Putting Children's Interest First - Federal-Provincial-Territorial Consultations on Custody and Access and Child Support

PART 1: PARENTING AFTER SEPARATION OR DIVORCE

Separating and divorcing parents have to deal with many important and difficult issues, including where their children will live and how they will make future decisions about their children. Each family situation is different and there are many competing interests involved.

This part of the consultation paper looks at six issues related to parenting after separation or divorce:

  • Roles and responsibilities of parents
  • Best interests of children
  • Family violence
  • High-conflict relationships
  • Children’s perspective
  • Meeting access responsibilities

Each of the sections that follow looks at the laws related to the issue and asks questions about how governments might improve them. There are also questions about family law services to provide governments with a better understanding of the kinds of services that would best respond to the needs of people dealing with parenting after separation or divorce.

ROLES AND RESPONSIBILITIES OF PARENTS

Further Reading

  • Custody and Access Terminology: Options for Legislative Change in B.C., prepared for the British Columbia Ministry of the Attorney General
  • Focus Groups on Family Law Issues Related to Custody and Access, S.A.G.E. Research Group
  • Divorce Reform and the Joint Exercise of Parental Authority: The Quebec Civil Law Perspective, Dominique Goubau, Professor, Faculty of Law, Laval University
  • An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access, Brenda Cossman, Professor, Faculty of Law, University of Toronto
  • Forthcoming

Current Situation

When parents separate or divorce, they must work out how they will continue to carry out their parenting roles and responsibilities. Most separating and divorcing couples are able to agree and work out their own parenting arrangements. Others find it difficult to agree on issues such as where the children will live and who will be responsible for the children’s day-today needs, schooling, religious education, and sports activities. It is even harder for parents to make decisions about their children when there is mental illness, substance-abuse, or violence between the parents or directed at the children.

Parents turn to the law for guidance when developing agreements on parenting arrangements and, when they cannot agree, to understand their options for resolving their disputes. The most common terms used in the law to describe parenting responsibilities are custody and access. However, the meaning, definitions and understanding of these terms vary across Canada and between the federal Divorce Act and provincial and territorial laws. Some provinces and territories also use other terms to describe the concept of parental responsibilities, such as guardianship and parental authority.

Currently the Divorce Act and provincial and territorial laws all require that decisions about custody and access be made based on the best interests of the children.

This allows for a wide range of parenting arrangements. Some children live all or most of the time with one parent. Others spend equal amounts of time with each of their parents. One parent may have responsibility for making decisions about the children, or the parents may share it.

With one exeption, the Quebec Civil Code, these laws do not assume that one parenting arrangement is better for children than another. Under Quebec law, whether custody is entrusted to one of the parents or to a third person, both parents are expected to continue to jointly exercise their parental responsibilities, unless the judge orders another parenting arrangement to meet the best interests of the children.

Is There a Need for a New Legal Approach?

The stress associated with separation and divorce can have a big impact on the health and well-being of children. Children have a harder time adjusting to new family situations when their parents cannot agree on parenting arrangements. Even though current laws promote the best interests of children and require that decisions that affect children put the children’s needs and well-being first, some Canadians have criticized existing custody and access laws. Here are some examples of their concerns:

  • The laws encourage too many parents to focus on their rights rather than on their responsibilities and, as a result, do not promote co-operative, child-focused parenting arrangements based on what is best for children.
  • The terms custody and access promote the idea of a "winner" and a "loser." Some parents tend to think only about how they can get custody of the children instead of thinking about the specific parenting arrangements that need to be worked out.
  • The varied meanings, definitions and understandings of the terminology contained in Canadian laws create confusion and uncertainty. Many people seem to think that the laws limit the types of arrangements that judges may order or parents may agree to.

These criticisms must be put into context. Legal responsibility for children rests with parents, and that responsibility is broad and near absolute. Current custody and access laws authorize judges to make custody orders based on the best interests of the children. These laws allow separating and divorcing parents to work out their own parenting arrangements, which can be incorporated into court orders. It is only necessary for parents to go to court when there are legal disputes they cannot resolve. In reality, most parents ultimately come to an agreement about parenting arrangements for their children, and only a very small number of cases end up with court-imposed custody orders.

In addition, it is important to be realistic about how much changing legislation can accomplish. Practically, the law is limited in its ability to change people’s views or to resolve parental disputes, which are often only partly legal in nature. Several countries and U.S. states have made major changes to their custody and access laws in the past decade. Evaluation studies suggest that changing the law has not dramatically changed the way parents divide up their parenting responsibilities, nor has it resulted in fewer parenting disputes. It seems that legislative amendments can attempt to promote the idea of co-operative parenting, but cannot successfully force unwilling parents to co-operate.

