintain meaningful relationships with both their parents, as well as their extended family;
- managing conflict: promoting an approach that reduces parental conflict and promotes parental cooperation, while recognizing the different levels of conflict that separating and divorcing parents experience, and developing specific responses to deal with them; and
- realizing that one size does not fit all: recognizing that no one model of post-separation parenting will be ideal for all children, and that any reform strategy must allow for flexibility in addressing the unique needs of separating and divorcing families.
Based on these general principles, it is possible to identify a number of general objectives for reforming the legal regulation of child custody and access. The reform is intended to reduce parental conflict and litigation, encourage parental cooperation, and promote meaningful relationships between children and their parents following separation and divorce. At the same time, the reform is intended to address the unique needs of particular families, including the need to protect children from high conflict, violence and inadequate parenting.
At a general level, the objectives of the reform appear to be educational, exhortative and standard-setting: the law of custody and access should establish general standards and principles that guide separating and divorcing parents so they can restructure their parental relationships in a way that promotes the best interests of the children. The law is, in other words, intended to effect attitudinal change in parents. Following the lead of the British and Australian legislative reforms, which are discussed in detail later in this paper, one of the primary aspirations of legislative reform is to make a difference to the way parents approach their children, and their parenting disputes, after separation or divorce.
In particular, the general principles suggest that the aim of the reform is to make a difference in post-separation relationships between parents and children, encouraging parents to continue to be involved in a meaningful way in their children’s lives. The reform also aims to help parenting disputes, encouraging parents to reach their own consensual parental agreements. Both of these aims are, however, qualified by the best interest principle—that is, continued relationship and cooperative parenting arrangements are to be encouraged only to the extent that they are consistent with protecting the best interests of children.
At the same time, any reform must also be able to provide for the needs of those children whose separating parents cannot agree or cooperate, and provide the courts with clear principles for resolving ongoing disputes. The legislative reform must, therefore, be guided by an aspiration for legislative clarity, to provide the courts with clear and predictable principles for resolving parenting disputes, in a way that promotes the best interests of the child.
These general objectives, as well as the more specific guiding principles, are considered when examining each of the options for reform, below. The paper evaluates the extent to which each of the options can promote these objectives and principles.
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