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

2001-FCY-2E

OPTION TWO: PARENTING RESPONSIBILITYAND PARENTING ORDERS (continued)

PRIMARY DISPUTE RESOLUTION AND OTHER SERVICES

A statutory regime designed on the basis of this parenting responsibility and parenting order model could also include a range of references to dispute resolution and other services. The policy choices for doing so are very similar to those reviewed in Option One. A shift towards a parenting responsibility model does not appear to raise any unique challenges for incorporating a reference to these services.

Parenting Education

The Divorce Act could be amended to require all parents seeking a parenting order to participate in a parenting education program, or to allow the courts to require parents to attend a parenting education program. As discussed above, in light of the serious jurisdictional and resource implications of establishing mandatory programs, the most realistic approach for the legislative framework is to give the courts the discretionary authority and specify that they exercise their discretion and order services only when they are feasible and appropriate in light of the local availability, quality or cost of those services.

Mediation and Other Primary Dispute-Resolution Services

The Divorce Act could be amended to place greater emphasis on mediation and other primary dispute-resolution mechanisms. As discussed in Option One, it may be that any reform that encourages or requires separating and divorcing parents to attend a parenting education program that includes a discussion of the advantages of these primary dispute-resolution procedures would suffice.

The Act could be amended to include a general statement of objective, that parents should be encouraged to reach their own agreements, and that they should consider the use of primary dispute resolution before seeking parenting orders from the court. This general objective may fit well within a parenting responsibility regime that places considerable emphasis on parenting plans—either optional or mandatory—in which parents would be encouraged to consider using primary dispute resolution to negotiate parenting plans before seeking parenting orders from the court. The general encouragement of the use of primary dispute resolution would, thus, be connected with the use of parenting plans.

As discussed in Option One, it is not clear that any of these reforms would actually result in a significant change in current practice in contested custody and access cases, in which the parties are already given ample encouragement and opportunity to resolve their disputes through mediation. There may, nevertheless, be some advantages to including a reference to mediation and other services within the Divorce Act. It might promote the educational objective of legislative reform in this area by encouraging separating and divorcing parents to consider the possibility of mediating their parenting disputes. And there may be symbolic value in reforming the Divorce Act to reflect existing practice.

ADVANTAGES AND DISADVANTAGES OF THIS OPTION FOR REFORM

The objectives of legislative reform include reducing parental conflict and litigation, encouraging parental cooperation and promoting meaningful relationships between children and their parents following separation and divorce. Legislative reform is also intended to protect children from the harm associated with violence, high conflict and inadequate parenting. The objectives of the reform are educational and standard-setting: the law should establish principles that help separating and divorcing parents restructure their parenting relationships in a way that most effectively promotes the best interests of their children. The reform should encourage parents to resolve their parenting disputes through their own cooperative parental agreements, and should encourage parents to continue to be involved in a meaningful way in their children’s lives. At the same time, the reform must also be able to provide for the needs of those children whose separating and divorcing parents are unable to agree or cooperate, and provide the courts with clear principles for resolving ongoing disputes. Finally, the reform must be guided by a recognition that no one model of post-separation parenting will meet the needs of all children, and that the law must allow for flexibility to address the diversity of families.

As discussed above, there are questions about the extent to which any legislative reform will be able to bring about the desired result, as there are limits to what legislative reform can accomplish. Terminological and legislative change is unlikely to be able to eliminate the conflict that underlies parenting disputes. And virtually any legislative reform is likely to, at least initially, increase rather than decrease litigation. Changing the law invariably creates uncertainty and a new set of expectations (realistic or not) that lead to more litigation. There are also tensions within and between many of the principles for reform. A regime that emphasizes flexibility may fail to promote clarity and predictability. A regime that attempts to set cooperative standards for post divorce parenting may have difficulty responding to high conflict parents who are unable to cooperate.

With these limitations in mind, the issue that must be addressed is the extent to which a regime based on parental responsibility might be able to promote the general objectives of reform.

