An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access
OPTION ONE: CUSTODY AND ACCESS (continued)
REFERENCE TO SUPPORT SERVICES (continued)
Options for Reform
There are a number of ways in which the Divorce Act could be amended to encourage, but not require, parties to consider mediation or other forms of primary dispute resolution.
First, as discussed above, if the Act was amended to require separating parents to attend a general information or parenting education session, parents would then be exposed to information regarding the advantages and disadvantages of mediation. It may be that a mandatory information session would suffice to encourage separating parents to consider the possibility of resolving their parenting disputes in and through mediation, and that no further reform would be required.
Alternatively, the Divorce Act could be amended to allow the courts to specifically require that the parents be informed about mediation. Following the ALI recommendations, the Act could state that
"The court may inform the parents, or require them to be informed about… mediation or other non-judicial procedures designed to help them achieve an agreement." The ALI recommendations further provide that such services should not be ordered unless they are
"available at no cost or at a cost that is reasonable in light of the financial circumstances of each parent. Where one parent’s ability to pay for such services is significantly greater than the other, the court may order that parent to pay some or all of the expenses of the other."233
Statement of Principle
The Act could also, or alternatively, be amended to include a general statement of objectives, which includes the principle that parents should be encouraged to reach their own agreements. The Australian Family Law Act includes a similar statement of principle in the section dealing with the resolution of parenting disputes.234 Although this would not in any way require that separating parents use mediation to resolve their disputes, it might assist in the general educational and exhortative objective of the legislation.
Finally, the Act could also, or alternatively, be amended to allow the courts to appoint a mediator in the cases of custody and access, at the request of the parties. The legislation in Ontario and Newfoundland could be used as a model for this amendment.
In many respect, the courts already rely heavily on a range of services that encourage parties to resolve their disputes without further litigation. Short of requiring mandatory mediation, it is not clear that any of these proposed amendments would actually change the current practice in contested custody and access cases, when the parties are given ample opportunities to resolve their disputes in mediation. However, there may nevertheless be some advantages to including a reference to mediation and other services within the Divorce Act. First, it might promote the educational objective of legislative reform in this area, by encouraging all separating and divorcing parents to at least think about the possibility of mediating their custody disputes. Including a reference to these kinds of mediation services in the Divorce Act might also contribute to establishing a more consistent national standard for the availability of mediation and other services across the country.
Summary and Assessment: Divorce-Related Services
The Divorce Act could be amended to include a reference to parenting education, mediation or both within the existing regime of custody and access. Both of these services could be included in a new section dealing with divorce-related services. The section could set out the court’s discretionary authority to require parents to attend a parenting education program and be informed about mediation services. It could also include a reference to the court’s authority to appoint a mediator at the request of the parties. The section could further deal with the jurisdictional and cost implications by providing that the court should only exercise its discretion and order services when they are feasible and appropriate in light of the local availability, quality or cost of the services. The text could also specifically deal with the cost implications of the services, by providing that the services should only be ordered if they are available at a cost that is reasonable in light of the financial circumstances of each parent, and allow the court to order that one parent pay some or all of the costs of the other.
These changes to the Divorce Act are not likely to significantly change existing practice, with parenting education programs increasingly becoming mandatory, and parents being strongly encouraged to consider mediating their parenting disputes. In this respect, these reforms are not, strictly speaking, necessary. However, there are some advantages to making these changes. Including specific references to parenting education and mediation in the Act could assist in the general educational and exhortative objectives of legislative reform. Although these changes would do no more than bring the Divorce Act in line with existing practice, this may be helpful in educating separating and divorcing parents about the merits of parenting education and mediation. Moreover, there may be symbolic value in reform that allows the Divorce Act to better reflect existing practice.
The general objectives of legislative reform to custody and access are, as outlined above, to encourage parental cooperation, promote meaningful relationships between children and their parents following separation and divorce, and reduce parental conflict and litigation. The objectives are partially educational and exhortative—that is, the law of custody and access should establish general standards that guide and encourage separating and divorcing parents to restructure their relationships in a way that best promotes the best interests of children. At the same time, the reform must ensure that children are protected from violence, conflict, abuse and other harmful behaviour. The reform should encourage parents to reach their own agreements, but must also provide the courts with clear principles for resolving ongoing disputes when parents are unable to cooperate and agree.
