REPORT ON FEDERAL-PROVINCIAL-TERRITORIAL CONSULTATIONS

HIGH CONFLICT RELATIONSHIPS

Almost all couples experience some level of conflict during separation and divorce. The degree of interpersonal and legal conflict varies widely and conflict levels can change depending on the issues the parents are dealing with.

High conflict parents may have serious underlying problems, such as emotional, mental-health or substance abuse problems. High conflict cases consume a large amount of court time and services. The level and intensity of parental conflict is also a very important factor in children's adjustment after separation or divorce. Parental conflict and lack of cooperation also have a negative effect on children's adjustment after separation or divorce.

It has been suggested that improvements to the family law system are required to protect children from the negative effects of high levels of conflict between their parents. Specific approaches that have been tried include parent education programs, supervised access and exchange centres, and intensive court management of high conflict cases.

Three key questions were asked regarding high conflict relationships:

  • In your experience, how well does the family law system promote the best interests of children in situations involving high conflict relationships?;
  • What are the advantages and disadvantages of the various approaches governments could take to promote child-centred decisionmaking in high conflict cases?; and
  • How could services be made more helpful to parents who are trying to reach agreement on how they will care for their children after divorce?

Promoting the Best Interests of Children

Many respondents said that the current family law system does not adequately promote the best interests of children when parents are in a high conflict relationship. Some said that the inadequacy of the law is evident in the fact that parents return to court over and again, drawing both financial and emotional resources away from the children. It was also suggested that separating or divorcing parents in high conflict situations often place their own needs above those of the children, as when parents use children as pawns.

Other respondents said that there should be no special provision in the Divorce Act to deal with high conflict cases. They pointed out the danger that specifying remedies for particular circumstances (i.e. high conflict) would infer that these remedies are unavailable in other circumstances. While suggesting that some priority be given to high conflict cases, in terms of ensuring the availability of services, respondents cautioned that the inclusion of special provisions for high conflict cases may also provide the opportunity for parties to argue about the character of their relationship.

Legislative Approaches

Many respondents said that, first and foremost, the law should focus on the best interests of children when addressing high conflict situations. They also discussed the definition of high conflict and the impact of high conflict situations on custody and access arrangements.

Defining High Conflict

Some respondents had strong concerns about the term high conflict and, in particular, the kinds of criteria that may be used to discern high conflict cases from those involving violence. These respondents said that this distinction suggests that a certain level of abuse is acceptable, which is incorrect. They said the following:

  • The common relationship between woman abuse and high conflict cases warrants careful analysis of each case, including consideration of the social context in which the conflict or abuse occurs;
  • Incidents of abuse are commonly mislabelled as "mutual abuse" or "mutual battering";
  • Any assessment of incidents of high conflict or violence must consider the prognosis for reoccurrence and identify who is the main aggressor;
  • Since there is no difference between high conflict and violent relationships, it is important not to make specific legal provisions for violent situations different than for those that are considered high conflict; and
  • It is very difficult to draft legislation that distinguishes between high and low conflict, and a legal definition may lead to more conflict over what the terms mean.

Other respondents took a different approach to defining high conflict situations during separation or divorce. They said the following:

  • The law must recognize the heightened stress and humiliation that parents experience when going through divorce or separation;
  • Incidents of high conflict and abuse in such situations should not be determinants of access to children; and
  • Bias against fathers in the courts must be addressed and amended.

Still others suggested that the definition of high conflict needs to encompass other factors, for example, abuse, alcoholism, drug use or mental illness.

Impact on Custody and Access

Those respondents who equate high conflict with violence said the following:

  • High conflict relationships should result in limited or no access rights for the conflicting parent; and
  • A child-centred approach precludes joint custody in high conflict relationships: contact with both parents is often not beneficial, since violent and controlling parents are not, by definition, fit parents. Joint custody may therefore be damaging to children in situations of high conflict.

Those respondents who said that high conflict is a natural by-product of divorce or that interparental conflict does not equate inability to parent well also said the following:

  • Parental conflict should not preclude co-parenting;
  • It is wrong to assume that parents who cannot get along should automatically not be allowed joint custody;
  • Shared parenting can help reduce parental conflict by removing excessive power from one of the parents;
  • The law presumes equal-time shared parenting; and
  • There should be no legislated rules for determining the parameters of parenting in joint custody arrangements.

Legislative Options

The respondents' views on the overall legislative approach to high conflict relationships were reflected in their reactions to the five legislative options. It should be noted that arguments presented against option 1 were echoed in arguments in favour of option 2, and vice-versa. The same applies for arguments in favour of and against options 3 and 4. To avoid repetition, only the perspectives expressed in support of each option are presented.

Option 1

The law should include no specific provision. Changes to address high conflict cases could have a negative effect on the majority of parents who co-operate. The focus should instead be on making changes to support parents who can reach cooperative solutions.

Some respondents adhering to this option said that it opens up the possibility for a presumption of "shared parenting." With this option, there may be greater scope for allowing parents, through joint custody, to parent the way they feel is appropriate. Others supported option 1 because they felt it is more important to focus on developing specific provisions for situations of family violence than for high conflict situations.

Other points raised in favour of option 1 were as follows:

  • There is no need to create additional intrusive laws;
  • Any agreement between parents is better than a court decision;
  • The current legislation already empowers judges to make specific detailed orders or to specify dispute resolution mechanisms (as proposed in options 2 and 3); and
  • It should be (and currently is) up to the judge's discretion, guided by other professionals, to decide whether a particular order is appropriate in an individual case.

Option 2

The law should say that, when judges are concerned about ongoing high conflict parenting disputes, they should be able to set out in the court order very specific and detailed parenting arrangements to provide a regular routine and autonomy for each parent's time with the children.

Some respondents preferred this option, arguing that ordering specific and detailed parenting arrangements early in the process would lessen the degree of conflict between parents and serve the children's best interests. They said the following:

  • Strict rules that are immediately enforced act to de-escalate the conflict as parents begin to develop a routine and pattern;
  • Parents who have been "successful" in a highly managed parenting arrangement often work more collaboratively later;
  • Detailed court orders would help reduce the opportunities for misinterpretation and abuse of such orders;
  • Very specific orders would improve the protection of children and the non-abusive parent; and
  • Parents with power and control issues cannot engage in successful joint parenting decisionmaking.

Some of those in favour of option 2 specified factors or conditions that should be considered in determining the court-ordered parenting arrangements. Suggestions included the following:

  • An assessment of the high conflict situation must include how the parents function in the rest of their lives. It is important to attend to any mental or behavioural disorders that may affect the parents' parenting ability and to be aware that such things are common in high conflict relationships;
  • Lawyers should notify judges of any criminal court orders so that family court orders may conform to these;
  • There should be communication between the civil and criminal courts, for example, about restraining orders and assault charges;
  • When there are concerns about high conflict, the specific access and custody arrangements should not require any cooperation or joint decisionmaking, nor require contact between the parents;
  • A time schedule should be set for the court to report on how the arrangement is progressing and whether any changes should be made;
  • Parents who circumvent the court order should face immediate and consistent consequences;
  • The police should have a stronger mandate to enforce court orders;
  • A court-paid mediator should monitor the situation after the order has been made and also help the parents adapt to the arrangements; and
  • When developing the court order, the practical realities of access (including travel time and shift work) must be considered.

Option 3

The law should say that, when judges are concerned about ongoing high conflict parenting disputes, they should be able to specify in the court order a dispute resolution mechanism that the parents are to use. Judges should order compulsory therapeutic mediation for the parents or should impose co-parenting seminars.

Those respondents in favour of this option said that anyone with custody or access rights should have to use programs or mechanisms to sort out issues of conflict and to recognize the needs of their children. Many respondents stressed that this option should be accompanied by some sort of incentive for parents to cooperate. It was also pointed out that dispute resolution mechanisms must be accessible and affordable.

Option 4

The law should discourage arrangements requiring cooperation and joint decisionmaking when there are concerns about ongoing high conflict parenting disputes. The law could say that these arrangements would not be in children's best interests.

Those respondents in favour of option 4 (who often also favoured using the term parental responsibility to describe the custody and access arrangement) said that forced conflict resolution mechanisms in situations of high conflict are likely to be both unsafe and unproductive. They said the following:

  • When orders are issued in high conflict disputes that require parental cooperation they only serve to exacerbate the conflict;
  • Participating in conflict resolution processes may be unsafe in situations of high conflict, given the power dynamics between aggressive and non-aggressive parents;
  • Canadian statutes should, in fact, restrict the use of mediation in cases that include violence against women;
  • Since real cooperation is not possible in high conflict situations, it is up to the courts to settle the disputes; and
  • Litigation should be a preferred option to mediation.

However, some respondents also said that parents who are willing to cooperate and work the issues out by themselves (outside the court system) should be supported. In these cases, the courts should not have to lay out provisions or settlements for parents.

Option 5

The law should include a combination of the above approaches.

Many respondents preferred a combination of the options, most commonly options 2 and 3 or 2 and 4. The arguments in favour of these combinations were generally similar to those presented for each individual option above. Some additional points are noted below.

Preference for a combination of options 2 and 3 was based on the notion that highly detailed court orders for parenting arrangements paired with ordered dispute resolution through a designated judge (or another binding decisionmaking person) would be the most efficient. Other points raised included the following:

  • Enforcement mechanisms are important, including legislated consequences for breaching orders;
  • There should be consequences for non-compliance with mandatory cooperative measures;
  • Both court-ordered arrangements and dispute resolution processes must consider differences in socio-cultural beliefs when assigning parental responsibilities; and
  • While this combination of options is generally good, it should not be applied for cases with a history of violence or complete non-cooperation.

Preference for a combination of options 2 and 4 was based on the notion that parents in a high conflict situation do not easily agree. Some respondents indicated that the legislation must specify that safety of children and parents is paramount. Making high conflict parents (and, depending on respondents' definition of high conflict, sometimes violent parents) pursue joint problem solving and conflict resolution would not ensure safety.

Improvements to Services

Most of the services listed in the consultation document were generally considered useful in situations of high conflict.

Some concerns were raised about service provision in general, such as the following:

  • The accessibility of services needs to improve in rural areas;
  • None of the programs or services listed deal specifically with the abuse of fathers and children; this, again, reflects an overall bias in favour of women;
  • There should be a limit to the fees paid to family law professionals, as these professionals often encourage conflict;
  • Unless special facilities exist to identify and divert families into counselling and education programs about children, early judicial intervention should be used to avoid protracted litigation;
  • Such situations demand non-judicial remedies;
  • Parents, lawyers and judges should decide what services are appropriate in any given case; and
  • The full range of services should be available to separating and divorcing parents and their children regardless of whether they have been engaged in the court process.

The written submissions included comments on particular services, as follows.

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