Two very different models for a parental responsibility model emerge from the discussion. One model is based on parenting orders, with the possibility of optional parenting plans. The second model is based on mandatory parenting plans, in which all parents would be required to file a plan, and all parenting orders would be issued in the form of parenting plans. Both of these models can be designed to be consistent with the spirit of parenting responsibility, and both models could substantially promote the objectives of reform. But, the models diverge in the prominence of the role given to the parenting plan when resolving parenting disputes. The following discussion of the advantages and disadvantages of this option for reform attempts to highlight the relative merits of each of these models.

Terminology

Many of the advantages and disadvantages of abandoning the language of custody and access, and adopting the language of parenting responsibility have, in many respects, been reviewed in the general discussion of the advantages and disadvantages of terminological change above.

The advantages of the language of parenting responsibility can be seen against the backdrop of the main disadvantages of the other options for reform: parenting responsibility may provide less conflictual language than does custody and access, and more flexibility than does shared parenting.

The main disadvantages of this option for reform are the degree of uncertainty this change would introduce, and the potential implications for a broad range of other federal and provincial legislation.

Less Fraught and Conflictual?

The advantages associated with a model based on parental responsibility must be seen against the backdrop of the disadvantages of the existing custody and access regime. As discussed above, the language of custody and access has come to be seen as emotionally and legally fraught, producing parental conflict and alienation because of its winner-takes-all structure. Accordingly, a main advantage of a shift to a model based on the language of parenting responsibility is the move away from this contested language.

The question, then, is whether the language of parenting responsibility is likely to be less fraught and conflictual than the language of custody and access. To the extent that parental conflict is actually produced by the fight over which parent gets to be the custodial parent, and which parent must settle for the second-class status of access parent, the language of parenting responsibility may be a marked improvement. By simply allocating this responsibility between parents, this model may be able to avoid the highly contentious labels. Both parents remain parents, although they may be allocated differing aspects and degrees of parenting responsibility.

However, the extent to which a parenting responsibility model will be able to reduce this conflict will depend on the particular type of parenting orders adopted. For example, the language of residence, contact and specific-issues orders may quickly become as emotionally and politically loaded as the language of custody and access. Residence and contact orders, in many respects, sound a lot like custody and access orders. To the extent that the conflict is about labels that confer primary and secondary status, residence and contact orders are not likely to represent a significant improvement. The question then is whether these residence and contact orders will actually produce different results. Would the new regime result in more contact for non-residential parents? Would the new regime result in a different allocation of parental responsibility? If, in fact, the new regime did not result in any significant change, then the process of reform may do no more than unrealistically raise expectations and create more frustration.

A regime based on allocated parental rights and responsibility might be able to avoid replicating the labelling problem of the custody and access regime. Within this regime, a parenting order would simply allocate the various dimensions of parental rights and responsibilities. Similarly, a regime based on residential-schedule and decision-making authority orders requires that these dimensions of parenting responsibility are allocated between parents. Both sets of parenting orders avoid imbuing the orders themselves with the connotations of first and second class parental status.

A regime based on mandatory parenting plans is also able to avoid contentious labels. Parenting responsibility is allocated within a parenting plan, without the language of residence and contact. In a contested dispute, a court must allocate the child’s residential schedule and the decision-making authority in a parenting plan.

At the same time, however, any parenting order (including a parenting order issued as a parenting plan) must ultimately include where a child is to live. While the order can try to avoid contentious labels, there is no getting around the fact that a child is likely to reside with one parent and have contact with the other. The effect is that there will be a residential parent and a contact parent. A regime based on parenting responsibility cannot avoid making this difficult, and often, contentious decision.

Similarly, a regime based on allocated parental responsibility orders, residential schedule and decision-making authority orders, or court ordered parenting plans must also allocate decision-making authority. While it can allow for a sharing of major decisions, day-to-day decision-making authority invariably must be vested in the parent with whom the child is residing. Further, neither of these types of parenting orders presuppose that decision-making will be shared but, rather, specifically contemplate a range of circumstances in which shared decision-making would be inappropriate. As a result, neither set of parenting orders avoids the difficult and contentious issue of deciding which parent has decision-making authority over the child.

