High-conflict Separation and Divorce: Options for Consideration

2004-FCY-1E

7. 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:

  • 1. Case management

    When a proceeding for divorce is begun, all issues relating to the divorce shall be heard before the same judge, unless it is impractical to do so.

  • 2. Special master

    • 2.1 A special master [or referee] may be ordered by the court to investigate any controversy that arises between the parties relating to the divorce proceeding if the parties consent to the appointment of a special master.

    • 2.2 If the parties do not consent, a special master [or referee] may be ordered by the court to investigate any controversy that arises between the parties relating to the divorce proceeding:

      • on motion by one of the parties; or
      • on motion by the judge, who has been assigned to determine the issues in the divorce proceeding.
    • 2.3 A party may object to the appointment of any person appointed as special master if:

      • the potential special master shows enmity or bias towards either party;
      • the potential referee has formed or expressed an unqualified belief or opinion about the merits of the action; or
      • the special master is related to, or is or has been in a business relationship with, one of the parties.
    • 2.4 The special master shall decide the controversy and make a written report to the court within 20 days after receiving all the evidence related to the controversy.

    • 2.5 The decision of the special master shall stand as the decision of the court, and may be reviewed as if made by the court.

  • 3. Parenting education classes

    • 3.1 Once a divorce petition is filed with the court, if the parties have any children, the court shall order that the parties attend parenting education classes.

    • 3.2 Parenting education classes shall include in their curriculum:

      • information about child development;
      • information about how parental conflict affects children; and
      • exercises focussed on skills to help a parent communicate better with, and resolve conflict with, with the other parent.
    • 3.3 If there is a history of domestic violence or if domestic violence is alleged by one of the parties, each party shall attend separate parenting education classes at different times.

  • 4. Mediation

    • 4.1 If it appears on the face of the divorce petition that custody or access is contested by the parties, the court shall set aside the contested issues for mediation.

    • 4.2 Mediation proceedings shall be held in private and be confidential.

    • 4.3 The mediator has the duty to assess the needs and interests of the child involved in the controversy.

    • 4.4 The mediator may interview the child if the mediator believes it is necessary.

    • 4.5 If there is a history of domestic violence or if domestic violence is alleged, the mediator shall meet with each party separately and at different times.

    • 4.6 The mediator may submit a recommendation to the court about the custody of, or access to, the child.

  • 5. Independent legal counsel

    • 5.1 If the court determines that it would be in the best interest of the child, it may appoint counsel to represent the child in the divorce proceeding.

    • 5.2 The child's counsel shall ensure that the best interests of the child are represented.

    • 5.3 Unless inappropriate in the circumstances, the child's counsel has the duty to:

      • interview the child;
      • review the court files and all relevant records available to both parties; and
      • make any further investigation that counsel considers necessary to ascertain the facts relevant to the divorce proceeding.

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

  • That a study be conducted to determine whether litigants in person are increasing in divorce courts and, if so, what problems are caused by litigants in person to the parties involved in the dispute and to the court system, and what means might be used to reduce conflict in these situations.
  • That courts consider establishing minimum training requirements for professionals ordered by the court to examine issues of parenting and access arising from the dispute, such as mediators, guardians ad litem, special masters, etc.
  • That a study be conducted to empirically examine the concept of high-conflict divorce in all its dimensions, and that this study be used to establish a baseline to distinguish high-conflict divorce from the other levels of conflict that arise during separation and divorce.
  • That a study be conducted to determine whether courts should create strategies for intervention to reduce conflict on an ongoing basis after the divorce proceedings have ended and, if so, what those strategies should be.

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

  • A. Definition of high-conflict divorce

    High-conflict divorce means a divorce proceeding in which (a) 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; (b) child welfare agencies have become involved in the dispute; (c) several or frequent changes in lawyers have occurred; (d) issues related to the divorce proceeding have gone to court several times or frequently; (e) the case has been before the courts a long time without adequate resolution; (f) there is a large amount of collected affidavit material related to the divorce proceeding; and (g) there is repeated conflict about when a parent should have access to the child.

  • B. Parental conflict prior to court filing: public information

    The court's role as a representative of society and as an experienced "witness" to the damage of parental conflict to children can strongly influence the development and credibility of a public information strategy. Judges need to take a leadership role in providing such information. The primary purpose of providing public information is to engage public interest, concern and awareness critical to moving public education systems, churches and agencies to develop and fund classes, workshops, counselling and group services working with families experiencing high-conflict divorce.

  • C. Parent education and family court services assessment

    All parents filing for divorce must attend a Divorce Parenting Orientation, which includes information about the impact of divorce on children and which may include skill-based teaching designed to help parents communicate with each other in order to reduce levels of conflict. After the Divorce Parenting Orientation, parents still unable to develop a parenting plan need to be ordered into mediation or be referred by the court for an Alternative Dispute Resolution assessment.

  • D. Guidelines for determining custody and visitation in violent parent cases

    (These are based on the guidelines of Dr. Janet R. Johnston for domestic violence cases.)

    • D.1. Domestic violence is the use of physical force, restraint or threats of force to compel one to do something against one's will or to do bodily harm to self, cohabitant or family member, or the mother or father of one's child. It includes but is not limited to: assault (pushing, slapping, choking, hitting, biting, etc.); use of or threat with a weapon; sexual assault; unlawful entry; destruction of property; keeping someone prisoner or kidnapping; theft of personal property; and inflicting physical injury or murder. There may also be psychological intimidation or control in the form of stalking, harassment, threats against children or others, violence against pets, or the destruction of property. It is understood that, most often, evidence of physical abuse is not available. However, lack of corroborative data does not diminish the indications of violence available to the mediator/evaluator from reports by the victim.

      Premises

      • D.1.A.1. Domestic violence is detrimental to children, regardless of their relationship with the perpetrator of violence. Children who have witnessed or overheard severe or repeated incidents of violence perpetrated by parent(s) are likely to be acutely or chronically traumatized and at risk for emotional, behavioural and social difficulties, including long-term victim or perpetrator roles. Children who do not directly witness spousal abuse are also negatively affected by the climate of violence in their homes and are likely to experience impairment of development and socialization skills. Even very young children and infants who are not thought to be cognizant of the violence can be negatively affected. For these reasons, children need to be protected from witnessing threats of violence or actual physical abuse, and from exposure to a climate of violence in their homes.

      • D.1.A.2. Domestic violence is understood to be behaviour that arises from multiple sources, which may follow different patterns in different families, rather than a syndrome with a single underlying cause. Parent-child relationships are likely to vary with the different patterns of violence, and children of different ages and gender are affected differently. There are also different trajectories for recovery and the reconstitution of family relationships, and for the potential for future violence. For these reasons, domestic violence families need to be considered on an individual basis when helping them develop appropriate post-divorce parenting plans.

      • D.1.A.3. Domestic violence can occur in all cultures and ethnic groups. However, the interpretation of what constitutes violence and what is considered normal emotional expressiveness varies greatly among different cultural and ethnic groups. It is important to interpret the meaning of a behaviour within its cultural context whenever possible. It is understood that a client may behave in ways that the majority culture views as destructive or psychologically aberrant, but that at the same time may be consonant with the client's native culture. Whenever possible, it is important to provide culturally aware divorce court services staff who can "bridge" from one culture to another in interpreting domestic violence and helping families make appropriate custody and visitation plans.

    • D.2. Physical custody and residence

      • D.2.A. General guidelines

        • D.2.A.1. The absence of violence perpetrated by the parent, and the capacity of the parent to provide a violence-free home for the child, should be given considerable weight in determining timesharing and the child's residence. It is important to note that domestic violence often is perpetrated not by the parents but by "significant others" (e.g., new boyfriends or girlfriends, new spouses or extended family), and the potential for violence to occur in this wider domain needs to be considered. It is also recognized that physical custody awards should not be based on any one factor, and that informed clinical judgements are necessary in weighing and taking into account the circumstances of each child and family.

        • D.2.A.2. Adult victims of repeated or severe incidents of violence may have diminished parenting capacity when the violent relationship is terminated, as a consequence of the victimization. Therefore, prior to long-term decision-making regarding child custody and timesharing, the parent who was the victim would need the opportunity to re-establish competence and stability as a resident parent for a period of time, usually with the support and guidance of professional and peer counsellors.

        • D.2.A.3. When a victim of violence, for self-protection, leaves the home without the children, it should not establish a status quo in favour of the perpetrator of violence. It is understood that there are few resources available to parents with children who leave a violent relationship.

      • D.2.B. Legal custody

        General guideline: joint legal custody is generally not appropriate when there is ongoing high conflict and potential for violence between parents, as it usually requires considerable ability to work cooperatively in joint decision-making. Legal custody orders that keep the tension and hostilities high or that maintain the risk of further violence are contrary to the spirit and intent of a joint legal custody arrangement. No legal custody arrangement should maintain a high level of continuous parental conflict or hinder the parents' ability to make appropriate and timely decisions regarding their children.

      • D.2.C. Specific recommendations

        • D.2.C.1. When there is both current and episodic threats of, and use of, violence, sole legal custody should normally be given to the nonviolent parent. In these cases, the non-custodial parent may be denied right of access to the child's medical and educational records, if such information would provide access to the custodial address and telephone number, which the custodial parent has the right (for safety reasons) to keep confidential.

        • D.2.C.2. When there is a history of domestic violence that is not current, nor both recent and episodic, there should be no presumption in favour of any particular legal custody arrangement. The options include, but are not limited to, the following:

          1. An explicit division of legal custody decision-making rights and responsibilities can be awarded to each parent.
          2. A court master (arbitrator) can be appointed to help parents make joint decisions under a joint legal custody order.
          3. Parents may have joint legal custody provided they both have the capacity to make non-coerced, timely, cooperative decisions for their child, according to an arrangement that does not compromise their safety.
          4. One parent may be awarded sole legal custody.
        • D.2.C.3. If it is determined that sole legal custody is appropriate for a particular family, the agreement should reflect the non-custodial parent's legal right to directly receive information concerning the child(ren)'s health, education and welfare. The agreement should include a provision whereby the custodial parent must inform the relevant health and educational institutions that the non-custodial parent has the right of access upon request to such information (excluding, if appropriate, the custodial address and telephone number). The non-custodial parent should also have the authority to consent to medical treatment on behalf of the child in event of urgent injury or illness.

    • D.3. Access/visitation

      • D.3.A. General guidelines

        • D.3.A.1. Limit the child's exposure to parental conflict. All arrangements for contact between a child and parent should be carefully structured to limit the child's exposure to conflict between the parents and ensure the safety of all present.

        • D.3.A.2. Frequent transitions may not be advisable. When there is ongoing conflict and reasonable fear of violence between parents, or the child shows continued stress reactions to transitions between parents, access arrangements that require the child to make frequent transitions between parents should be avoided. In the special case of infants and young children, which might require more frequent exchanges of the child, special provisions should be made to ensure the comfort and safety of the child and parent.

        • D.3.A.3. Substantial amounts of time with both parents may not be advisable. When there is ongoing conflict and fear of violence between parents, timesharing schedules that require the child to spend substantial amounts of time with both parents are not usually advisable. (In cases when a child appears to need more contact with a same-gender non-resident parent, more visiting time may be appropriate. In this situation, it may also be better for a sibling who is of different gender than the non-resident parent to share the same timesharing agreement, so that siblings can remain together on visits in order to support one another.)

      • D.3.B. Specific recommendations

        • D.3.B.1. Supervised visitation. This involves the use of a third party to transfer the child from one parent to the other, and to remain with the child throughout the visitation period.

          Supervised visitation is recommended when there is indication of current use of, or an expressed threat of, violence. It is also recommended when there has been both recent violence and episodic or ongoing violence in the past. In these cases, the perpetrator should normally have supervised visitation with the child under the following conditions:

          1. An explicit court order should detail the conditions of the supervised access. This should include the times for the visits, the places for exchange of the child, whether telephone contact with the child is permitted and under what conditions, who should supervise the visit or how the supervisor is to be chosen, and who should bear the cost of the supervision. Although it is recognized that the court shall determine who bears the cost of the supervision, it is strongly advised that the parent who has perpetrated violence should normally bear the cost.

          2. The supervisor should be a responsible adult who can be expected to provide appropriate supervision for the visitation. In general, the specific supervisor and the role that this supervisor will play during the visits may be agreed upon by both parents or ordered by the court. The supervisor should be someone with whom the child will be comfortable. The place of visitation should be one in which the child feels comfortable and safe.

          3. The removal of the requirement for supervised visitation should normally be made contingent upon cessation of the threats of, or use of, violence by the perpetrator for a period of time determined appropriate by the court, and by the order of the court, on the successful completion of an approved course of counselling for the person causing the violence.

          4. In the event that supervised visitation under the above terms is determined to be necessary but is not feasible, then the access plan should gravitate toward protecting the child, in which case access with the perpetrator of violence should be suspended until such time that supervised visitation is available or determined to be no longer necessary.

        • D.3.B.2. Suspended visitation. Visitation should be suspended for a designated period of time with a perpetrator of current violence, or with a perpetrator of both recent and episodic or ongoing violence, under any one of the following conditions.

          1. When there are repeated violations of the terms of the visitation order, which adversely affect the child. This includes occasions when the supervisor of visitation reports that the perpetrator of violence uses supervised time with the child to denigrate the other parent, or to obtain information about the whereabouts and activities of the other parent.

          2. When the child is severely distressed in response to visitation.

          3. In the event that supervised visitation under terms ordered by the court is determined to be necessary but is not feasible, then the access plan should gravitate toward protecting the child, in which case access with the perpetrator of violence should be suspended until such time that supervised visitation is available or determined to be no longer necessary.

          4. When there is clear indication that the violent parent has expressly threatened to harm or flee with the child, or if the offending parent attempts to use the child to communicate threats of physical harm or death to the other parent. Such cases should then be evaluated and a recommendation should be made to the court regarding the conditions under which supervised visitations might be resumed, or whether all contact between the child and the offending parent should be suspended indefinitely or permanently terminated. If the evaluation determines that indefinite suspension of parent-child contact is appropriate, it should be made very clear in a court order what conditions would have to be met by the offending parent before resumption of supervised visitations would be reconsidered by the court. If the evaluation determines that reinstatement of parent-child contact is appropriate, any "in person" contact should typically begin with supervised visitation.

          5. If a parent has a history of extreme violence or abusive behavior (i.e. murder, attempted murder, violent sexual assault, and severe child abuse or neglect), extreme caution must be taken with regard to the child's contact with the violence-threatening parent. Any parent-child contact should be suspended until an appropriate evaluation is made to determine under what conditions supervised visitations may occur or whether parent-child contact should be permanently terminated.

        • D.3.B.3. Temporary supervision or suspension of visitation. Either supervised or suspended visitation may be appropriate for a brief period in either of the following circumstances: while fact finding takes place regarding serious allegations of domestic violence, or while the child is being assessed for serious symptoms of distress and/or reluctance to visit.

          Suspended visitation, for a brief period, is appropriate following a traumatic episode of violence perpetrated by one parent, when the abused parent and child have sought shelter (e.g. in a battered women's shelter) and need respite. This period of respite should not be less than two weeks.

        • D.3.B.4. Unsupervised access/visitation. Under an arrangement for access between parents and children when there has been a history of domestic violence but the violence is not current, nor both recent and episodic or ongoing (as in the above sections on supervised and suspended visitation), the following provisions should normally be appropriate.

          • The access arrangements should be explicitly stated in court orders (with respect to schedules, times, dates, holidays, vacations, etc.) that can be easily interpreted and enforced by police officers if necessary, and subject to contempt actions if the orders are violated.
          • Telephone contacts initiated by the parents to one another or to the child should be at scheduled times only. The child should have unrestricted access by telephone to both parents.
          • A restraining order should normally be in place preventing the parent who has perpetrated violence from coming near the other parent, including during drop-off and pick-up times with the child. The use of mutual restraining orders is generally appropriate only when there is evidence of actual mutual physical or psychological abuse.
          • Transfer of the child should be at a neutral safe place, preferably with a third party present.

          When there is considerable concern about the parenting capacities of both parents, and when one or both parties have perpetrated violence, the following may be appropriate.

