GOVERNMENT OF CANADA STRATEGY FOR REFORM

Implementing the Strategy for Reform

The process to implement this Strategy for Reform will involve working closely with the provinces and territories to integrate the review and consultation process with the Government of Canada's review of the Federal Child Support Guidelines. The Department of Justice is required to provide Parliament with the results of a comprehensive review of the provisions and operations of the Guidelines and the determination of child support by May 1, 2002. This Strategy for Reform will integrate the development of reforms to custody and access issues into that process. Further study and research will be carried out jointly with the provinces leading to public consultations on specific reform proposals in 2001. In this way, the report to Parliament on the Guidelines can include the necessary reforms regarding both custody and access and child support.

Element 1: Focussing on the Child

This element responds to the major concern identified by the Committee that the current family law system creates an environment that leaves children vulnerable to being pawns in their parents' power struggles.

There is a need to explore changes that can be made to the legal rules, principles and processes to better structure the decision-making process in a child-focused way and shift the current focus of the family law system from parental rights to parental responsibility.

The Government of Canada's focus, as a primary principle, will be that the individual needs, best interests and well-being of children and youths are paramount. This will involve:

  • insisting that when there is potential conflict, the interests of the parents should be secondary to those of their children;
  • acknowledging that parental arrangements should be organized to meet the needs of children; and
  • retaining the best interest of the child principle as the basis for the Government's child-centred strategy.

Recommendation 15

This Committee recommends that the Divorce Act be amended to provide that shared parenting determinations under sections 16 and 17 be made on the basis of the "best interests of the child".

Best Interests of the Child

The "best interests of the child" principle is already the cornerstone of the current Divorce Act, which provides in subsections 16(8) and 17(5) that in making or varying a custody order, a court shall take into consideration only the best interests of the child as determined by reference to the conditions, means, needs and other circumstances of the child.

In retaining this principle as the basis for a child-centred strategy, the Government of Canada recognizes that clear and accepted principles can help guide both parents and judges to determine best interests and also provide a general framework within which parenting arrangements can be developed. The Government of Canada therefore agrees with the Committee's recommendation that the Divorce Act should include a list of criteria to assist in determining the best interests of the child. It will be equally important to ensure that decision making remains tailored to each particular child and situation. Both parents and judges should be directed to assess the general principles contained in the identified legislative criteria on the basis of their relevance to the circumstances of the individual case and the particular child.

The Government of Canada proposes to consult with experts and study further the Committee's recommended list of 14 criteria. We also intend to look at other possible criteria to include in the list and examine whether some specific legislative guiding principles would also be useful to clarify the best interests of the child, such as the following:

  • 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.
  • Children and youths must be protected from violence, threats of violence and continued exposure to conflict.
  • Children and youths benefit from the opportunity to develop and maintain meaningful relationships with both mothers and fathers.
  • Children and youths benefit from the opportunity to develop and maintain meaningful relationships with extended family members and others.
  • Children and youths benefit from consistency and continuity of caregiving.
  • Cooperative parenting can promote healthy child adjustment, but is not practical or appropriate in some cases.

Parental Responsibilities

As noted in For the Sake of the Children, one of the key problems associated with the current legislative framework is its focus on custody orders. This has been criticized for emphasizing parental rights and promoting court deliberation as to who is the "better" parent. To respond to this problem, an important aspect of the federal Strategy will be to explore means to shift the current focus of the family law system from parental rights to parental responsibilities.

The Government of Canada will explore legislative reform options that will reinforce the fundamental importance of the parent-child relationship and emphasize the fact that both parents maintain their parental status and continue to have duties and responsibilities for their children, post-divorce.

However, while both parents would have equal statutory responsibilities to continue to guide, nurture and financially support each of their children, in keeping with the child-focused approach, we do not propose that there be any built-in presumptions about how these responsibilities should be practically exercised in any given household. The specific parenting arrangements should ideally be developed by the parents, and these arrangements should include reviews and renegotiation provisions to account for the changing needs of the child over time.

Recommendation 11

This Committee recommends that divorcing parents be encouraged to develop, on their own or with the help of a trained mediator or through some form of alternative dispute resolution, a parenting plan setting out details about each parent's responsibilities for residence, care, decision making and financial security for the children, together with the dispute resolution process to be used by the parties. Parenting plans must also require the sharing between parents of health, educational and other information related to the child's development and social activities. All parenting orders should be in the form of parenting plans.

Recommendation 13

This Committee recommends that the Minister of Justice seek to amend the Divorce Act to require that parties applying to a court for a parenting order must file a proposed parenting plan with the court.

Parenting Plans

The Government of Canada supports the Committee's recommendation that divorcing parents be encouraged to develop a parenting plan that would set out details about each parent's responsibilities for residence, care, decision making and financial security for the children, together with a dispute-resolution process to be used by the parents.

Parenting plans fit in well with an emphasis on parental responsibilities. They provide a child-centred tool that moves the discussions away from the archaic concept of "ownership" of the child to the concrete task of working out the child's residential schedule and activities and the guidelines concerning decision making. Some proponents of a parenting plan approach support it on the assumption that parenting plans presuppose equal time-sharing and the maximum involvement of both parents. Our view is that a parenting plan must be flexible enough to provide for a wide variety of parenting arrangements. Parents can share responsibilities equally when it is workable and appropriate to do so. Parental responsibilities might also be divided in some other way between the parents or assigned exclusively to one parent if that best meets the needs of the particular child or particular family situation.

While the Government of Canada supports the idea of encouraging parents to develop a parenting plan, there are issues that need to be studied further to determine how best to incorporate parenting plans into the family law system. In particular, further study is needed on whether, as the Committee recommends, parties should be required to file a proposed parenting plan with the court and courts should be required to make all custody and access orders in the form of parenting plans.

Recommendation 3

This Committee recommends that it is in the best interests of children that

  • they have the opportunity to be heard when parenting decisions affecting them are being made;
  • those whose parents divorce have the opportunity to express their views to a skilled professional, whose duty it would be to make those views known to any judge, assessor or mediator making or facilitating a shared parenting determination;
  • a court have the authority to appoint an interested third party, such as a member of the child's extended family, to support and represent a child experiencing difficulties during parental separation or divorce;
  • the federal government work with the provinces and territories to ensure that the necessary structures, procedures and resources are in place to enable such consultation to take place, whether decisions are being made under the Divorce Act or provincial legislation; and
  • we recognize that children of divorce have a need and a right to the protection of the courts, arising from their inherent jurisdiction.

Voice of the Child

For the Sake of the Children emphasizes that the Committee felt strongly that children should have the opportunity to be heard when parenting decisions affecting them are being made. It specifically proposes giving children the opportunity to express their views to a skilled professional whose duty it would be to make those views known to the judge or mediator working out a shared-parenting determination. The Committee also recommends that, when necessary to protect a child's best interests, judges should have the power to appoint state-funded legal counsel for the child.

The Government of Canada agrees with the objective of these recommendations. Implementing these types of measures, though, will require close consultation with the provinces and territories and a significant allocation of resources.

We recognize the need to improve the treatment of children in the family law system, and are already working closely with the provinces and territories to determine how it can be done. This work includes the following:

  • considering how legislative provisions can improve family law proceedings to provide the appropriate involvement of children;
  • examining ways in which children of divorced and separated parents can be given the opportunity to be heard in relevant judicial and administrative proceedings, including ways in which children's views and interests can be presented to the court;
  • examining different models for separate legal representation for children in the legal system; and
  • considering the scope for the development of independent support and advocacy services for children and young people.

All work in this area is premised on the view that there is a critical distinction between hearing children's views and placing the onus of decision making upon them. Children must not be put in the position of having to choose between their parents.

Element 2: Maintaining Meaningful Relationships

The Government of Canada endorses the view of the Joint Committee that the family law system must discourage the estrangement of parents from their children. A great deal of the literature in this area concludes that children's well-being and development can be detrimentally affected by a long-term or permanent absence of a parent from their lives. Most children want and need contact with both their parents even after those parents divorce.

For this reason, the Government of Canada supports a child-centred policy that will encourage parents to share the responsibilities of child rearing in a way that will allow both parents to have the opportunity to guide and nurture their children.

Recommendation 2

This Committee recognizes that parents' relationships with their children do not end upon separation or divorce and therefore recommends that the Divorce Act be amended to add a Preamble containing the principle that divorced parents and their children are entitled to a close and continuous relationship with one another.

Continuous Involvement of Both Parents

To respond to the concerns raised in the Report, the Government of Canada will review the concepts, terminology and language used in family law with a view to identifying the most appropriate way to emphasize the continuing responsibilities of parents to their children and the ongoing parental status of both mothers and fathers post-divorce.

Some jurisdictions have used statutory provisions that refer to parental "authority" or "responsibility" to make it clear that both parents retain their parenting responsibilities after divorce as well as their fundamental parenting status as mother and father. These types of provisions will be examined further to see if and how they address the concerns that have been raised about the non-custodial parent being viewed only as a visitor. The objective would be to develop a Divorce Act provision that would reinforce parents' equal statutory responsibilities to continue to guide, nurture and financially support their children but would also ensure that this would not be seen as a presumption forcing parents to follow one specific type of parenting model.

No Presumptions

The Government of Canada endorses the approach of the Special Joint Committee which recognizes that no one model of post-separation parenting will be ideal for all children and rejects the use of legislative presumptions. For the Sake of the Children notes that the Committee did hear strong calls for legislative presumptions:

One of the most frequent recommendations was that the Divorce Act be amended to add a legal presumption.... Many women's groups and individual women advocated strongly that the Act should contain a presumption in favour of the primary caregiver of children, as this would best reflect the pattern whereby women perform most of the functions associated with caring for children in intact families.... On the other hand, many witnesses, including individual fathers, fathers' groups and shared parenting advocates, recommended strongly that the act be amended to include a presumption in favour of joint physical custody, meaning an arrangement in which children would spend roughly equal amounts of time with each parent and where decision making would also be shared. Its proponents argued that such a presumption would be the best means of levelling the playing field or overcoming any unfair advantage women might have in disputes about parenting arrangements because of gender bias (pp. 41-42).

However, the Committee did not recommend amending the Divorce Act to add legal presumptions that favour a particular type of parenting arrangement. Instead, the Report notes:

Presumptions in favour of joint custody or the primary caregiver have been adopted in a number of U.S. jurisdictions, but in some cases legislatures have subsequently withdrawn them after finding that they were not having the intended desirable effects. Presumptions that any one form of parenting arrangement is going to be in the best interests of all children could obscure the significant differences between families.... Presumptions can also have the negative effect of compelling families who might otherwise have been able to make constructive, amicable arrangements to apply to a court if they want to avoid the application of the presumptive form of parenting arrangements (pp. 42-43).

Recommendation 5

This Committee recommends that the terms "custody and access" no longer be used in the Divorce Act and instead that the meaning of both terms be incorporated and received in the new term "shared parenting", which shall be taken to include all the meanings, rights, obligations, and common-law and statutory interpretations embodied previously in the terms "custody and access".

Recommendation 6

This Committee recommends that the Divorce Act be amended to repeal the definition of "custody" and to add a definition of "shared parenting" that reflects the meaning ascribed to that term by this Committee.

New Terminology: Shared Parenting

One issue outlined in For the Sake of the Children concerns the language of divorce, notably the "corrosive impact" of the current terminology of custody and access. Committee members remarked that they found the testimony about the impact of these terms particularly compelling.

As a solution, the Committee proposes that the current Divorce Act terms "custody" and "access" should be replaced by the phrase - and the concept - "shared parenting." The Report makes it clear that in choosing this term, the Committee

is not recommending a presumption that equal time-sharing, or what is currently referred to as joint physical custody, is in the best interests of children. The Committee recognizes that the details of time and residence arrangements for children will vary with the family involved (p. 27).

This recommendation is important, and further consideration of this proposal will be a high priority for the Government. We share the Committee's concern that the current terms in the Divorce Act have the potential to escalate conflict between divorcing parents. In particular, we agree with the Committee's conclusion that there is a need to rectify the unfairness and inequality that has come to be associated with the term "sole custody." In some cases, this term is being interpreted as vesting the custodial parent with exclusive rights over the children and relegating the non-custodial parent to the status of "visitor." This situation needs to be changed.

The Government of Canada accepts the Committee's recommendation that the terms "custody" and "access" should be replaced in order to help all those involved to avoid the misleading and often provocative associations of the current terms. Moreover, the term "shared parenting" has the advantage of placing an emphasis on parental responsibilities rather than on various sets of "rights" that may conflict with one another. Obviously, the nature of these responsibilities would vary according to the situation; as the Committee points out:

in view of the diversity of families facing divorce in Canada today, it would be presumptuous and detrimental to many to establish a "one size fits all" formula for parenting arrangements after separation or divorce (p. 27).

"Shared parenting," according to the Committee, would "be taken to include all the meanings, rights, obligations, and common-law and statutory interpretations embodied previously in the terms custody and access." The challenge is to identify a term that would meet those requirements yet avoid the problems currently associated with the terms custody and access as well as possible diverse connotations and understandings of the word "shared." The term would need to be consistent with a child-centred approach and would have to be carefully defined to have a clear and accepted understanding and use by both the courts and the public.

It may be that new child-centred words and phrases will need to be identified to describe a variety of particular parenting responsibilities and arrangements for use in parenting plans and court orders. In any case, the Committee's proposals regarding terminology clearly deserve further, careful consideration.

Recommendation 19

This Committee recommends that the federal government work with the provinces and territories toward the development of a nation-wide co-ordinated response to failures to respect parenting orders, involving both therapeutic and punitive elements. Measures should include early intervention, parenting education programs, a make-up time policy, counselling for families experiencing parenting disputes, mediation and, for persistent intractable cases, punitive solutions for parents who wrongfully disobey parenting orders.

Enforcement

Responding to concerns about access enforcement is another important element of the Strategy for Reform. It is essential to reinforce the principle that both parents should be involved in their children's lives unless it would not be in the child's best interest to do so. The Government of Canada supports the Committee's view that mechanisms need to be available to resolve access disputes quickly if conflict is to be avoided.

There are differing views about the nature and scope of the problem of access denial and also different philosophies about enforcement . One view stresses punishment - that the response to a failure to comply with the terms of an access order should be strong criminal sanctions. The other view, as expressed by the Committee, is that a range of measures is required to respond to what can often be, in reality, a complex problem. There may be many different, relevant reasons for non-compliance with an access order, and these reasons should be considered, particularly with respect to the use of penalties that may have effects on the children as well.

What is needed is an enforcement system that would enable non-custodial parents to enforce orders where there is unreasonable denial of access, but not impose punitive measures unfairly. Enforcement should include non-court processes that would allow for a proper investigation of the matter and promote constructive ongoing relationships between the child and both parents. Legal remedies for breaches of access must be available, but punitive measures should remain a last resort to respond to deliberate, unreasonable non-compliance cases.

The Government of Canada supports the approach recommended by the Special Joint Committee:

In the Committee's opinion, the optimal solution to the problem of access denial would be one arrived at in a coordinated fashion by the Government of Canada and all the provinces/territories working together, so that the solution provides more than a punitive response and is put in place across the country for all kinds of parenting orders (p.55).

As the Committee recommended, the Government of Canada will work with the provinces and territories to develop a nationwide, coordinated response to failures to respect parenting orders, involving a range of both therapeutic and punitive elements that would include:

  • early intervention;
  • parenting education programs;
  • a make-up time policy;
  • counselling for families experiencing parenting disputes;
  • mediation; and
  • for persistently intractable cases, punitive solutions for parents who wrongfully disobey parenting orders.
Recommendation 38

This Committee recommends that the Attorney General of Canada work to develop a co-ordinated national response to the problem of child abduction within Canada.  

Parental Child Abduction

There are potentially both international and domestic aspects to the problem of parental child abduction. In both cases the very serious danger is the total estrangement of the child from one of the parents. There are Criminal Code provisions (sections 282 -286) on parental child abduction, as well as recently amended model parental child abduction charging guidelines to clarify what should be considered criminal behaviour. Civil enforcement measures, which are used either in addition to the criminal measures or in cases where criminal charges are not appropriate, appear to be more problematic. Parents must rely on the provinces' reciprocal enforcement legislation, and the process can be cumbersome, expensive and awkward for parents who do not live in the province to which the abducting parent has fled with the child. The Committee's recommendation that the Attorney General of Canada work to develop a coordinated national response to the problem of child abduction within Canada highlights the important federal coordination role that the Government of Canada can and must play to address this problem.

Recommendation 41

This Committee recommends that the federal government implement the recommendations of the Sub-committee on Human Rights and International Development of the House of Commons Standing Committee on Foreign Affairs and International Trade entitled International Child Abduction: Issues for Reform.

The related problem of international child abduction - when the child is removed from Canada to a foreign jurisdiction - was studied recently by the Subcommittee on Human Rights and International Development of the House of Commons Standing Committee on Foreign Affairs and International Trade. In November 1998, the Government's Response to the Fourth Report of the Standing Committee on Foreign Affairs and International Trade was released. That document provides the Government of Canada's detailed response to international child-abduction issues. It includes responses to the Committee's recommendations concerning the Hague Convention on the Civil Aspects of International Child Abduction, the RCMP Missing Children's Registry, police intervention, training, extradition, border control, passport control and restrictions on international travel.

Recommendation 12

This Committee recommends that the relationships of grandparents, siblings and other extended family members with children be recognized as significant and that provisions for maintaining and fostering such relationships, where they are in the best interests of those children, be included in parenting plans.

Recognizing the Importance of Grandparents

Children benefit from the opportunity to develop and maintain meaningful relationships with grandparents and other extended-family members. The Government of Canada supports the idea of promoting specific family law policies that would recognize this principle. In this respect, further work with the provinces and territories will be undertaken to address the problems raised by grandparents. As the Committee has noted, an important step would be to specifically identify the importance of grandparent-grandchild relationships in lists of statutory criteria to help parents and judges determine the "best interests of the child."

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