A parenting responsibility model cannot, ultimately, help parents avoid the contested issues when resolving parenting disputes. As a result, the new language could become as emotionally and legally fraught as the language of custody and access that it is replacing. But, the advantage of a parenting responsibility model, particularly one that is not based on residence and contact orders, is that it tries to avoid the use of labels in the order itself. Further, by not articulating the various components of parenting responsibility, this model at least begins to get away from the winner-takes-all structure of custody and access. Although day-to-day decision-making authority necessarily follows a child’s residence, major decision-making authority need not. Rather, decision-making authority can be determined separately and according to a different set of criteria.

More Flexible and Accommodating?

Another advantage of the language of parental responsibility is that it avoids many of the limitations of the language of shared parenting (discussed in greater detail below). The language of parental responsibility does not presuppose how that responsibility ought to be allocated between parents. It does not presuppose that the responsibility should be shared. Nor does it presuppose that the responsibility should never be shared. Rather, it simply directs parties and courts to allocate these responsibilities, according to the best interests of the child. It is an approach that accommodates family differences by allowing parents considerable latitude when tailoring their parenting arrangements. It is an approach that can accommodate diversity, including cultural, religious and ethnic differences in understandings of appropriate parenting.

Insofar as this parenting responsibility model does not promote any particular parenting arrangement but, rather, allows parents and courts to determine the particular arrangement that is in the best interests of the children, it can be said to generally promote the idea that "no one size fits all." Both the parenting-order and mandatory parenting-plan models embrace diversity and flexibility in parenting arrangements.

However, what parenting responsibility gains in flexibility, it risks losing in predictability and certainty. An approach to parenting disputes that allows a wide range of possible parenting arrangements may do little to increase the predictability of the outcomes of parenting disputes and, thereby, do little to reduce parental conflict and litigation. This lack of predictability would only be heightened if the criteria for allocating parenting responsibility were included as a statutory list of factors in the best interest of the child test. As discussed in Option One, a list of equally weighted factors does little to increase predictability of outcome.

A model of parenting responsibility could attempt to minimize this uncertainty by setting out the specific factors that need to be taken into account in allocating the different aspects of parental responsibility. In this way, the particular criteria could be more closely tailored to the particular order (including orders issued in the form of parenting plans). For example, when allocating a child’s residential schedule, factors such as past and future performance of parenting functions, stability and continuity of care should be given considerable weight. But, in allocating decision-making authority, factors such as the history of participation of each parent in decision-making and the demonstrated ability of parents to cooperate with each other in decision-making should be given more weight. By carefully identifying the specific factors that need to be taken into account in the allocation of particular dimensions of parenting responsibility, a model of parenting responsibility could thus maintain its flexibility for parenting arrangements without sacrificing the reform objective of clarity and predictability.

Not Entirely Neutral

While the language of parental responsibility may be preferable to that of custody and access, and more neutral than shared parenting, it should be noted that there is at least one unfortunate connotation of the term. The language of parental responsibility is increasingly being used in the context of parental liability for their children’s criminal acts. Parental responsibility statutes, also known as parental liability statutes, typically hold parents liable in some way for their children’s actions. For example, the Manitoba Parental Responsibility Act holds parents liable for the activities of their children in relation to other people’s property.297 In the U.S., the statutes typically hold parents liable for negligence for failing to control and supervise their children.298 Parental responsibility in this context has a rather more sinister connotation, referring not to parents’ general duties, obligations and authority in relation to their children but, rather, to their failure to exercise sufficient control over their delinquent children.

Uncertainty, Conflict and Litigation

Two major objectives of the reform of child custody and access is to reduce the conflict between separating and divorcing parents, and to establish a legal regime that better allows parents to focus on, and cooperate in relation to, the interests of their children. A major disadvantage of this option for reform is that it will invariably introduce a range of uncertainties and ambiguities into the law that will, in turn, result in increased litigation. There are a number of steps that could be taken to try to minimize the ambiguity, confusion and uncertainty that may arise with this reform. For example, the regime could attempt to define parental responsibility with some degree of precision, as well as set out the specific criteria to be taken into account in allocating particular aspects of parenting responsibility. However, no amount of attention to detail can prevent the uncertainty that accompanies major reform.

