An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
OPTION ONE: CUSTODY AND ACCESS (continued)
PARENTING PLANS (continued)
If the Divorce Act was amended to include a specific reference to parenting plans, as well as to require that the courts exercise some degree of deference to these private agreements, it would be important to set out any limitations to this private ordering.
As alluded to above, it would be important to consider the relevance of violence, high conflict and inadequate parenting when reviewing and enforcing parenting plans. The existence of family violence, high conflict and inadequate parenting could be listed as factors to be taken into account in reviewing parenting plans. Alternatively, these factors could be identified as specific limitations to parenting plans. For example, the Act could specifically state that the courts should not, or need not, enforce a parenting plan, or any provision thereof, if it finds that a parent has engaged in violence, emotional abuse, high conflict or inadequate parenting.
If parenting plans were to be incorporated into the Divorce Act, it would be necessary to consider the appropriate standard for variation or modification of such plans. As discussed above, the current law requires a material change in circumstances before an existing order or agreement can be varied.219
The question that needs to be addressed is whether this is the appropriate standard for variation of a parenting plan, which is, in effect, a specialized separation agreement.
The approach to modification of parenting plans differs considerably across jurisdictions. The Australian legislation does not allow for a variation or modification of a parenting plan that has been registered with the courts but, rather, requires that the parties revoke the agreement.220 If both of the parties want to modify their agreement, they may apply to have their parenting plan revoked, and then enter into a new agreement. If only one of the parties wants a modification to the agreement, he or she may make an application to have the plan revoked, seek a parenting order or both.221
The American Law Institute has recommended that a court should modify a parenting plan
"in accordance with parental agreement, unless it finds that the agreement is not knowing and voluntary or that it would be harmful to the child."222 In the absence of parental agreement, the ALI proposals suggest that a court should modify a parenting plan if it finds a substantial change in circumstances, and that the change is necessary to the child’s welfare. It also suggests that in exceptional circumstances, a court should be able to modify a plan if it finds that the plan is not working as intended, and in some specific way is manifestly harmful to the child, even in the absence of a substantial change in circumstances.
The Washington Parenting Act provides that a court shall not modify a parenting plan unless it finds a substantial change in circumstances of the child or non-moving party, and the modification is necessary to serve the best interests of the child.223 The Act then sets out specific criteria to take into account when applying this standard to the modification of the specific aspects of the parenting plan. The regime is most restrictive in terms of modifications to residence, in which case it only allows the court to modify a residential schedule in limited circumstances, including parental agreement.224 Changes to dispute resolution, and minor modifications to residential schedules are permitted on the basis of a substantial change of circumstances alone.225
As the ALI has observed, the
"rules for modifying a parenting plan must balance the benefits of stability against the costs of rigidity." The Australian approach of not allowing any modification and requiring instead that the parties revoke their agreement and, effectively, start over again, is unduly cumbersome and rigid. Some modifications of the parenting plans should be allowed. It would be consistent with current practice to allow a parenting plan to be modified when there has been a material change in circumstance. The standard of material change of circumstances is well established in law, and could easily be applied to a regime of mandatory or optional parenting plans.
However, two additional questions need to be addressed. First, should there be any additional restrictions on modification of particular aspects of parenting plans, such as the child’s residential schedule? The Washington legislation provides an interesting example of attempting to balance the particular interests of stability of residence with flexibility of adjusting to new circumstances, and could be a useful model.
Second, should modification be allowed based on parental consent, but absent a material change in circumstances? If the purpose of a parenting plan is to provide a flexible instrument, specifically designed by and for the unique needs of particular separating families, this purpose is likely to be advanced by allowing parents to change their agreement on a consensual basis (subject to the general limitations and restrictions discussed above). The parents should be allowed to make the changes and modifications that they agree are in the best interests of their children. The recommendations of the American Law Institute, therefore, seem compelling. Parents could be allowed to modify their parenting plans based on mutual agreement, if the change is not harmful to the child. Or, the courts could retain more discretion, and allow modifications on mutual consent, provided that the change is in the best interests of the child.
Options for Reform
The particular way in which the Divorce Act should be amended to recognize parenting plans would depend on how the above issues are resolved.
Factor in the Best Interests of the Child Test
The Divorce Act could be reformed to simply include a reference to parenting plans in the list of factors to be considered in the best interests of the child. Such a reform would signal that separating and divorcing parents could enter into parenting plans, and those parenting plans would be considered by the courts. Without additional reform, parenting plans would remain optional in this approach, and there would be no requirements regarding content nor any requirements that the courts defer to the private arrangements of the parties. This approach would not, however, provide much guidance to separating parents, and would therefore be of limited educational value.
New Section on Parenting Plans
The Divorce Act could be reformed to include a new section (or subsection) that provided more details about the legal regulation of parenting plans. While this more detailed approach would be necessary if parenting plans were made mandatory, it could also be used in the context of an optional scheme of parenting plans. The section could set out the required content, the degree of judicial deference (if any), the limitations and the standard for the variation of parenting plans.
It should be noted that options (a) and (b) are not mutually exclusive. If a new section was adopted setting out specific provisions for the regulation of parenting plans, the best interests of the child test could also include a reference to the parenting plans submitted by the parties.
Summary and Assessment
If a reference to parenting plans was to be incorporated into the Divorce Act within the existing regime of custody and access, the general objectives of reform would be best advanced by a new section specifically dealing with parenting plans. Such an approach would provide more guidance to separating parents and the courts as to both the role and limitations of parenting plans in resolving parenting disputes.
As suggested in the above discussion, parenting plans would be best incorporated into the existing regime on an optional basis. A mandatory approach does not fit well with a regime that ultimately falls back on language of custody and access in contested cases. The section on parenting plans could provide a general definition of the nature of parenting plans, setting out the particular issues that could be included in a parenting plan. It would be consistent with the general educational objectives of reform to try to direct separating and divorcing parents’ attention to the issues of the child’s residential schedule, the allocation of decision-making authority and a dispute resolution process.
The section could also set out the standard for judicial deference (such as
"knowingly and voluntarily entered," and
"in the best interest of the child" or
"not harmful to the child"), the specific limitations on parenting plans (violence, high conflict and inadequate parenting), and the standard for modification.
It should also be noted that adding a list of parenting responsibilities to the Divorce Act, as discussed above, could be particularly useful if the idea of parenting plans were also incorporated into the legislation. Notwithstanding some of the other difficulties associated with incorporating a list of parenting responsibilities into the Act, such a list could provide guidance to separating and divorcing parents about the kinds of issues that could or should be included in a parenting plan.
Much attention has been given in recent years to a range of support services for divorcing parents. These services, ranging from mediation and arbitration to parenting education and custody assessments, have become increasingly important in the resolution of custodial disputes. The Divorce Act currently provides that lawyers have a duty to inform their clients of the availability of mediation services.226 There are no other references to support services for divorcing parents within the Act.227 The question to be addressed in this section is whether the Divorce Act should be amended to include a reference to such support services.
While there is an emerging consensus that parenting education is a useful and constructive resource for divorcing parents, the question that remains is whether the Divorce Act should be amended to specifically recognize and mandate such parenting education sessions.
Options for Reform
The Divorce Act could be amended to require all parents seeking a custody or access order to participate in a parenting education program.
As discussed above, moving towards a regime that encourages or requires separating and divorcing parents to attend parenting education courses raises questions of jurisdiction and funding. It would be difficult to make the attendance at parenting education courses mandatory within the Divorce Act if the federal government could not ensure that these courses were, in fact, readily available and accessible across the country.
Court Ordered Where Available
Alternatively, the Divorce Act could be amended to allow the courts to require parents to attend a parenting education program, along the lines found in many American jurisdictions. For example, the Florida legislation provides that a court may require parents to complete a parenting course to
"educate, train, and assist divorcing parents in regard to the consequences of divorce on parents and children."228 The American Law Institute similarly recommends that
"the court should exercise its discretion and order services only when they are feasible and appropriate in light of the local availability, quality or cost of those services."229 In light of the serious jurisdictional and resource implications of establishing mandatory programs, the American Law Institute proposal may be the reasonable alternative.
Mediation and Primary Dispute Resolution
Mediation has become increasingly popular as a method of resolving parenting disputes. The vast majority of family law disputes, including those about custody and access, are resolved without court intervention, through various forms of dispute resolution.230 A range of voluntary mediation services is available across the country to help separating and divorcing parents deal with their custody and access disputes.231 As noted above, however, the only reference to mediation in the Divorce Act is s.9(1), which requires that lawyers advise their clients of the availability of mediation services. Several provinces include references to mediation and conciliation services in their legislation. Other jurisdictions, such as Australia, have placed much greater emphasis on the use of mediation, counselling and other primary dispute-resolution mechanisms. Separating and divorcing parents are encouraged to use primary dispute resolution to resolve their parenting disputes before seeking the intervention of the courts.232
The issue to be addressed is whether and how the Divorce Act could be reformed to place greater emphasis on mediation and other forms of primary dispute resolution within the existing custody and access regime.
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