Another challenge for governments developing legislative reforms relates to balancing the benefits of predictability and certainty with those of flexibility.While clear and consistent legal rules and predictable outcomes are important to promote agreements, encourage settlements and discourage parents’ use of strategic or manipulative behaviour, these benefits must be balanced with the need for legislative flexibility. The unique characteristics of families and family members mean that each separation and divorce experience is different. No one model of parenting has proven to be better than another for all children, and legislative flexibility is required to allow parents, professionals and judges to fully consider and respond properly to the concrete, individual interests of children in each case.

Please note that other sections of this document discuss related issues.You may find it useful to read the whole paper before answering any questions.

Looking at the Law

Laws such as the current Divorce Act are the primary source of authority for judges resolving disputes when parents cannot agree. However, many parents look to the law for guidance about how to work out arrangements for themselves. This section asks questions about what kind of legal provisions you think are needed to emphasize parental responsibilities rather than rights, and to help parents, judges, lawyers and other professionals make better decisions about children.

Before you begin, here are some key points to consider:

  • The current law in most provinces and territories allows parents to agree to any kind of parenting arrangement that is in the best interests of their children.
  • The approaches described below are not the only ones possible.You are invited to suggest any others that you think would be effective. Governments may select approaches in addition to the ones set out here for later development.
  • It is important to consider the practical effects of any approach. For example, what other laws might be affected by a change in custody and access law? How will third parties who deal with children, such as teachers and doctors, interpret parenting arrangements?

There are five reform options we would like you to consider.

Questions

Which of the options described below do you think would best help parents and judges make better decisions about parenting after separation or divorce?

Option 1: Keep Current Legislative Terminology

Maintain the existing terms, custody and access. Focus on developing and providing additional, improved family law services, and education and training about the wide range of parenting arrangements that are presently available. While many agreements and orders use the term custody, or access, they do not have to, as long as each parent’s responsibilities are clearly described. The agreements and orders can refer to periods of access for the parent with whom the children do not usually live, or they may simply refer to dates and times when the children will be with that parent, without using the word access at all.

The objective of this option would be to improve, in a practical way, how parents, lawyers, judges and other professionals approach parenting roles and the resolution of family law disputes involving children. It would provide separating and divorcing families with the information and assistance they need, to understand the types of arrangements they can make for the care of their children, as well as education and training to help reduce parental conflict and to help protect children from some of the negative effects of their parents’ separation and divorce.

This option would keep the existing terms custody and access, so there would be no impact on other existing laws that use or incorporate these terms.

Option 2 Clarify the Current Legislative Terminology: Define Custody Broadly

Maintain the existing terms custody and access, but define them differently. An open-ended list would set out the areas that make up custody, including the following:

  • responsibility for meeting the children’s daily needs, which include housing, food, clothing, physical care and grooming, and supervision;
  • responsibility for making day-to-day decisions about the children; and
  • responsibility for making major decisions concerning the children’s well-being, decisions on matters such as residence, health care, education and religious upbringing.

The law would provide a framework for parents and judges to assign the aspects of custody to one parent alone or to both parents jointly, in a clear, understandable way. The parenting arrangement would not have to be described as sole or joint custody. Parenting agreements or court orders could use the word custody, but would not have to, as long as each parent’s responsibilities are clearly described. The agreements and orders could refer to periods of access for the parent with whom the children do not usually live, or they may simply refer to dates and times when the children will be with that parent, without using the word access at all.

Option 3 Clarify the Current Legislative Terminology: Define Custody Narrowly and Introduce the New Term and Concept of Parental Responsibility

Maintain the term custody, but restrict its meaning. Introduce the term parental responsibility, which would refer to the rights and responsibilities of parents for their children, including but not limited to the following:

  • responsibility for meeting the children’s daily needs, which include housing, food, clothing, physical care and grooming, and supervision;
  • responsibility for making day-to-day decisions about the children; and
  • responsibility for making major decisions concerning the children’s well-being, decisions on matters such as residence, health care, education and religious upbringing.

Custody would be one narrow component of parental responsibility — the responsibility for maintaining a residence for the children.

Custody would determine the children’s residence, but not how responsibility for making major decisions concerning the children would be exercised. Each parent would be responsible for the day-to-day care of the children and for making day-to-day decisions about the children when they are with that parent. Agreements or orders could assign some or all components of parental responsibility. These responsibilities could be assigned to one parent only or to both parents jointly, depending on what is best for the children, taking into account their particular circumstances.