There is considerable evidence of this impact in other jurisdictions that have undertaken similar reforms to the law of custody and access. As discussed above, research in both the U.K. and Australia has shown that the reforms do not appear to have significantly reduced conflict between divorcing parents. Disputes over residence and contact orders have intensified.299 As Jeremy Roche has observed, the reforms have "not succeeded in taking the heat of disputes around children on divorce."300 Applications for contact orders have increased dramatically, as have applications regarding violations of parenting orders.301 Some of the increase is believed to be related to the unrealistic expectations produced by the reforms, particularly on the part of contact parents. Some of the continued conflict and litigation is also no doubt due to the confusion and ambiguity created by the change in the law, and the failure of the law to address a range of difficult questions, from the meaning of parental responsibility to the allocation of day-to-day decision-making to relocation.

Broad Implications of Reform for Other Legislation

Finally, any change in the language of custody and access has serious implications for a broad range of federal and provincial legislation. This is among the most serious disadvantage of any reform that moves away from the language of custody and access, as much federal and provincial legislation relies on the language of custody and access. If the Divorce Act abandoned this language in favour of that of parenting responsibility and parenting orders, it might be necessary to reform all legislation that included references to custody and access.302 While some of these laws would require only a minor change in language, there are some implications of a much more serious nature.

The Federal Child Support Guidelines, for example, presuppose a regime of custody and access, in which the calculation of child support obligations are based on the income of the non-custodial parent. The Guidelines allow for a deviation from the specified amounts in the event of shared custody—that is, when a child lives with the other parent for not less than 40 percent of the time. A regime based on the allocation of parental responsibility would need to consider the implications of the allocation of the child’s residential time on the Guidelines. If a child continued to live with a residential parent for more than 60 percent of the time, then the Guidelines could continue to apply. If, however, in allocating the child’s residential time, one parent is not the residential parent for more than 60 percent of the time, there would be a variation in the Guideline amounts.

Other laws are similarly based on the language of custody and access, distributing rights or responsibilities to "custodial parents" and "access parents." For example, current laws on international and interprovincial child abduction are based on the concepts of custody and access. Both the Hague Convention on the Civil Aspects of International Child Abduction, and sections 282 and 283 of the Criminal Code on interprovincial abductions are designed to protect against the wrongful removal of a child in contravention of custody or access orders. Any move to abandon the language of custody and access and move towards a regime of parental responsibility would need to carefully consider the implications for these child-abduction laws. This is discussed in greater detail in Part V below.

Other laws effectively require the designation of a custodial parent or primary caregiver. For example, benefits under the Ontario Works Act depend on the identification of a custodial or primary caregiver parent. 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. An allocated-parental-responsibility scheme could make it more difficult to identify a custodial or primary caregiver parent and, thereby, present further obstacles for parents seeking social assistance benefits.

However, a parenting-responsibility model does not preclude one parent being identified as a custodial-like parent. For example, if the language of residential-parent and residence orders was adopted, much of the legislation could be reformed to reflect this language. The term residential parent could replace custodial parent, without seriously compromising the integrity of the schemes. In this respect, the language of parenting responsibility may be more easily adaptable than the language of shared parenting, as will be discussed in Option Three below.

One option would be to include a provision that allows parents to identify a custodial parent for the purposes of those provincial and federal laws that require a determination of custody. The Washington Parenting Act includes a provision that allows a designation of custody for the purposes of other state laws. The provision states that "solely for the purpose of all other state and federal statutes which require a designation or determination of custody, a parenting plan shall designate the parent with whom the child is to reside the majority of the time as the custodian of the child."303 The provision specifically states that "the designation shall not affect either parents’ rights and responsibilities under the parenting plan."304

Such a designation provision would be helpful for separating and divorcing parents who were able to agree, and as such, it could be useful as part of a list of provisions that may be included in a parenting plan. However, it might prove to be highly contentious for those parents who are unable to agree on their parenting arrangements. By effectively returning to the language of "custodial parent," such a provision would reintroduce the very language that is said to produce parental conflict. This deeming provision is discussed in greater detail in Part V below.


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