An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access

2001-FCY-2E

OBJECTIVES AND CHALLENGES FOR REFORM (continued)

CHALLENGES (continued)

Decision-Making Authority

A closely related theme that runs through the analysis of each option for reform is the allocation of a particular aspect of parental responsibility: decision-making authority. The existing regime of custody and access under the Divorce Act allows for either sole and joint custody orders. Under a sole custody arrangement, the custodial parent is vested with decision-making authority for the child, although there is an obligation to provide the access parent with information regarding the health, education and welfare of the child. Under a joint custody arrangement, both parents share decision-making authority.

The allocation of decision-making authority within a sole custody order has become the subject of considerable controversy, and is often one of the most contested issues between parents. Non custodial parents object to the way in which sole custody orders preclude their participation in major decisions regarding their children. One of the demands by these non-custodial parents is that the law be reformed to allow them to continue to participate in decision-making.

While the existing regime does allow parents to negotiate a joint-custody arrangement, in which decision-making authority is in fact shared, it does not require then to do so, and the courts have been reluctant to order joint custody against the wishes of the parents. Any move towards establishing a mandatory regime of joint custody, in which both parents share legal decision-making authority, has also been highly controversial.

A move away from the existing regime of custody and access, in which the custodial parent is vested with decision-making authority over the child, would have to carefully address the allocation of decision-making authority. The movement towards a shared parenting scheme is one largely motivated by the desire to give non-residential parents greater ability to participate in parenting decisions. But, this requirement for shared decision-making authority is what makes this option for reform controversial, in the same way as demands for mandatory joint custody have been controversial in the past.

Even if some consensus was reached on a move towards some shared parenting responsibility, any new laws would need to carefully articulate the nature of shared legal decision-making authority. For example, would shared decision-making require that parents consult each other on all decisions or just major decisions? If the latter, which ones? Typically, parents identify decisions related to medical issues, education and religion as being major decisions. A shared parenting regime could require shared decision-making on these three issues.

Questions would still remain, though, about everyday decision-making. A parent with whom the child is living would need to be vested with day-to-day decision-making authority, but there would need to be limits on this authority. What kinds of decisions need to be reached jointly? What kinds of decisions could be reached independently?

Even in a neutral parenting responsibility model, careful attention would need to be given to the allocation of decision-making authority. This authority would have to be explicitly vested by way of an agreement or court order. These agreements or orders would need to be very specific about the extent to which decision-making authority was vested in one or both parents, and the way in which this decision-making authority was to be shared, if at all.

Further, any model in which some degree of shared decision-making authority was either assumed or possible through agreement or court order, attention would need to be directed to the circumstances in which shared decision-making authority would be inappropriate. In particular, how would family violence, high conflict or inadequate parenting affect the allocation of decision-making authority?

Decision-making authority has become one of the most intractable issues in designing a scheme for the resolution of parenting disputes.

Ultimately, the choice of model will require a choice among three fundamentally different ways of approaching the allocation of decision-making authority, particularly in relation to major decisions. In a custody and access regime, major decision-making authority goes to the custodial parent. In a parenting responsibility regime, all decision-making authority would be allocated between the parents according to the best interests of the child. In a shared parenting regime, the parents would share major decision-making authority, unless there is some demonstrated reason to limit it. In examining the three options for reform, this paper examines, more specifically, the relative advantages and disadvantages of these very different ways of approaching and structuring the allocation of decision-making authority within the Divorce Act.

Residence and Contact

Any option for reform must also address the crucial issue of the allocation of a child’s residence time. A theme that runs through the analysis of the three options for reform is how the law can best set out how this residential time is to be allocated, in a manner that promotes children’s best interests, including their need for stability, physical care and ongoing relationships with both parents.

Residence

Parents with any type of parenting regime must ultimately decide where a child should live. In the current custody and access regime, the child lives with the parent awarded custody. In a joint custody arrangement, residence may be shared, but more frequently it is only decision-making authority that is shared. Typically, the residential schedule in a joint custody arrangement closely approximates that of a sole custody arrangement, with the child residing most of the time with one parent, and visiting the other parent on weekends and holidays. It is not clear that this allocation of a child’s primary residence is the major focus of the criticisms directed towards the current regime. Rather, the criticism typically focuses more on the allocation of decision-making authority and contact. The demand by access parents for greater involvement in their children’s lives is sometimes a demand for equal residence, but is more frequently a demand for greater participation in decision-making and more liberal access. As a result, it is not clear that the objectives for reform should actually include changing the way in which residence is allocated.

However, a move away from the current regime of custody and access will continue to require parents to decide about the child’s residence. If residence is no longer decided on the basis of custody, then a parenting regime must have some means for determining it. New kinds of parenting orders are required that can specifically cover this dimension of parental responsibility. In a neutral parenting regime, no assumptions are to be made about the kind of residential arrangement that is in children’s best interests, but rather, those interests must be determined on a case-by-case basis.

A shared parenting regime, although involving the assumption that it is generally in the best interests of children for both parents to be involved in the lives of the children, does not necessarily presuppose that residence should be shared. Although there is not always consensus on this point, most jurisdictions that have adopted the language or spirit of shared parenting do not require that a child’s residence be shared between parents. Rather, as is discussed in greater detail below, each of these jurisdictions allows a child’s residence to be allocated to either or both parents. Since there is no requirement that residence be shared, even a shared parenting regime, then, must establish criteria for allocating this aspect of parental responsibility, and deciding where a child will live.

The choice between the options for reform does not significantly revolve around the allocation of a child’s residence. While deciding where a child is to live must be included within any parenting regime, and is, therefore, a theme that runs through the discussion of each option for reform, it is not at all clear that the three options for reform conceptualize this issue in vastly different ways.

Contact

Any reform to the law of custody and access must address the contentious issue of access or contact between a child and the parent with whom the child does not live. One of the guiding principles for reform is to recognize that children benefit from the opportunity to develop and maintain meaningful relationships with both parents, when it is safe and positive to do so. The issue for reform is how this principle is best reflected in legislation.

In the past, access was assumed to be the right of the parent. More recently, there has been a shift in the understanding of contact, focussing on the benefits to the children of meaningful relationships with their parents. Sometimes this contact is expressed as a right of the child. For example, Article 9(3) of the United Nations Convention on the Rights of the Child establishes a duty on states to respect "the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interest." 12 Others resist this rights-based language, framing contact in welfare language—that is, an important component of the best interests of the child.

The Divorce Act includes the principle of maximum contact. Section 16(10) provides that the court "shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child." Accordingly, the Act provides that the courts must take into account the "the willingness of the person for whom custody is sought to facilitate such contact." The Supreme Court of Canada has held, however, that this principle of maximum contact "is not an unbridled objective and must be curtailed wherever the welfare of the child requires it." 13 The Court has emphasized that access is to be determined according to the best interests of the child. While those best interests generally require a continued relationship with both parents, the right of access must be approached from the point of view of the child. Whenever the relationship to the non-custodial parent conflicts with the best interests of the child, the promotion of the child’s best interests must take priority over the desires and interests of the parent.14

The question for reform is how to best promote the general principle of maintaining meaningful parent-child relationships, while ensuring that the best interests of children are protected. Some jurisdictions have attempted to promote the policy of frequent and continuing contact by including a presumption in favour of contact in their legislation,15 while others have expressed contact as a right of the child.16 The difficulty that has arisen, however, is balancing this presumption or right with other countervailing interests of children. In at least some jurisdictions that have adopted a presumption in favour of contact, commentators have argued that the important objective of protecting children from violence, conflict and abuse has been compromised.17

Each option for reform faces the challenge of attempting to achieve an appropriate balance between promoting meaningful relationships and protecting children from harm. Should the Divorce Act include a general principle in favour of contact? If so, how should this principle be framed? As a presumption? As general policy statement? As part of the best interests test? Under the existing regime of custody and access, should the friendly parent rule be retained or revised? In a regime of parental responsibility, how would a child’s residential time be allocated, and, particularly, what criteria would be used to determined a non-residential parent’s time with a child? Similarly, in a regime of shared parenting, what principles and criteria would be used to allocate a child’s residential time with their non-residential parent?

While each option for reform must structure an approach to access or contact, there may be some significant differences between the options for reform. A neutral parenting regime, for example, might be difficult to reconcile with a presumption or right of contact. This is a parenting regime that does not assume that any particular allocation of parenting responsibility is always in the best interests of the child, but, rather, insists that these decisions be made according to the best interests of the child on a case-by-case basis. The challenge here would be to identify the criteria by which these decisions regarding contact could and should be made in each case.

By contrast, a shared parenting regime assumes that shared parenting responsibilities between parents and continuing and frequent contact are generally in a child’s best interests. The challenge here is twofold. Would a presumption in favour of contact violate the guiding principle that no one model of parenting will be ideal for all children, and accordingly, reject the use of judicial presumptions? How would an approach that assumes that contact is generally in the best interests of the child protect children from the harm that could result from contact in circumstances of violence, high conflict and inadequate parenting?

In reviewing each option for reform, the paper considers the particular ways in which rules regarding contact might be designed to balance the promotion of meaningful parent-child relationships, and the need to protect children from harm.

Family Violence, High Conflict and Inadequate Parenting

Another guiding principle for reform is the protection of children from violence, conflict and abuse. The literature on the impact of separation and divorce on children reports the harmful effects of exposure to violence, conflict and abuse. Any reform to the law of custody and access must, therefore, address the question of how the law should deal with high-conflict families, families with a history of violence, and families with inadequate parenting. Much of the impetus for reform of child custody and access laws in recent years has been the desire to reduce parental conflict and encourage parental cooperation during separation and divorce. But, as legal and child development experts now agree, there are a range of families for whom such cooperation is, at best, elusive and, at worst, a dangerous ideal. Families characterized by high conflict, violence or inadequate parenting or all three cannot be seen through the same lens of cooperation. Rather, specific approaches will need to be designed to deal with these situations.

Violence

The family justice system has been increasingly criticized for its failure to take family violence seriously in the resolution of custody and access disputes.18 Currently, the Divorce Act includes no reference to the relevance of violence in the resolution of custody and access disputes, and judicial approaches to the relevance of violence have been inconsistent.19

However, the literature on the impact of separation and divorce on children has demonstrated the harmful effects of exposure to violence.20 Witnessing interparental violence can be a terrifying experience for children, and can produce a range of post-traumatic stress disorders. Research began to show more behavioural problems, anxiety and depression, and lower self-esteem among children who witness interparental violence.21

The Special Joint Committee stated that there was general agreement that children are negatively affected by exposure to violence:

Children who witness violence between their parents are affected negatively. Where there is violence between the parents, the risk of escalation at the time of separation is high and poses real safety concerns for both parent and child. The presence or risk of violence is unarguably relevant to decisions about parenting arrangements.22

Despite this statement, the Special Joint Committee did not make any specific recommendations in relation to violence.23 It did observe, however, that "most of the witnesses advocated amendments to the Divorce Act and provincial family law to make domestic violence expressly relevant to custody/access decisions and a matter that must be considered by the judge".24

Going further than the Special Joint Committee, the federal government in its response stated that "it is important to send a message that all aspects of the family law system must take into account incidents of family violence involving the child or member of the child’s family. Ensuring the safety of all parties involved must be the guiding principle." 25

It is, therefore, crucially important that any reform to the law of custody and access specifically address this issue of violence. The question, then, to be addressed in designing and evaluating the three options for reform is how the presence or risk of violence ought to be taken into account in resolving parenting disputes, and how the Divorce Act might be amended to do so.

Evidentiary Requirements

Any reform option that adopted specific rules or presumptions to deal with the issue of family violence would have to consider the degree of proof of family violence that would be required. Differing degrees of proof of violence are required among the U.S. jurisdictions that have adopted these rules. As the American Law Institute has observed "evidentiary standards with respect to proof of abuse vary widely." 26 In some states, the courts consider "any evidence of domestic violence." 27 Others provide that a finding of domestic violence "shall be supported by credible evidence" 28 or "clear and convincing evidence." 29 The Ohio legislation says that the court must determine if a parent has been convicted or has plead guilty to a charge of domestic violence in order to activate the presumption against shared parenting, but also allows the court to take into account "any history of or potential for… domestic violence" in determining the appropriateness of shared parenting.30

The Special Joint Committee recommended that only a "proven history of family violence" be taken into account as a factor when determining the best interests of the child. It is not at all clear what standard of proof would be required for such a "proven history." 31 As the government recognizes in its response to the Committee’s report, "a requirement for proof of conviction would be a very high standard for family law, especially in spousal abuse cases, where the abusive conduct often occurs in private and where the victims, for a variety of reasons, tend to hide or deny the abuse." 32

The Divorce Act could include a specific statement of the evidentiary requirement for family violence, stating, for example, that a finding of family violence shall be supported by credible evidence. This would ensure that more than an unsupported assertion of violence by one spouse would be required before a presumption or principle would be activated. Or the Act could specifically mention that the standard of proof is a civil standard, requiring that a finding of family violence be established on a balance of probabilities. Although it is well established that this is the standard of proof under the Divorce Act, a specific reference might also help address the concerns that a mere assertion of family violence would suffice to activate the presumptions or principles against violence.