Option 4 Replace the Current Legislative Terminology: Introduce the New Term and Concept of Parental Responsibility

Replace the terms custody and access in family laws with the new term and concept of parental responsibility. Judges would be authorized to issue a parental responsibility order, instead of a custody order, that would describe and allocate the exercising of specific aspects of parental responsibilities between parents. The legislation would not require that parenting responsibilities be divided equally or exercised co-operatively. The exercise of the various responsibilities could be allocated exclusively or proportionately, based on the best interests of the children. Some aspects could be exercised jointly by both parents, while either parent could exercise some aspects alone. When necessary to ensure the best interests of the children, one parent could be given the authority to exercise exclusive parental responsibility.

Option 5 Replace the Current Legislative Terminology: Introduce the New Term and Concept of Shared Parenting

Introduce the term and concept of shared parenting into family laws. For example, the recommendation in the Special Joint Committee on Child Custody and Access report, For the Sake of the Children, defined shared parenting as including all the meanings, rights, obligations, and common-law and statutory interpretations embodied previously in the terms custody and access. This shared parenting approach would not mean that children must live an equal amount of time with each parent. The starting point for any parenting arrangement, however, would be that children would have extensive and regular interaction with both parents, and that parental rights and responsibilities, including all aspects of decision-making, would be shared equally or nearly equally between the parents. Parents wishing to begin from another starting point would have to show that shared parenting would not be in the children's best interests.

There are other possible ways the law might guide parenting after separation or divorce. Please describe in your feedback booklet any other options that you think would be effective.

LOOKING AT SERVICES

Separating and divorcing parents may need information and assistance to understand the types of arrangements they can make for the care of their children. Many people and organizations, such as lawyers, mediators, counsellors, public information programs, friends and family, can help parents deal with the complex financial, emotional and legal issues associated with separation and divorce.

Parent-education programs, mediation and counselling can help at the start of the process when parents are trying to agree on parenting arrangements that would be in the best interests of their children. The effective use of services can reduce parental conflict and protect children from some of the negative effects of their parents’ separation and divorce. Research has shown that parental co-operation and low levels of conflict are in the best interests of children.

Once parents have an agreement or court order setting out their parenting arrangement, they may still require support, education, and counselling to work through the difficulties of their new situation. Even after the initial conflict is resolved, many parents may find it difficult to co-operate and abide by their parenting agreement.

Please check the six services from the list below that you think are most important for helping families involved in separation and divorce.

Information Services

Parent education:
these programs help separating and divorcing parents understand the legal, personal, and parenting issues that arise during separation and divorce. They also provide information on the ways separating and divorcing parents may care for their children.
Public and family law information centres:
these centres offer a range of written materials and videos on separation and divorce. They may also provide services for parents and children.
Self-help materials, kits or public information documents on parenting roles:
these are available in a number of public places, including courthouses, depending on the province or territory. A parenting-skills workbook on separation and divorce issues for families, for example, might help parents develop positive parenting, communication and conflict-resolution skills, and assist parents in resolving disputes and developing a parenting plan.
Information programs for children:
these programs help children understand and respond to issues that affect their care and their relationships with parents and others.

Support Services or Approaches

Counselling for parents:
this covers anger management, conflict resolution, debt reduction, substance abuse, and employment.
Legal aid:
this service provides legal advice or representation to financially eligible parents.
Child advocates or child legal representatives:
child advocates may intervene in a broad range of family matters, including custody and access proceedings to promote the interests and well-being of children. Children’s representatives present the children’s views and preferences on parenting arrangements.
Special courts:
these deal only with family and children’s matters. Supervised access and exchange centres: these centres offer a safe, supervised environment for children’s access and for parents to drop off and pick up their children.

Dispute Resolution Services

Mediation:
parents who have relatively equal bargaining power work with a neutral person to reach an agreement on parenting arrangements.
Assessments:
when parents cannot agree on custody and access arrangements, a judge may order or the parents may accept an independent expert, such as a psychologist or social worker, to assess the parents’ and children’s situation.
Case managers and workers:
these people help parents review their written agreement or court order regularly, to see if there are problems or changes in circumstances that need to be addressed.

If you have had any personal experience with any of these services, please comment in your feedback booklet on how useful the services were in encouraging parents to make their own parenting arrangement, and to focus on the needs and best interests of their children.

Please also describe in your feedback booklet any other family law services that you think would be useful to help clarify parental roles and responsibilities, and to encourage parents’ positive involvement and co-operation.

Date modified: