GOVERNMENT OF CANADA STRATEGY FOR REFORM

Implementing the Strategy for Reform

Element 3: Managing Conflict

This third element of the Strategy reflects the need to focus on minimizing the negative impacts of divorce on children. It responds directly to For the Sake of the Children, which states that: "The challenge... for governments is to design a system that can accommodate different types of divorce, without penalizing couples in one category through options meant for another type of divorce" (p.73).

The Government of Canada's objective is to meet this challenge by attempting to identify the different levels of conflict that separating families experience and to develop specific responses designed with these levels in mind. This approach will include formulating specialized policies to deal with high-conflict disputes, concerns about inadequate parenting, and violent situations.

As a first step, the Government of Canada will review the various aspects of the family law system to identify how it can be modified to better recognize the diverse requirements for dispute resolution. It is important to ensure that the system intervenes only when necessary and does not impose inappropriate solutions.

Identifying options for legislative amendments to the Divorce Act will be an important component of this review, but not the only task. There is an equally important need to work closely with the provinces and territories to examine how this approach affects broader service-delivery issues. Developing a spectrum of services to respond to the diverse needs of families is a significant challenge.

Cooperative Parental Agreements

For the Sake of the Children emphasizes the need to promote cooperative parental agreements. Child-development experts agree that children are best served by arrangements that are reached by genuinely mutual consent and in a timely fashion.

Children also benefit from arrangements that maintain high-quality relationships with both their parents.

A central focus of the Strategy for Reform, therefore, is to identify reforms targeted specifically at parents who can work out individualized parenting arrangements for their children without intrusive legal interventions. Legislative provisions can authorize and promote the use of consensual agreements. Education about the advantages of cooperative parenting and information sessions about mediation and other non-adversarial mechanisms can encourage parents to agree to arrangements that maximize the involvement of both parents in the ongoing care of their children.

An equally important task will be to formulate approaches to deal with divorcing families who require more intervention to ensure that children are protected from violence, threats of violence, inadequate parenting or continued exposure to high levels of parental conflict.

Recommendation 32

This Committee recommends that federal, provincial and territorial governments work together to encourage the development of effective models for the early identification of high-conflict families seeking divorce. Such families should be streamed into a specialized, expedited process and offered services designed to improve outcomes for their children.  

High Conflict

As noted in For the Sake of the Children, "the Committee's findings and recommendations reflect the desire to improve the legal system's response to high-conflict divorces, without imposing any harmful restrictions on the cooperative majority" (p.73).

Experts agree that exposure to unresolved, high-conflict situations increases risk factors in children:

[Some divorcing parents] remain embittered and actively hostile for many years, and this places their children at a considerably higher risk of psychosocial problems. These high-conflict parents and couples are identified with multiple characteristics:

  • high rates of litigation and relitigation,
  • high degrees of anger and distrust,
  • intermittent verbal and/or physical aggression,
  • difficulty focusing on their children's needs as distinct from their own,
  • and chronic difficulty cooperating and communicating about their children after divorce.

Their interparental struggle assumes center stage and, as a consequence, children's personal circumstances and developmental needs are often given inadequate attention1.

The Government of Canada believes that in order to provide protection for these children, who are at greater risk, it is important to develop mechanisms to identify high-conflict divorces and treat them in a different stream. Policy-development work is already under way and includes the following:

  • consulting with appropriate experts from different disciplines to identify appropriate screening tools;
  • reviewing the significant professional literature in this area that outlines the different conflict levels;
  • summarizing the relevant empirical data and research and identifying the substantial areas of agreement as well as the areas of continuing uncertainty or disagreement;
  • reviewing the legal responses adopted by other jurisdictions; and
  • identifying further research that would assist in developing specialized principles and criteria to guide appropriate parenting arrangements.