          • Temporary custody and visitation awards can be made contingent upon either or both parents obtaining parent counselling, and approved counselling for cessation of the violence. If there is evidence that drug or alcohol problems are contributing to the violence, then temporary awards should be provisional upon treatment for these problems also. If treatment and/or repeated attempts to improve parenting skills fail and the children continue to be at risk, referrals should be made to appropriate Child Protective Services.
          • Temporary awards made with these provisos should be subject to appropriate review to ensure compliance with the terms of the agreement and the safety and well-being of the child.
          • It may be appropriate to give more weight in the custody/access decision to providing the child with continuity in relationships with supportive "others" (such as teachers, peers, grandparents) and stability of place (such as neighborhood and school). A parent's need to make a geographical move for economic reasons is an exception to this.
    • D.4. Assessment, treatment, and representation of children

      D.4.A. Specific recommendations

      • D.4.A.1. Children who show symptoms of fear, anxiety, persistent refusal to visit, and other distress in relation to visitation with a parent who is perceived to have perpetrated violence should normally be seen and assessed by Divorce Court workers, or by any counsellor, therapist, or advocate who is trained to interview children and who is prepared to talk with Divorce Court Services. The purpose of this assessment is to hear the child's concerns and recommend appropriate schedules to the court, including safeguards in the visitation plan that help the child feel more safe and comfortable with the arrangement.

      • D.4.A.2. Children who express strong wishes to "talk with the judge" and those who write letters and attempt to communicate with the court should normally be given the opportunity to talk to Divorce Court Services workers or to a legal or mental health counsellor who is trained to interview children and who is prepared to talk with Divorce Court Services. The purpose of interviewing children is to gain a greater understanding of the child's wishes and needs, and to provide the child with an opportunity to be heard. It should be made clear to both parents and the child that the child is not testifying, that a decision about custody and access is not the child's to make, and that the child does not have to choose between parents.

      • D.4.A.3. Children who have witnessed severe or repeated incidents of parental violence are likely to be acutely or chronically traumatized and in need of remedial psychological help. Their reluctance or refusal to visit a parent should not be seen as solely induced by an alienating parent. Whenever possible they need to be referred for psychological treatment, and each parent (whether victim or perpetrator) is likely to need separate collateral parental counselling as well.

      • D.4.A.4. It may be appropriate to appoint a guardian ad litem to represent the child's interests and concerns during the legal proceedings when there has been domestic violence and when the child is symptomatic or reluctant to visit.

  • E. Alternative dispute resolution options when parental violence is not present

    • E.1. Each judicial district should develop appropriate alternative dispute resolution options recognizing differences of resources and needs in each judicial district.

    • E.2. In all districts, a core of mediators should have specific training in high-conflict divorce mediation.

    • E.3. In all districts, mediation or other alternative dispute resolution methods would be utilized prior to contested proceedings involving the custody of children.

  • F. Adjudication

    • F.1. Scheduling/trial setting for high-conflict cases

      • F.1.A. The case needs to be given the earliest possible setting, in order to bring closure to the legal battle. However, sufficient time must be allowed in order for parties to exhaust alternative dispute resolution (ADR) possibilities before the trial. If domestic violence or other considerations make ADR inappropriate, the trial should be held at the earliest possible opportunity.

      • F.1.B. Generally, no custody/visitation hearings will be held before the moving party has attended the court-ordered divorce parenting workshop or "divorce orientation" or "mediation class." A divorce parenting orientation is available weekly to parents in each district. The order to attend the divorce parenting workshop advises the parties they will be expected to submit a parenting plan after the workshop.

      • F.1.C. At the time of filing, there are two recommended models to protect children of high-conflict divorce.

