An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
Current common law in Canada is based on the language of custody and access. The Divorce Act, 1985, as well as provincial and territorial legislation dealing with parenting disputes.169 is based on the legal concepts of custody and access. Section 16(1) of the Divorce Act allows a court to make an order of custody or access or both in relation to any child of the marriage. Section 16(4) allows the court to make an order of joint custody. The Divorce Act does not define the meaning of these terms with much precision. Custody is defined as including the
"care, upbringing and any other incident of custody."170 Access is not defined, but section 16(5) provides that a spouse who is granted access
"has the right to make inquiries, and to be given information, as to the health, education and welfare of the child" unless the court orders otherwise.
The Divorce Act provides that decisions regarding custody and access are to be made according to the best interests of the children. Provincial laws governing custody and access are also guided by the best-interests-of-the-child standard. The best interests of the child test is discussed in the section that follows.
The first option for reform of the Divorce Act would be to continue to work within this model of custody and access. It would retain the existing terminology of custody and access, while identifying the particular aspects of the existing law that are in need of reform. Specifically, this option would explore the possibilities of:
- (1) elaborating the best interests of the child test to provide a more comprehensive statutory list of criteria,
- (2) including a list of parental responsibilities,
- (3) incorporating a reference to parenting plans, and
- (4) incorporating a reference to dispute resolution and other divorce services.
Under the Divorce Act 1985, the best interests of the child is the sole criterion for determining child custody and access. Section 16(8) of the Divorce Act states that, in making an order for custody or access,
"the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child". Section 16(9) provides that
"the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child." Section 16(10) further provides that, in making an order for custody or access,
"the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child, and for that purpose, shall take into consideration the willingness of the person for
whom custody is sought to facilitate such contact."
Many commentators have argued that the best-interests-of-the-child standard is too vague, giving courts little guidance on the kinds of factors that ought to be taken into account and, thereby, allowing courts to make determinations on the basis of their own subjective views.171 Some have suggested that the standard should be rejected altogether, while others have argued that the standard could be given more specificity, either through the articulation of presumptions, or a comprehensive list of factors.
This section explores this latter option—of providing a more elaborate list of factors to take into account when determining the best interests of the child. It will review the proposals of the Special Joint Committee, as well as factors currently articulated in provincial legislation, the recommendations of the Canadian Bar Association submission, and the ways in which other jurisdictions have attempted to provide a more comprehensive definition of the best interests of the child.
Recommendations of the Special Joint Committee
The Special Joint Committee recommended that the Divorce Act be amended to include a list of criteria to be taken into account when determining the best interests of the child. The Report noted that many witnesses were of the view that including a
"list of guiding criteria would improve the predictability of results and encourage consideration of factors considered particularly important to the well-being of the child."172 It recommended the following list of criteria:
There are some limitations to this list of criteria for the purposes of Option One—that is, reform within the existing regime of custody and access. The list of factors recommended by the Special Joint Committee presupposes a range of other changes to the Act, specifically those to include the ideas of shared parenting and parenting plans. The former is not part of this option for reform, but will be discussed in Option Three below. The latter, which may or may not be part of this option for reform, and the elaboration of the best interests of the child test will depend on the policy decision made on this related, but separate question.
It should also be noted that the list of the Special Joint Committee includes no reference to continuity of care or past caretaking. This is a significant omission, and the importance of this factor when determining the best-interests-of-the-child is discussed further below.
Other Possible Factors
Ontario’s Children’s Law Reform Act provides a more extensive list of factors to be taken into account when determining the best interests of the child for the purposes of custody and access. Section 24(2) directs the court to consider
all the needs and circumstances of the child, including:
In its recommendations, the National Family Law Section of the CBA suggested a list of factors that includes all of those listed in the Children’s Law Reform Act, as well as these:
- the ability of each person seeking custody or access to act as a parent and fulfil the parental responsibilities set out in this Act;
- the caregiving role assumed by each person applying for custody during the child’s life;
- any past history of family violence perpetrated by any party applying for custody or access; and
- the importance and benefit to the child of having an ongoing relationship with his or her parents.
These examples do not in any way exhaust the possibilities of factors that could be included in an elaboration of the best interests of the child test. However, the recommendations of the Canadian Bar Association are useful when considering how to elaborate the best interests of the child test within Option One. Unlike the recommendations of the Special Joint Committee, the elaboration of the best interests test is specifically directed to the current custody and access regime. It builds on the criteria already included in provincial legislation, and it also has the advantage of adding several important factors.