In particular, we propose to conduct further consultations with a view to identifying specific reform proposals concerning the following points:

  • High-conflict family relationships can include:
    • long-term, emotional disputes involving high degrees of anger and distrust;
    • chronic disagreements over parenting issues;
    • repeated use of unsubstantiated allegations of poor parenting;
    • or a history of misuse of the legal system.
  • Where there are concerns about ongoing high parental conflict, arrangements should allow parents to disengage from their conflict with each other and develop separate parenting relationships with their children.
  • As a general principle, where there are long-term, emotional, high-conflict parental disputes, alternatives to co-parenting arrangements requiring cooperation and joint decision making may be in the child's best interests.
  • Parenting plans should be required to be very specific and should identify both inclusive and exclusive elements. Court orders for high-conflict cases should contain specific prohibitions that will assist in enforcing the order (e.g. that a parent must not remove a child from the care of the person charged with the responsibility to provide residence; that neither parent should interfere with any of the duties or responsibilities that each person has according to the court order; and that a parent must not hinder or prevent contact that a child is supposed to have under this order).

Concerns about Inadequate Parenting

There also appears to be a need to adapt the current legal framework to include specialized principles and criteria to guide appropriate parenting arrangements for children exposed to inadequate parenting behaviour. Work in this area will include identifying inappropriate or inadequate parenting behaviour that would put children at risk, such as:

  • neglect or substantial non-performance of parenting functions;
  • emotional impairment or personality disorders that interfere with the performance of parenting functions; and
  • impairment resulting from drug, alcohol and other substance abuse that interferes with the performance of parenting functions.

The Government's objective is to ensure that parenting arrangements minimize children's harmful exposure to this kind of behaviour and provide necessary protections for the children. Parent-child contact in these cases should be limited and possibly made conditional on the parent getting the appropriate therapy, counselling or training. It will also be important to specify clearly what is to be done if that assistance is not obtained.

Violence

The Government of Canada strongly believes that it is important to send a message that all aspects of the family law system must take into account incidents of family violence involving the child or a member of the child's family. Ensuring the safety of all parties involved must be the guiding principle.

For the Sake of the Children stresses that witnesses at the Committee's public hearings expressed differing views about whether family violence is a gender-based problem and how it should be defined. However, it also notes that there is general agreement on several key factors:

Children who witness violence between their parents are affected negatively. Where there is violence between the parents, the risk of escalation at the time of separation is high and poses real safety concerns for both parent and child. The presence or risk of violence is unarguably relevant to decisions about parenting arrangements. This is a problem that affects a minority of divorcing couples and unmarried separating couples (p. 78).

Clearly, there is a need to formulate approaches to deal with family violence as a factor in custody and access cases. In order to develop the specific details of this policy, the following work will be undertaken:

  • an evaluation of whether legislative provisions would help increase public and professional awareness and assist in the education of judges, lawyers and other individuals involved in the justice system as well as victims, perpetrators and the public;
  • further review of the concerns raised at the public hearings about the definition of family violence, the usefulness of police assault statistics, the profiles of abusers and victims, and the validity of the key tools for measuring violence;
  • further consideration of the Committee's reference to "proven history" of family violence in its recommendations. The question of the standard of proof remains a difficult one. A requirement for proof of conviction would be a very high standard for family law, especially in spousal abuse cases, where the abusive conduct often occurs in private and where the victims, for a variety of reasons, tend to hide or deny the abuse;
  • a review of legislative reforms and policies in other jurisdictions that deal with child custody and access disputes in which spousal violence is involved; and
  • an evaluation of recent research on "models" of spousal violence to determine whether specialized principles and criteria could be developed that would better reflect the specific nature and context of the violence.
Recommendation 43

Criminal Codein dealing with false statements in family law matters and develop policies to promote action on clear cases of mischief, obstruction of justice or perjury.

Recommendation 44

 

False Allegations

The Committee rightly insists that the safety and well-being of children must always be the principal consideration. Since physical and sexual abuse of children does occur, unfortunately, it is critical that those with legitimate concerns abut a child's safety should be able to speak up without fear or needless restrictions. For that very reason, though, unwarranted allegations of abuse must be strongly condemned.

The Government of Canada supports the Committee's position that such allegations must be discouraged (p. 89). It will be important to identify measures to prevent false allegations that do not restrict or limit the reporting of legitimate concerns about a child's safety.

For the Sake of the Children identifies the problem of intentional false allegations as a potentially serious complication associated with high-conflict cases. The Report notes that "individual fathers relating their personal experiences and men's groups from across Canada testified that a tactic used by some parents and their lawyers in an effort to deny parenting time to the non-residential parent (usually the father) is false allegations of physical or sexual abuse or neglect" (p. 85).

