High-conflict Separation and Divorce: Options for Consideration

2004-FCY-1E

1.  INTRODUCTION

In 1998, the Special Joint Committee on Child Custody and Access published its report For the Sake of the Children. Among the many issues that the Committee examined was that of high-conflict divorce. The Committee stated:

Unfortunately, a significant number of divorcing parents become locked in bitter and sometimes violent disputes over custody and access arrangements. These situations are truly dangerous for children, and the Committee examined the evidence carefully for ways to reduce conflict between divorcing parents, to the benefit of the children. Indeed, the principal objective underlying all the recommendations in this report is to induce as thorough as possible a shift from the current state of family law policies and practices, which all too often escalate conflict between divorcing parents, to a decision-making approach that reduces conflict (Canada, 1998: 22).

For example, Dr. Eric Hood of the Clarke Institute in Toronto testified that high-conflict divorce situations "are like war zones." The children go back and forth between their fighting parents and "are afraid to tell the truth" (Canada, 1998: 123).

The Joint Committee's report thoroughly examined the present Divorce Act. The report criticized the corrosive terminology used in the Divorce Act, such as "custody" and "access," and proposed the language and expression of "shared parenting." It recommended thatall parents seeking parenting orders who could not agree on the terms of the order be required to participate in an education program to help them become aware of the post-separation reaction of parents and children, children's developmental needs at different ages, the benefits of cooperative parenting after divorce, parental rights and responsibilities, and the availability and benefits of mediation and other forms of dispute resolution. A certificate of attendance at such a post-separation education program would be required before the parents would be able to proceed with their application for a parenting order.

The report also recommended that divorcing parents be encouraged to develop a parenting plan setting out the details of each parent's responsibilities for residence, care, decision-making and financial security for the children, as well as a dispute resolution process to be used by the parties. It recommended that divorcing parents be encouraged to attend at least one mediation session to help them develop such a parenting plan for their children. However, mediation and other non-litigation methods of decision-making would be structured to screen for and identify family violence. When there was a proven history of violence by one parent toward the other or toward the children, alternative forms of dispute resolution would be used to develop parenting plans only when the safety of the person who had been the victim of violence was assured and when the risk of violence had passed.

The Committee specifically examined the issue of high-conflict divorce, stating that some families seemed to get stuck in separation or divorce. It added:

[W]ith one parent or both intent on maintaining such a degree of conflict and tension ... it becomes impossible to resolve parenting and property decisions without a great deal of intervention from legal and mental health professionals. The incidence of such divorces is estimated at between 10 and 20 % of the divorcing population. Virtually everyone involved in family law agrees that the conflict between many of these couples is so intractable that there is never likely to be a legal remedy for their problems. These are couples who perpetuate their conflict regardless of developments in the lives of their children, their own remarriage and prohibitive legal expenses (Canada, 1998: 87).

Witnesses were divided over whether high-conflict divorce should include or exclude domestic violence situations. For example, one witness described a high-conflict family as one that "falls short of actual violence or assault but for whom, post-separation, a hostile relationship continues" (Canada, 1998: 87). The Committee concluded that options such as mediation were clearly inappropriate for some couples in high conflict. Alternative remedies had to be provided where necessary. The Committee wanted to improve the legal system's response to high-conflict divorces without imposing any harmful restrictions on the cooperative majority. It said:

One of the options Members believe should be considered is a mechanism for screening out high-conflict divorces and treating them in a different stream. This would recognize the potential harm to children whose parents continue their conflict far beyond a reasonable adjustment period. The system should identify these families in order to provide protection for their children, who are at greater risk than most children of divorce. Once families are identified, their files should be "red tagged" or flagged in some other way, so that decision makers do not make determinations about parenting arrangements without knowing the full details of the case and the family's history (Canada, 1998: 88).

Moreover, the Committee was concerned about "one alarming symptom of a high-conflict divorce: that a child may decide that he or she does not want to visit one parent or the other" (Canada, 1998: 89). The Committee believed that such a desire on the part of a child showed a serious problem that called for immediate intervention.

Accordingly, in relation to high-conflict divorce cases, the Committee made several recommendations, including the following.

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.

That professionals who meet with children experiencing parental separation recognize that a child's wish not to have contact with a parent could reveal a significant problem and should result in the immediate referral of the family for therapeutic intervention.

That the federal, provincial and territorial governments work together to ensure the availability of supervised parenting programs to serve Canadians in every part of Canada.

That the Divorce Act be amended to make explicit provision for the granting of supervised parenting orders where necessary to ensure continuing contact between a parent and a child in situations of transition, or where there is clear evidence that the child requires protection.

That, to deal with intentional false accusations of abuse or neglect, the federal government assess the adequacy of the Criminal Code in dealing with false statements in family law matters and develop policies to promote action on clear cases of mischief, obstruction of justice or perjury.

As regards the issue of the "parental alienation syndrome", given problems concerning the applicability of the concept, that the federal government work with the provinces and territories to encourage child welfare agencies to track investigations of allegations of abuse made in the context of parenting disputes, in order to provide a statistical basis for a better understanding of this problem (Canada, 1998: 89, 91, 110, 114).

In 1999, the Government of Canada responded to the report of the Special Joint Committee on Child Custody and Access (Canada, 1999). The government advised that its response was rooted in a number of framework principles. First, a key theme is the desire to focus on child-centred reforms that minimize the negative effects of divorce on children. Second, its response fully endorsed the Joint Committee's emphasis on promoting coordinated multi-jurisdictional efforts while respecting the constitutional division of powers. In other words, all governments need to work together. Third, the Government of Canada committed itself to a holistic approach to family law reform. It endorsed the Committee's key objective of reducing parental conflict. However, it acknowledged that conflict-free, cooperative parenting cannot be effectively enforced by the Divorce Act alone. Improving educational and social services to foster healthy interpersonal relationships is equally important. Finally, the response embraced the principle that "one size does not fit all". The levels of conflict of separating and divorcing parents vary widely, as do children's needs. As well, children undergo developmental changes over time. Hence, the government recognized the need for flexibility to meet the best interests of children. No single model of post-separating parenting is ideal for all children (Canada, 1999: 7-9).

Among the elements of the government's strategy was managing conflict, and the need to focus on minimizing the negative impacts of divorce on children. The government acknowledged that the Special Joint Committee's challenge to design a system to accommodate different types of divorce without penalizing families for their situations. The Government of Canada stated:

[Our] 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 families, concerns about inadequate parenting, and violent situations (Canada, 1999: 26).

The government addressed the issue of high-conflict divorce by agreeing with the Special Joint Committee's recommendation to "work together to encourage the development of effective models for the early identification of high-conflict families seeking divorce." It identified the need to consult with appropriate experts from different disciplines, review the legal responses adopted by other jurisdictions, and identify further research and criteria to help develop specialized principles and criteria to guide appropriate parenting arrangements. In particular, the government identified the need to follow up on the following possible high-conflict suggestions:

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 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; and,

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 an 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 under the court order; and, that a parent must not hinder or prevent contact that a child is supposed to have under the order) (Canada, 1999: 29-30).

This paper is a first step in carrying out this work. It begins with a review of the professional literature concerning the effects of divorce on children and adults, and, in particular, the effects of high-conflict divorce on children whose parents are separated or divorced. It examines the various types or theories of conflict, and looks at possible definitions of high-conflict divorce. Suggested interventions in high-conflict divorces are reviewed, as well as the law and legal initiatives in the United States, England, Australia and New Zealand. Finally, four options for consideration concerning the law in this area are proposed.

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