This option for reform can advance at least some of these objectives. It would be possible to provide some encouragement for parental cooperation in the resolution of parenting disputes. Including an elaboration of the best interests of the child test, a list of parental responsibilities, a description of parenting plans, as well as a reference to divorce-related services, may help parents better focus their attention on the needs of their children. These reforms within the existing regime of custody and access could help advance the educational and exhortative objectives of reform by setting out some general standards to guide separating and divorcing parents in restructuring their parenting relations. Further, the reforms could certainly advance the general objective of protecting children from harm by including specific references to the unique needs of children who have experienced family violence, high conflict families or inadequate parenting.
The more challenging question is whether this reform can advance these objectives enough—that is, whether the reform goes far enough in addressing the concerns within the existing law, or whether more substantial reform, as contemplated by Options Two or Three is required. This question can only be answered by balancing the advantages and disadvantages of this option for reform, with the advantages and disadvantages of each of the other options for reform.
This option for reform retains the language of custody and access. Somewhat paradoxically, this is both its greatest strength and most serious weakness.
Fraught and Conflictual Language?
As discussed above, the language of custody and access has come under increasing criticism. The language is said to promote a win-loss mentality about parenting disputes and to be a source of parental conflict. The problem is said to be one of status—that the parent who gets custody is the
"real" parent of the child, while the parent with access is relegated to the status of second-class parent, with few rights, entitlements or responsibilities. Parents fight over the children precisely because, within the existing language of custody and access, the stakes are so high.
Over the past decade, the courts have been extending the rights of non-custodial parents, and promoting the continuous involvement of both parents in the lives of their children. Non-custodial parents are no longer completely excluded from participation in their children’s lives. However, notwithstanding this change, there is a social perception, however mistaken, that non-custodial parents are relegated to second-class status. The perception of the stakes may, therefore, be a more important determinant than a realistic assessment of the stakes themselves.
The language of custody and access has become emotionally loaded. Disputing parents may sometimes find themselves fighting about language, rather than focussing on the interests of and arrangements for their children. There is, then, much to be said for any reforms that might be able to help parents focus their attention on the interests of the children. At the same time, it is important to be realistic about what might be accomplished in and through a change in language. At least part of what has made the terms custody and access so loaded is that it has been the language in which parental disputes have been cast and fought for many, many years. If parents continue to fight over their children, new terminology could become as emotionally fraught as the old. And language is not the only source of conflict. Parents fight over their children for many reasons—fear, anger, revenge, anxiety, insecurity and guilt, as well as love and attachment. It is not at all a foregone conclusion that changing the language will be able to address these underlying sources of conflict.
Some of the problems of language and second-class parental status could be addressed by a regime that encouraged parents to enter into parenting plans, in which they allocated parental responsibility according to their own assessment of the best interests of the child. These parenting plans would not have to use the language of custody and access. And the use of parenting plans could, in turn, be promoted by encouraging parents to resolve their own disputes, through parenting education and primary dispute resolution.
However, the language of custody and access would be retained for those separating and divorcing parents who could not agree on their parenting arrangements. Custody and access would remain the language of contested disputes and the language of court orders. As a result, the court-ordered access parent may continue to feel like a second-class parent. Incorporating a list of parental responsibilities, then, does little to address the problem of language for contested custody and access cases. While adding a list of parental responsibilities, incorporating a reference to parenting plans and encouraging parenting education and primary dispute resolution might help more parents resolve their disputes themselves, the language of custody and access could continue to fan the flames in contested cases.
Avoiding Uncertainty and Litigation
The disadvantages of retaining the language of custody and access must be balanced against the disadvantages of changing the language. Abandoning the language of custody and access will create a range of unanticipated uncertainties and ambiguities in the legislative regime, which will, in turn, give rise to an increase in litigation. Admittedly, any reform creates uncertainty, and even the reforms directed at the best interests of the child—parental responsibilities, parenting plans and protecting children from harm—can be expected to create such uncertainty. However, the problems associated with reform within the existing regime of custody and access are nothing like the degree of uncertainty that will in all likelihood be produced by abandoning the language of custody and access altogether.235
Avoiding Broad Implications for Other Legislation
Working within the existing regime of custody and access avoids the need for the major legislative reforms that would otherwise be required in a broad range of federal and provincial legislation that relies on the language of custody and access. If this language was abandoned, it would be necessary to review these laws, and consider whether all of them would need to be reformed. In many instances, the reform would simply be terminological.236 However, there are a number of laws that would require more substantial reform in order to be made consistent with a new parenting regime. For example, and of particular importance in the area of family law, the Federal Child Support Guidelines, have been structured around the existing regime of custody and access. International and interprovincial child abduction laws have similarly been structured around the existing regime. While this will be discussed in further detail in Options Two and Three as well as in Part V below, abandoning the language of custody and access might require a broad ranging reform to a substantial number of laws.
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