Making a false statement under oath or by affidavit in this or any other matter is perjury, which is already an indictable offence under the Criminal Code. Other Code provisions deal with public mischief and obstruction of justice. But that does not mean there is no room for improvement. As the Committee recommends, the Government of Canada will examine these provisions to see whether they are adequate to deal with the problems raised in the Committee's report.

A serious problem, though, is that the actual incidence of false allegations of child abuse in Canada is not known and it is an inherently difficult issue to research. No psychological test or profile can conclusively determine whether an accuser, an accused or a child is telling the truth about an allegation. Children are especially vulnerable and may have problems describing or even understanding incidents of abuse. Even the mental health professionals and social workers involved in a case may come to conflicting opinions and recommendations. As a result, it can be very difficult to prove conclusively either that abuse did or did not occur.

This issue, moreover, is one that crosses jurisdictions and will require the cooperation of numerous agencies and organizations if it is to be addressed properly. We therefore agree with the Committee's recommendation that the Government of Canada work with the provinces and territories to encourage child welfare agencies to track investigations of allegations of abuse in the context of parenting disputes in order to provide a statistical basis for a better understanding of this problem.

In addition, the Government will be conducting further research to ensure that the policies developed are adequate and appropriate. This research will include:

  • identifying the relevant issues and trends that are documented by Canadian case law;
  • examining and assessing the current response to allegations of child abuse by the civil and criminal legal systems, including working with the provinces to review charging policies; and
  • evaluating the usefulness of parenting education programs as a tool to reduce unwarranted allegations by fully informing parents about the harm it causes children.
Recommendation 18

Whereas the federal government is required by statute to review the Federal Child Support Guidelines within five years of their implementation, this Committee recommends that the Minister of Justice undertake as early as possible a comprehensive review of the Guidelines to reflect gender equality and the child's entitlement to financial support from both parents, and to give particular attention to the following additional concerns raised by this Committee:

Element 4: Financial Responsibility

The impact of child support is an important element of the framework within which custody and access determinations are made.

When parents separate, they are free to agree on how they will continue to support their children financially. If they cannot agree, both parents will continue to be financially responsible for their children but a court must decide which parent will be primarily responsible for the children and how much the other parent will have to contribute to their expenses. The Federal Child Support Guidelines are designed to ensure that children continue to benefit from the financial means of both parents after they separate. The Guidelines attempt to balance the need for certainty with the need for flexibility to take into account the individual circumstances of each family.

The federal Department of Justice has identified many issues related to the Guidelines through various research projects, including a detailed review of case law. These issues are of three types: technical issues; issues requiring clarification or minor policy changes; and more substantive Guidelines issues requiring important policy changes or requiring an amendment to the Divorce Act.

The Committee raises several substantive issues in this area. These include the definition of "child of the marriage" in the Divorce Act, the formula and economic assumptions that underlie the Guidelines and the section on shared custody, and issues relating to access costs. Addressing these issues will require further research and will need to be coordinated with policy developed in the area of custody and access.

The Department of Justice has been monitoring the implementation of the Federal Child Support Guidelines since they came into effect on May 1, 1997. The Divorce Act stipulates that by May 1, 2002, the Minister of Justice must provide Parliament with the results of a comprehensive review of the provisions and operations of the Guidelines and the determination of child support under the Act. The Department of Justice is closely reviewing the implementation of the Guidelines and recommending amendments as the need arises. However, given the extent of the child support reforms, the system requires time to adjust. After less than two years into the implementation of the child support reforms, their application is just starting to stabilize and their real effects cannot yet be ascertained.

Individual research reports on aspects of the implementation of the Guidelines are published as they become available. The overall program of research is planned to continue until March 2001. A comprehensive synthesis of all research projects will be presented as part of the report to be tabled in Parliament in 2002.

The concerns raised by the Special Joint Committee are being given particular attention in the review of the Guidelines. As noted above, further research is required to assess the success of the Guidelines in meeting its objectives. However, the Department of Justice is looking at what changes could be made prior to the five-year review to help clarify certain sections of the Guidelines.


1. Michael E. Lamb, Kathleen J. Sternberg, and Ross A. Thompson, "The Effects of Divorce and Custody arrangements on Children's Behavior, Development, and Adjustment." Family and Conciliation Courts Review, Vol. 35, No. 4, October 1997, p. 396.

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