Final Federal-Provincial-Territorial Report on Custody and Access and Child Support
Part 1: Custody and Access (cont'd)
The Family Law Committee's mandate for this project required it to
"identify and make recommendations respecting custody and access issues that arise before, during and after family disputes." The previous two sections of this paper deal with the key legislative and service issues. This section of the paper examines how the family justice system deals with other custody and access issues arising in separated or separating families, from the time of the birth of a child, through all stages of family breakdown. As a result of this analysis, the Committee identified a number of areas for legislative action, service improvement, research or further work.
When parents separate, they need to consider several main legal issues in deciding their post-separation parenting arrangement.
Which laws-provincial, the federal Divorce Act or both-apply to the situation?
What are the main features of these laws? What are the differences?
How to ensure their children's perspectives are heard and understood?
What are the options in determining their parenting arrangement?
What are the particular concerns or unique circumstances that affect the decision making?
What default provisions will apply if they decide not to make a formal arrangement?
Following an information-gathering stage, the parents may decide on an arrangement with the assistance of skilled professionals, such as lawyers and family counsellors. If no agreement can be reached, the parents may proceed to court. Different dispute resolution processes apply to a court matter, some of which may be ordered by a judge but are external to the court process (for example, assessments and mediation), and others that are part of the court process (for example, case conferences, pre-trial conferences and opportunities for disclosure of information). Following the establishment of a parenting arrangement, there may be a need to enforce or change the arrangement, and this may trigger the whole decision-making cascade again.
Many families have particular issues that complicate the usual process. Of particular importance are situations where the behaviour of one or both parents makes it unsafe for the other parent or the child to participate in direct negotiation of the custody and access issues. These situations include domestic violence and child abduction. In some situations addiction or mental illness may result in a parent being incapable of caring for a child.
In many separations, one parent makes the decision to separate against the wishes of the other parent. The other parent in these situations may negotiate children's issues as a means of maintaining contact with the former partner, or in the hope of reconciliation, and may not be fully cognizant of the ramifications of agreements they make about their parenting arrangements. On the other hand, a parent who has been left may be resentful and, in retaliation, may take unreasonable positions on parenting arrangements. There is a risk that either parent may knowingly or unknowingly use the children as pawns to meet his or her own needs.
In addition, many parents never live together with their biological children. Such situations must be accommodated in any discussion of custody and access.
When Parents Never Reside Together
The parental responsibilities of parents who never marry or reside together are governed completely by the law of the province or territory in which they live. While all provincial and territorial legislation establishes that a child's rights are the same whether born within or outside marriage, the provinces and territories have different starting positions concerning the custody and access of a child born to parents who have never lived together.
The Saskatchewan legislation provides that
"where the parents of a child have never cohabited after the birth of a child, the parent with whom the child resides is the sole legal custodian of the child." Custody under the Saskatchewan legislation
"means personal guardianship of the child and includes care, upbringing and any other incident of custody having regard to the child's age and maturity." In other words, the person with whom the child lives has both physical custody and decision-making authority. Under the British Columbia legislation, the mother is the sole guardian, which is defined to include both guardianship of the estate and guardianship of the person of the child, unless a court orders otherwise.
Some statutes draw no express distinction between the situation where parents cohabit after the birth of the child and where they do not. Several take the same approach as the Ontario legislation which provides that
"where the parents of a child live separate and apart, and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement to custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides."
Sometimes the fact of parentage is at issue. This most often arises in the context of child support, and usually it is paternity that is at issue. All the jurisdictions have legislation that sets out how the courts are to determine this question. The statutory provisions all differ, but there are some important common elements. Almost all the statutes contain provisions establishing a presumption of paternity in certain circumstances, and providing that, in these circumstances, a person is presumed to be the father unless the contrary is proven on a balance of probabilities. The circumstances giving rise to a presumption typically include:
The man was married to the mother at the time of the child's birth.
The man was married to the mother and the marriage was terminated by death or dissolution of marriage within 300 days of the child's birth.
The man and the mother have acknowledged in writing that the man is the father of the child.
The man was cohabiting with the mother in a relationship of some permanence at the time of the child's birth or the child was born within 300 days after the cohabitation ceased.
The man has been recognized by a court to be the father of the child.
Where a child is born to parents who are not cohabiting, the first important legal step in terms of establishment of parentage is the birth registration. The jurisdictions have varying requirements under their legislation relating to birth registration and the effects of it on the establishment of paternity.
In view of the fact that an increasing number of Canadian children are born to unmarried parents, the Family Law Committee believes that there is a need to do further work to consider whether changes to legislation are required to ensure a level of consistency between jurisdictions. Such a review might be timely given the proposed federal legislation dealing with reproductive technology.
It is recommended that the provinces and the territories review their legislation respecting establishment and recognition of parental status, and entitlement to custody and access on the birth of a child, with a view to identifying any issues that require a legislative or service response, and making recommendations in the future.
When Cohabiting Parents Separate
When parents cohabit, there are three main models in Canada of custody and access upon separation. These models apply from the time of separation until there is a formal, legally recognized agreement between the parents or a court order. In some jurisdictions, the parent with whom the child lives has physical custody and decision-making authority and the other parent may have access. In others, the parent with whom the child lives has physical custody, the other parent has access, and they share decision-making authority. A third model provides that the parents continue to have joint custody until a court orders otherwise. In Quebec, the children remain under the parental authority of both their parents.
These models provide very different starting points for parents who separate. Many parents may not understand the subtle differences between these models. These parents will work out their own arrangement about the care of their children, using terms like custody, access, guardianship, parental authority, residence, care and control or visitation, without relating these terms to the law of their province.
In terms of the child's best interests, there are two main policy considerations that require balancing. On the one hand, the child's living arrangement should be secure so the parent with whom the child resides can effectively manage the child's care, and so the child is not subject to abrupt removal by the other parent, violence or inadequate parenting. On the other hand, the statutory model should not jeopardize the relationship that the child had with both parents prior to separation. Each jurisdiction has struck its own balance, based on assessments and perceptions of societal norms.
Where abuse, violence, mental illness, or child welfare matters have forced a parent to separate, that parent must seek the protection of the court to change the default statutory provisions for custody and access. Additional caution may be needed in seeking the input of children in these situations, as the stress can be detrimental to their mental health and development. They may identify with the abusive parent, view themselves as the saviour of the mentally ill or addicted parent, or blame themselves for disclosing abuse.
The point of separation offers many opportunities for government and the community to support parents and children. Assistance to parents who are separating should come in the form of parent information and education services; training for persons who are likely first points of contact, including lawyers, counsellors, child welfare workers, doctors and religious advisors; and emotional support for those parents who require time to accept the reality of separation. Further details of the service recommendations of the Family Law Committee are found in this report under the section entitled Service Options and Responses.
When Parents Cannot Agree on a Parenting Arrangement
Whether parents have never resided together or they have cohabited, many will not have a formal arrangement about the care of their children. They may not have a formal arrangement for many reasons. For example where one parent, usually the father, has little or no contact with his children, neither parent may see any advantage to entering into a formal arrangement. Other examples include situations where the parents manage co-operatively without dispute, or the parents lack the resources to enter into a formal arrangement. About a third of separated parents will have no formal arrangement for the care of their children.
Other parents will arrive at some written, legally sanctioned arrangement about the care of their children. Most commonly this arrangement is set out in a separation agreement. Only a minority will obtain a court order. Most separation agreements are prepared with the assistance of one or more lawyers. Some will contain very limited information about parenting arrangements, while others will incorporate a detailed parenting plan.
Parenting plans usually consist of a detailed schedule of the child's living arrangements; a list distributing decision-making responsibility about different facets of the child's life (for example, one parent might be responsible for religious education, while the other could decide if the child would participate in select sports teams); restrictions on changing the child's or either parent's residence, provisions for holiday periods with the child; and a dispute resolution mechanism. Parenting plans have the benefit of anticipating many of the conflicts that arise in "usual" separations, but for the parent who is highly controlling or who simply wants to maintain contact with the former spouse, they can lead to seemingly endless rounds of negotiation over details. In the hands of an abusive former spouse, a parenting plan can be a very effective tool of control, because they do not change the underlying assumption of most law that the parents share decision-making authority. Usually, the plan is only enforceable between the parents, and parents have few real options if their former spouses simply choose to ignore the rules set out in the plan.
Lawyers usually draft separation agreements and consent court orders. Lawyers may simply reduce to writing the terms the parties have agreed to themselves with or without assistance from other persons such as mediators. Where the parties are unable to reach an agreement, lawyers assist the parties through negotiations. Lawyers frequently encourage clients to consider mediation, a parenting plan or a conciliatory solution during the preparation of a separation agreement. If the area of disagreement is small, direct negotiation between lawyers will remove the need to have another professional involved with the family. In many cases, settlement of child custody and access issues through a separation agreement may provide a more flexible and comprehensive remedy for the parties than a court order or at least provide as durable an arrangement as a court order.
In a few areas in the United States and Canada, lawyers are developing a new approach to resolving family disputes-collaborative family law. Lawyers trained in interest-based negotiation work with their clients and other counsel to negotiate a settlement in a face-to-face process. The lawyers and clients agree before negotiations begin to forego litigation or, if the negotiation fails, the parties must hire new counsel. Thus the focus is clearly on settlement.
The Divorce Act requires lawyers to advise clients of counselling and mediation facilities, and to discuss the advisability of negotiating custody and support issues. Given the range of dispute resolution mechanisms that has been developed, from arbitration to collaborative law, the current requirements in the legislation, and any similar provisions in provincial and territorial legislation, may be too narrow.
It is recommended that jurisdictions encourage the development of collaborative family law practice as a further option for parties to consider as a method of dispute resolution.
It is recommended that family law legislation require lawyers to advise clients of the full range of available dispute resolution options.
When Married Parents Decide to Divorce
Like marriage, divorce is a legal event. It can only be accomplished by a court order. Only persons who are married need to get a divorce, but not all married parents who separate will divorce since there is generally no legal need to do so unless one of the former spouses wishes to remarry.
When parents do divorce, they have the option of making parenting arrangements under the Divorce Act. Because of the structure of the Canadian constitution, if one parent decides to proceed under the Divorce Act to determine parenting arrangements, proceedings under provincial law to determine the custody or access of the children are stayed or terminated. The paramountcy of the federal statute is significant, because if there is a substantial difference between the two statutes, the parent who perceives the federal statute to be more advantageous to his or her rights will likely proceed with a divorce.
Currently, under the Divorce Act, a judge can adjourn the divorce proceeding to allow the parents to attempt reconciliation. It may be that the Divorce Act should also allow a judge to adjourn the proceedings so that the parties can attempt to resolve their issues outside of court through mediation or other non-judicial dispute resolution mechanisms.
While the Family Law Committee endorses the use of alternatives to court action to resolve parenting disputes, there is a lack of consensus about providing legislative authority in the Divorce Act for a judge to order parents to attend mediation, an assessment or other provincially funded services. Since most jurisdictions provide for the use of alternate approaches to dispute resolution through court rules or legislation, further work is required to determine whether there are legal or practical limits to the ability to access these services in Divorce Act cases.
As well, Canadians are increasingly mobile and it is common for one or both parents to move, for better employment opportunities or other reasons, and leave the jurisdiction where the family resided after the marriage or relationship breakdown. Relative consistency of federal, provincial and territorial laws has the benefit of reducing the confusion about the law that applies to family relationships across the country and the manner in which child-centred decision making occurs.
It is recommended that jurisdictions work to ensure that children are treated similarly and provided similar protection in Canada by providing relative consistency in laws affecting custody, access and child support.
When Parents Seek the Assistance of the Court
It will not be safe or reasonable for some families to establish their own parenting arrangements because of problems such as conflict, emotional distress, competing values, family violence, serious mental illness, or addiction, which place one of the parents or the children at risk. Other families will attempt to make their own parenting arrangements and not succeed. Still others will find themselves before a court, because a court order is a necessary prerequisite to the resolution of the parenting arrangements (for example, they require an order finding them a parent before they can claim access), or for some other entitlement (for example, income security benefits.)
Court activity is governed by two components: the applicable law and the court procedure (which is usually set out in court rules). Under the constitution, each province controls its court procedures. As explained above, provincial law governs all parents who are not married. Even married parents can choose to start a court action under the law of their province, rather than the Divorce Act. In some provinces there are two levels of court that can decide family law issues. Where there are two levels of court only the higher court can grant a divorce. Typically, legal fees and court costs are higher in the higher court and procedures are more complex, and so some parents prefer to resolve their parenting issues in the lower court. In other provinces, and in parts of some provinces, the two levels of court are "unified" so that one court has the capacity to make all family law decisions.
Court processes across Canada are adversarial, meaning that each person is responsible for bringing forward the facts and law to convince the judge of the merits of their case. Since parenting is an ongoing relationship, resolving parenting issues through an adversarial model can be counterproductive. Parents who come to view the court case as a battle, where one will be the winner and one the loser, are ill equipped to continue a co-operative relationship. In response to this perceived flaw, many provinces have added additional supports and steps to the court process when custody is at issue to help ensure that the focus on the best interests of the child is not lost.
It is recommended that courts make appropriate use of judicial and non-judicial settlement approaches to avoid the hardening of positions and to promote early settlement and narrowing of issues in dispute.
Steps in the Court Process
Court procedures vary from province to province and between levels of court within those jurisdictions which still have two levels of court. A jurisdiction's civil law procedures usually govern its family proceedings, although some jurisdictions have specialized family procedures. Sometimes attempts have been made to use plain language in the codes of procedure for family law to allow the lay litigant to better understand the process.
Civil courts, particularly federally appointed superior courts, tend to have extensive codes of procedure. These allow for complex litigation over a whole range of civil issues, including commercial disputes. The language and process of the court is most often foreign to the parents, who can feel that their parenting decision has been "handed over" to a decision-making process over which they have little control. For example, in a research report into the effectiveness of mediation, a Manitoba study shows that only a small number of participants felt they had some control over the court process.
Usually, there is an early opportunity for a parent to get an interim or temporary order, which will last until the final determination of the issue through settlement or trial. Most court systems have at least one conference, directed by a judicial officer, to discuss the prospect of settlement of some or all of the issues between the parties. In specialized court procedures there can be many conferences with a judge before a trial.
It is recommended that case management systems provide for expedited access to judicial decision making where it is in the best interests of the child to have the matter dealt with on an urgent basis.
At any point during the court process, parents can reach an agreement about their parenting arrangement. Because they have an application before the court, this agreement is often incorporated into a consent order of the court. If no agreement is reached, the court case will proceed through all of the steps and culminate in a trial, at which evidence is heard. At the conclusion of the trial, the judge will order a parenting arrangement for the children.
Court adjudication and trial have a role to play in the protection of parents and children who may be at risk of harm or manipulation. However, because most family law, apart from child protection legislation, is private law and parents must handle their own litigation, the court process tends to favour the parent who has the most financial resources. Legal aid funding for court activity is unevenly distributed across the country, and between the civil and criminal legal aid systems.
When the Court Makes an Order
A court may only make an order about an issue raised by one of the parents. Either parent must ask the court to assist with the parenting arrangement before the court has the power to make an order. Court orders can be interim (pending a final order) or final. The title final on court orders dealing with parenting arrangements is somewhat misleading since the law allows a parenting order to be changed if it is in the child's best interest to do so, and if there has been a material change since the making of the order.
For married parents to be divorced, the court must make a divorce order. Often, parenting arrangements that have been agreed to in a separation agreement are included in the divorce judgment.
Court orders in Canada tend to be drafted by the lawyers who represented the parents, or by court staff. These orders may be very different in the level of detail that they provide about the parenting arrangement. Some courts will incorporate a detailed parenting plan, while others will simply state that the parents have joint custody of the children. Courts in Canada may order a full spectrum of parenting arrangements. Case law confirms that the court can attach any conditions to an order for custody or access that it thinks are necessary to give effect to the order.
If the parents have been to court, the court order is the primary definition of their future parenting relationship. Parents can benefit from clear, unequivocal language in the court order setting out each parent's responsibilities to the children. Because they have had to turn to the court to resolve their parenting dispute, it is more likely that they need more guidance or rules to resolve parenting disputes in the future. It is important that the order be clear for enforcement purposes as well. Manitoba has been proactive in addressing the issue of clarity in court orders by developing a template of clauses that judges and lawyers can include in court orders through an "auto-orders" pilot project.
It is recommended that orders be worded clearly and consistently to ensure that the parties understand their obligations and that the orders can be enforced.
When a Person Needs to Change a Parenting Arrangement
Children grow and families change. Parenting arrangements or decisions about the child's upbringing may have to be changed many times over the course of a child's life. Even where "final" decisions have been reached between a child's parents, changes such as new parental relationships, one or both parents' desire to move, a child becoming an adolescent and changes in financial circumstances can trigger a re-evaluation of the parenting arrangement. How the change is made is determined, to a great extent, by the form of the original arrangement.
Usually a written agreement about the care of a child can be changed by a further written agreement that is signed by both parties and witnessed. Many separation agreements contain dispute resolution mechanisms, including mediation and arbitration, to assist parents to decide on the terms of the variation.
A court order can only be changed by a further court order. Therefore, even when parents agree, if the parenting arrangement is set out in a divorce judgment or a custody and access order, they will have to return to court to have the order changed. Some parents need the assistance and protection of the court even where they have reached an agreement. For example, judicial review of parenting changes can guard against coercion by one parent. However, where the parents initially obtained a court order, not because they had a dispute, but for other reasons discussed above, such as income security requirements, court action to change their parenting arrangement may itself trigger discord. In other words, a court hearing with its attendant emotional and financial costs may not be necessary or desirable in some cases.
It is recommended that procedures for variation of orders provide that, where there is consent, custody, access and child support orders can be varied expeditiously and without a court hearing.
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