First, it would add a reference to parental responsibilities and is, therefore, intended to bring the best interests of the child test in line with an articulation of parental responsibility (to be discussed in further detail in the next section). This is clearly consistent with the general guiding principle of promoting a child-centred approach by focusing on parental responsibilities rather than parenting rights.
Second, it would add a reference to family violence and is, therefore, consistent with the general guiding principle of protecting children from violence and abuse.
Third, it would add a reference to the importance to the child of having an ongoing relationship with his or her parents and would, therefore, be consistent with the general guiding principle of promoting meaningful relationships with both parents after separation and divorce.
Finally, it would add a reference to caregiving. The importance of this factor in the determination of the best interests of the child is discussed in further detail below.
Continuity of Care
Many jurisdictions that have a list of factors to be considered in determining the best interests of the child include a reference to the importance of continuity of care, or the caregiving role assumed by each person applying for custody of the child.
While provincial legislation does not specifically mention past caretaking, there are provisions in several provincial statutes that are directed to issues of continuity and stability. For example, the New Brunswick legislation includes a reference to the
"effect upon the child of any disruption of the child’s sense of continuity." The Ontario and Newfoundland legislation both include references to
"the length of time the child has lived in a stable environment," and to
"the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and the special needs of the child."
Past and Primary Caregiving
In the United States, while only West Virginia applies a judicial presumption in favour of the primary caretaker, several jurisdictions specifically require a consideration of past caretaking roles when determining parenting disputes. The Louisiana statute requires a consideration of
"the responsibility for the care and rearing of the child previously exercised by each party." The New Jersey statute requires a consideration of the
"extent and quality of time spent with the child prior to or subsequent to the separation." Virginia requires a consideration of
"the role each parent has played and will play in the future, in the upbringing and care of the child."175 In Minnesota, the statute provides that the court should take into account, when determining the best interest of the child, the child’s primary caretaker, but that it ought not operate as a presumption. Several other jurisdictions require a
consideration of past caretaking roles when deciding whether to order joint or sole custody.176 The Washington Parenting Act requires the court, when determining the child’s residential schedule, to give the greatest weight to
"the relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing caretaking functions relating to the daily needs of the child."177
Recently, the issue of continuity has begun to be addressed through a new concept of approximation.178 The idea behind the approximation rule is that parenting arrangements after separation and divorce should approximate the parenting arrangements prior to separation and divorce. The American Law Institute has recently recommended the adoption of this approximation rule as the basis for the allocation of custodial responsibility. The Institute is of the view that this approach can promote a number of important objectives, including yielding more predictable and easily adjudicated results, and preserving the greatest degree of stability in the child’s life. The approach is intended to take into account the importance of past caretaking patterns, and attempts to model the post-divorce family on these patterns.
The approximation standard is… designed to correspond reasonably well to the parties’ actual expectations and preferences…. The way the parents choose to divide responsibility when the family lived together anchors the negotiations in their own lived experience.179
The Institute recognizes that neither a parent’s nor a child’s life can stay the same after separation. Separation may make it necessary for parents to change their work schedules and rearrange other obligations in order to care for their children. As a result, the approach must be flexible, and cannot attempt simply to replicate pre-separation parenting. But, it does use pre-separation parenting as a basis for restructuring the parental relationship.180
Importance of Continuity as a Factor
The concepts of past caregiving, primary caregiving or approximation are all intended to take into account the importance of continuity of care for a child following separation and divorce. While there is considerable variation in the particular way in which the legal regimes of different jurisdictions deal with this factor, from establishing a presumption to including it in a list of factors, there is considerable agreement that continuity and stability at least needs to be taken into account when considering the needs of children following separation and divorce.
The importance of continuity and stability is recognized as an important principle by the Canadian federal government. Strategy for Reform recognizes, as a general principle, that
"the best interests of the child are served by parenting arrangements that best foster the child’s emotional growth, health, stability, and physical care, taking into account the age and the stage of development of the child" [Emphasis added].181
The general guiding principle that no model of post-separation parenting will work for all children, and the resulting rejection of any presumptions in favour of a particular parenting arrangement means that the Divorce Act could not be reformed to include a presumption in favour of the primary caregiver. However, there is no compelling reason to reject caregiving as a factor in determining the best interests of children. Rather, there is considerable evidence to suggest that children’s interests are served and promoted by taking caregiving into account, and that it ought to be included as a factor in the elaboration of the best interests of the child standard.
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