        • At the time of filing, parties are referred to the divorce parenting workshop and within 30 days following the workshop, they must file a temporary parenting plan. Parents must then file a final parenting plan within 60 days after filing the temporary one. If filing deadlines are missed, parties are ordered to case assessment or some form of ADR, and, if necessary, adjudication. Under this model, any trial setting would be 120 to 150 days after the date of the case filing.
        • Upon the filing of the Answer or other pleadings indicating custody issues raised, an Order to File a Parenting Plan within 30 days is entered. If the parenting plan is not filed, the file is pulled and given to the judge who orders a Status Conference. A Status Conference may be held by telephone. If the judge determines during the conference that the children need protection and it is a high conflict case, the case is placed on the "fast track" and a trial is scheduled within 90 to 100 days.
    • F.2. Pre-trial order/pre-trial conference issues

      • F.2.A. Appointment of a guardian ad litem or attorney for the children

        It is recommended that in a high conflict custody adjudication the court should consider whether the children should have independent representation either by a guardian ad litem or by separate counsel. The decision of which to appoint depends upon the decision-making capacity of the child.

      • F.2.B. Appointment of an expert witness

        The parties are encouraged to agree to the appointment of an expert to perform a custody evaluation (including a psychological assessment of the parties and a home study), in lieu of hiring separate experts for each side. If the parties are unable to agree on the appointment, the court should consider making the appointment sua sponte or may order any party to be evaluated by the other party's evaluator. The order should address the admissibility of the evaluation as the expert's direct testimony, without the necessity for the expert's presence at the hearing (although either party could subpoena the expert to be cross-examined regarding the evaluation).

      • F.2.C. Referral to settlement conference or special master

        • F.2.C.1. Even if other forms of alternative dispute resolution have failed or have been deemed inappropriate due to concerns about the danger of domestic violence, the presiding judge may consider referring the case to another judge for a settlement conference focussing on the issue of custody.

        • F.2.C.2. In order to shorten the trial, the court may consider appointing a special master to conduct fact-finding on some or all of the issues to be tried.

    • F.3. Trial

      • F.3.A. The judge sets the tone at the outset of the trial or hearing. The judge makes it clear to the parties and the attorneys that they are to present their case in a manner that reduces the level of conflict and hostility between the parties and treats each parent with respect and courtesy.

      • F.3.B. The judge needs to manage the trial to assure completion in the time allotted, in order to avoid having to finish the trial at a later date. Invariably, lengthy interruptions result in new grievances and issues that the parties will want to bring before the court. It is recommended that if the judge doubts whether the parties will complete their proof in the time allotted, he or she limit the amount of time each side will have to present its case (charging cross-examination time to the side conducting the cross) to assure timely completion.

    • F.4. Interviews of children

      Interviews of children need to be handled with great caution. Children normally love both parents and should not be placed in the position of having to choose one parent over the other.

  • G. Decree/parenting plan

    • G.1. A detailed shared-parenting plan should be included in the decree. As a general rule, the higher the level of conflict between the parents, the more specific the shared-parenting plan should be to protect the children. In cases involving domestic violence, see Section D. Guidelines for determining custody and visitation in high conflict and violent parent cases. To protect the children, the shared-parenting plan in the decree should include the following:

      • G.1.A. Be designed in a manner that will reduce and/or minimize the opportunity for conflict between parents.

      • G.1.B. Maximize the time the 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.

      • G.1.C. Take into account the developmental needs of the children. The implications of those needs for the parenting plan differ depending on the level of conflict between the parties (see "Normal Visitations versus Conflict Visitations" in Garrity and Baris, 1994).

    • G.2. To protect children, parenting plans may include some or all of the following provisions:

      • G.2.A. Requiring a written log which travels with the children, so that information about meals, medications, activities, etc. may be transmitted with minimal contact between parents and without children carrying messages.

      • G.2.B. 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.

      • G.2.C. Separate or alternating attendance at special events for the children.

      • G.2.D. Unrestricted private telephone contact between the children and the non-residential parent.

      • G.2.E. 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.

      • G.2.F. If parental alienation is established, ongoing post-divorce therapy with a neutral health professional may be appropriate.

      • G.2.G. Include a plan for resolving post-decree problems with, and changes to, the shared-parenting plan set forth in the decree, including the use of alternative dispute resolution processes when appropriate.

      • G.2.H. Include, 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 should have authority to make recommendations to modify the parenting plan.

  • H. Post adjudication

    All ADR options should be considered in post-adjudication proceedings.

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

  • Preamble

    WHEREAS research documents that the harm done to children as a result of divorce is exacerbated by high conflict;

    AND WHEREAS it is recognized that in cases of divorce involving children, neither parental conflict nor the judicial system should cause additional harm to children:

    DECLARATION OF PRINCIPLES:

    This Act is based on the following principles:

    1. children of high-conflict divorce need protection from the potentially harmful effects of the adversarial approach used in the judicial system to resolve disputes between parents;
    2. the judicial system, lawyers, mental health professionals and community services should collaborate proactively to prevent or reduce conflict between disputing parents in a divorce proceeding;
    3. the judicial system, lawyers and mental health professionals should collaborate to assist parents in developing a plan for the ongoing caretaking of children;
    4. a parenting plan will serve the best interest of the child only if it minimizes conflict, maximizes time with the parent when appropriate, and meets the child's developmental needs; and,
    5. parents and children need safety from threats, harassment and physical violence in order to provide and care for their children.
  • 1.1. Title. This Act may be cited as the Protection of Children in High-conflict divorce Act

  • 1.2. Definitions

    "Domestic violence" means physical abuse, or sexual abuse, or the threat of physical or sexual abuse, used by one party in the divorce proceedings against the other party or against a child of the family.

    "High-conflict divorce" means a divorce proceeding in which:

    1. either party has a criminal conviction for [or has committed or has alleged to have committed] a sexual offence or an act of domestic violence;
    2. either party has committed, or is alleged to have committed, an act of domestic violence;
    3. child welfare agencies have become involved in the dispute;
    4. in relation to the divorce proceeding, there have been several changes in lawyers;
    5. any party in the divorce proceeding has gone to the court several times to resolve issues relating to the proceeding;
    6. the divorce proceeding has been before the court for a long time without being resolved;
    7. there is a large amount of collected affidavit material related to the divorce proceeding; or in which
    8. there is repeated conflict over the issue of parental access to a child.

    "Supervised access" means face-to-face contact between a parent and a child, being access that occurs:

    1. at any place approved by the court where access can be appropriately supervised; or
    2. in the immediate presence of any person approved by the court.
  • 2. Parent Education Classes

    • 2.1. The court, on its own motion or that of a party to the divorce proceeding, may determine if the divorce proceeding is a high-conflict divorce.

    • 2.2. If the court determines that the divorce proceeding involves high conflict, the court shall order that the parties attend parenting education classes.

    • 2.3. Parenting education classes shall include in their curriculum:

      1. information about child development;
      2. information about how parental conflict affects children; and
      3. exercises focussing on skills to help a parent communicate with, and resolve conflict with, the other parent.
      4. If there is a history of domestic violence or if domestic violence is alleged by one of the parties, each party shall attend separate parenting education classes at separate times.
  • 3. Mediation

    • 3.1. If the parents are unable to agree on a parenting plan for the children after attending parent education classes, the court shall order that the parties attend mediation presided over by a mental health professional who has received training in the resolution of high-conflict divorce situations.
    • 3.2. Mediation proceedings shall be held in private and be confidential.
    • 3.3. The mediator has a duty to assess the needs and interests of the child involved in the controversy.
    • 3.4. The mediator may interview the child if the mediator believes that it is necessary.
    • 3.5. If there is a history of domestic violence within the family or if domestic violence is alleged by one of the parties, the mediator shall meet with each party separately and at separate times [alternative: The court shall refuse to order mediation].
  • 4. Fast-tracking the Trial

    If the parents are unable to agree to a parenting plan after mediation, the court shall:

    1. order that the trial to resolve all issues arising from the divorce proceeding be held as soon as practicable; and
    2. order a temporary parenting plan after hearing evidence presented by the parties, to last until the court at the trial of the divorce proceeding orders a permanent parenting plan.
  • 5. Legal Counsel for the Child

    • 5.1. If the court determines that it would be in the best interest of the child, the court may appoint counsel to represent the child in the divorce proceeding.

    • 5.2. The child's counsel shall ensure that the best interests of the child are represented.

    • 5.3. Unless inappropriate in the circumstances, the child's counsel has the duty to:

      1. interview the child;
      2. review the court files and all relevant records available to both parties; and
      3. make any further investigations as the counsel considers necessary to ascertain the facts relevant to the issue in the divorce proceeding.
  • 6. Appointment of Special Master

    • 6.1. A special master [or referee] may be ordered by the court to investigate any controversy that arises between the parties relating to the divorce proceeding, so long as the parties consent to the appointment of a special master.

    • 6.2. If the parties do not consent, a special master [or referee] may be ordered by the court to investigate any controversy that arises between the parties relating to the divorce proceeding:

      1. on motion by one of the parties; or
      2. on motion by the judge who has been assigned to determine the issues in the divorce proceeding.
    • 6.3. A party may object to the appointment of any person appointed as special master if:

      1. the potential special master shows enmity or bias towards either party;
      2. the potential referee has formed or expressed an unqualified belief or opinion about the merits of the action; or
      3. the special master is related to, or is or has been in a business relationship with, one of the parties.
    • 6.4. The special master shall decide the controversy and make a written report to the court within 20 days after receiving all the evidence relating to the controversy.

  • 7. Contents of Parenting Plan

    • 7.1. Any parenting plan approved by the court in relation to a high-conflict divorce shall:

      1. be designed in a manner that will reduce the opportunity for parents to engage in conflict;
      2. maximize the time the 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.
    • 7.2. Parenting plans relating to high-conflict divorce shall set out in detail the rights and obligations of the parents, including:

      1. requiring a written log which 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 parental alienation is established, ongoing post-divorce therapy with a neutral health professional may be appropriate;
      7. a plan for resolving post-decree problems with, and changes to, 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 coordinator to arbitrate disagreements that arise between the parties in regard to construction or implementation of the shared-parenting plan. The parenting coordinator shall have authority to make recommendations to modify the parenting plan.
  • 8. Allegations of Domestic Violence

    • 8.1. When, in any divorce proceeding, it is alleged that a party to the proceeding has used violence against the child or a child of the family or against the other party to the proceedings, the court shall, as soon as practicable, determine, on the basis of the evidence presented to it by or on behalf of the parties to the proceedings, whether the allegation of violence is proved.

    • 8.2. When the court is satisfied that a party to the proceeding has used violence against the child or a child of the family or against the other party to the proceeding the court shall not:

      1. make any order giving the violent party custody of the child to whom the proceedings relate; or
      2. make any order allowing the violent party access to that child.
    • 8.3. The court may order that the violent party have supervised access to the child if the court is satisfied that the child will be safe with the violent party during that access time.

    • 8.4. In considering whether a child will be safe while a violent party has supervised access to the child, the court shall consider:

      1. the nature and seriousness of the violence used;
      2. how recently the violence occurred;
      3. the frequency of the violence;
      4. the likelihood of further violence occurring; and
      5. the physical or emotional harm caused to the child by the violence;
      6. whether the other party to the proceedings considers that the child will be safe while the violent party has access to the child, and consents to the violent party having access to the child;
      7. the wishes of the child, if the child is able to express them, having regard to the age and maturity of the child;
      8. any steps taken by the violent party to prevent further violence occurring; and
      9. any other matter the court considers relevant.
    • 8.5. If the court is unable to determine whether the allegation of violence is proved, but is convinced that there is a real risk to the safety of the child, the court may make any order it believes is necessary to protect the safety of the child.

  • 9. Breach of Parenting Plan

    • 9.1. A party who believes that the other party in the divorce proceeding is attempting to, or has failed to comply with, the terms of a parenting plan approved by the court, may, on notice to the other party, apply to the court for a finding that the other party breached the terms of the parenting plan.

    • 9.2. If the court determines that the parent has not complied with the terms of the parenting plan, the court shall order:

      1. if access has been wrongly denied by the non-complying parent, that the non-complying parent provide the aggrieved party additional time with the child equal to the time missed with the child as a result of the parent's non-compliance;
      2. that the non-complying party pay the aggrieved party all court costs, reasonable attorney's fees and other reasonable expenses incurred in locating or returning a child; and
      3. that the non-complying party pay the aggrieved party a civil penalty not less than $100.
    • 9.3. If the non-complying parent is presently able to comply with the terms of a parenting plan but refuses to do so, the parent shall be jailed for contempt of court until he or she complies with the order, but in any event for no more than 180 days.

Date modified: