High-conflict Separation and Divorce: Options for Consideration



While options for consideration in this area of family law are many and varied, there are four major ones. Before discussing them, a brief comment is necessary about constitutional limitations. In this area of family law, the Government of Canada only has jurisdiction in matters of divorce. The provinces have jurisdiction over the administration of justice. Therefore, cooperation between those two levels of government is required to address all issues involving high-conflict divorce. Indeed, the federal government has endorsed the promotion of coordinated multi-jurisdictional efforts to ensure the well-being of children whose parents divorce. The author is exceedingly mindful of the limited jurisdiction that the federal government has in this area, and of the need to accord proper respect to the jurisdictions of provincial and territorial governments. This paper is meant to help all governments collectively consider how best to prevent, or minimize the effects of, high-conflict divorce.

7.1 Option One

The first option is to make no distinction between high-conflict families or low conflict families, but to ensure that there are mechanisms to address high conflict when it arises. In this way, high-conflict divorce situations are not stigmatized by being singled out for special treatment and are seen as just one end of a continuum of conflict in divorce. The components of this option would focus on changes that could affect, in theory, low-conflict to medium-conflict to high-conflict divorces. These components would include:

  1. a unified divorce court that would ensure, as much as possible, that the same judge hears all issues related to a disputed divorce;
  2. the ability to appoint a special master or referee to help resolve conflict issues;
  3. the use of compulsory parenting education classes;
  4. the use of compulsory mediation; and
  5. the ability to appoint independent legal counsel for the child or children of the divorce.

To assist the spirit of cooperation among the federal government, the provinces and the territories, an outline of these components, to help promote discussion on these issues, is as follows:

In addition to these proposals, the following recommendations could be considered:

7.2 Option Two

This option proposes to address high-conflict divorce directly through the use of limited guidelines. Again, these guidelines are proposed in the spirit of a coordinated, multi-jurisdictional approach among the federal government and the provinces and the territories, and are not intended to encroach on provincial jurisdiction in this area. It is more limited than the draft protocol set out in Option Three, below. It is more limited in that it does not create a special tracking mechanism for high-conflict divorce. However, it does attempt to define high-conflict divorce, using most of the indicators set out by Stewart (2001). Admittedly, other definitions of high-conflict divorce can be used, if the Department of Justice Canada and the other Justice ministries of the provinces and territories agree to do so. The guidelines link this definition to elements that should be set out in a parenting plan:

Guidelines in High-conflict Divorce Situations

  1. High-conflict divorce means a divorce proceeding that has the following indicators:
    1. either of the parties has a criminal conviction for (or has committed or has alleged to have committed) a sexual offence or an act of domestic violence;
    2. child welfare agencies have become involved in the dispute;
    3. several or frequent changes in lawyers have occurred;
    4. issues related to the divorce proceeding have gone to court several times or frequently;
    5. the case has been before the courts a long time without an adequate resolution;
    6. there is a large amount of collected affidavit material related to the divorce proceeding; and
    7. there is repeated conflict about when a parent should have access to the child.
  2. When the court determines that a divorce is a high-conflict divorce, any parenting plan approved by the court in relation to that divorce shall:
    1. be designed in manner that will reduce the opportunity for parents to engage in conflict;
    2. maximize the time that children spend with both parents, so long as both parents know and love the children, are safe guardians of the children, and are willing to parent; and
    3. take into account the developmental needs of the children.
  3. Parenting plans for high-conflict divorce shall set out in detail the rights and obligations of the parents, including:
    1. a written log that travels with the children, so that information about meals, medications and activities may be transmitted with minimal contact between parents and without children carrying messages;
    2. transfers that occur at public places, such as a restaurant, library or day-care (if conflict continues to be a problem at transitions, supervised transitions may be appropriate);
    3. separate or alternating attendance at special events for the children;
    4. unrestricted, private telephone contact between the children and the non-residential parent;
    5. if communication between the parents permits, an opportunity for the non-residential parent to care for the children before arrangements are made with a third party;
    6. if there is parental alienation, ongoing post-divorce therapy with a neutral health professional may be appropriate;
    7. a plan for resolving post-decree problems with the shared parenting plan set forth in the decree, including the use of alternative dispute resolution processes when appropriate; and
    8. when appropriate, the appointment of a parenting co-ordinator to arbitrate disagreements that arise between the parties in regard to the design or implementation of the shared parenting plan. The parenting coordinator shall have authority to make recommendations to modify the parenting plan.

7.3 Option Three

This option addresses how to resolve issues arising from high-conflict divorces. There are two general possibilities here.

The first possibility is the creation of a manual addressing all aspects of high-conflict divorce. Such a manual would be modeled on the Idaho Benchbook, Protecting Children of High-Conflict Divorce (Brandt, 1998). The manual would be used by judges to educate themselves about high-conflict divorce in all its aspects, ranging from literature on the impact of high conflict on children, a protocol to be followed by judges in such cases, current law on custody and visitation in such cases, special considerations in domestic violence cases, mediation evaluation and special masters, etc. Such a manual would be lengthy, but would also be comprehensive and would possibly be the best means by which judges, lawyers and mental health professionals are educated about high-conflict divorce. Of course, this manual should be the result of cooperation among all levels of government across Canada.

The second possibility is the creation of a comprehensive high-conflict divorce scheme set out in guidelines. This approach would be less informative than a judicial "Benchbook" on high-conflict divorce. However, it would be more detailed than the one in Option 2, because it would address the issues of domestic violence and the fast-tracking of high-conflict divorce cases.

In this regard, it is suggested that a "Protocol on High-conflict divorce" could set out principles and guidelines on high-conflict situations. This protocol would be modeled, in large part, on the Idaho Protocol. The following is a suggested draft of this protocol for federal, provincial and territorial governments to consider.

Protocol for Judges to Protect Children in High-conflict divorce Cases

7.4 Option Four

This option would create a separate statute, entitled the Protection of Children in High-conflict divorce Act. It would put several of the elements of the protocol outlined immediately above into statutory language, but in addition it would set out, in a preamble, a declaration of principles to set the context for the creation of the Act. Below is a draft statute modelled on this proposal. Because of jurisdictional variables, certain issues needed to ensure the effectiveness of this Act would have to be implemented by the provinces. For ease of convenience for the reader, the measures to be taken by the provinces are placed in brackets in this draft. The intent of this approach is to give a full picture of what a coordinated, multi-jurisdictional approach would look like. It is meant for the consideration of all levels of government and, it is hoped, it can help give them a clearer understanding of what a coordinated effort by all governments could achieve in this area of law.

The Protection of Children in High-conflict divorce Act