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)

Divorce-Related Support Services

Another guiding principle for reform is the promotion of more cooperative, non-adversarial approaches to resolving parenting disputes. Much attention has been given in recent years to a range of support services for divorcing parents that would help reduce conflict. These services, ranging from mediation and arbitration, to parenting education and custody assessments, have become increasingly important in the resolution of custodial disputes. The Divorce Act currently provides that a lawyer is under a duty to inform his or her client of the availability of mediation services.58 There are no other references to support services for divorcing parents within the Act.59 The question that needs to be answered in relation to any reform is whether the law should be amended to include specific references to these support services, and if so, how? This issue continues the theme raised in the section on private choices and parenting in so far as it too is concerned with the extent to which the Divorce Act can encourage parents to cooperate in the resolution of their parenting disputes.

Parenting Education

Parenting education has become increasingly popular in many jurisdictions.60 In many American jurisdictions, the court may require parents to attend a parenting education program.61 In Alberta, mandatory parenting education programs have been implemented, which parents are required to attend before they can proceed with an application for divorce. This kind of mandatory parenting education is endorsed by a broad range of experts. The National Family Law Section of the Canadian Bar Association (CBA), for example, endorses the Alberta model, and "recommends that separating spouses be required to attend a government-funded parental education program before commencing the litigation process in relation to custody and access."

The Special Joint Committee similarly recommended that all parents seeking parenting orders be required to participate in a parenting education program. These programs would be designed to educate parents about the post-separation reactions of parents and children, children’s developmental needs at different ages, the benefits of cooperative parenting after divorce, parental rights and responsibilities, and the availability and benefits of mediation and other forms of dispute resolution. Although this recommendation is obviously closely tied to the Committee’s overall recommendations to abandon the language of custody and access and to implement a system of shared parenting and parenting plans, it would nevertheless be possible to follow a similar recommendation in the context of the existing custody and access regime.

Many child development experts emphasize the value of parenting education in resolving custodial disputes. Rhonda Freeman argues, for example, that "[e]ducational interventions, introduced early in the separation, can be a useful way of supporting parents to make wise decisions about caring for their children in the post-divorce family."62 According to Freeman, research suggests that "…for some parents, single-session interviews or providing educational materials was sufficient to prompt limited change. To maximize the likelihood of effectiveness, educational interventions would target variables known to mediate children’s adjustment to divorce (e.g. parent conflict, coparenting, grieving, parent/child relationships) and skill building (i.e. negotiation, single parenting)."63

Although practices vary widely across the country, information sessions are increasingly becoming mandatory at the beginning of divorce applications. And the content of these sessions varies widely: some provide an overview of the law and process of divorce, while others place more emphasis on the impact of divorce on children.

While there is an emerging consensus that parenting education is a useful and constructive resource in the resolution of the issues between separating and divorcing parents, the question that remains is whether the Divorce Act should be amended to specifically recognize or mandate such parenting education sessions.

Moving towards a regime that encourages or requires separating and divorcing parents to attend parenting education courses raises questions of jurisdiction and funding. First, who would be responsible for making the courses available? The current practice varies, with the initiatives involving partnerships among family courts, the Department of Justice Canada, provincial attorneys general and provincial child and family services departments. If these programs were to be court-based, or court-associated, it would fall within the jurisdiction of the provincial governments, and would, therefore, have resource implications for the provinces.

Secondly, how would the programs be funded? Many of the existing programs are publicly funded. The CBA recommended that the programs be government-funded. There is a strong argument to be made for government funding, particularly if these programs were mandatory. The additional cost of divorce for low income families is not insignificant. At a minimum, some provision should be made to subsidize the costs of parenting educating programs for low-income families, with the possibility of sliding scale fees for participants. There would, then, be serious resources implications, and again, it would be important to determine which level of government would bear the costs.

Thirdly, some attention would need to be directed to establishing national standards for these programs, in terms of both course content and the qualifications of individuals conducting the programs.

Including specific references to the needs of children who have experienced family violence, high conflict or inadequate parenting will also help advance the general educative objectives of legislative reform, giving direction and guidance to judges, lawyers and other individuals within the family justice system.

Mediation and Primary Dispute Resolution

Mediation is a dispute resolution procedure in which a neutral third party helps disputing parties come to their own agreement. Some experts and commentators have suggested that greater reliance should be placed on mediation in the resolution of family law disputes. Following the increasing emphasis on mediation in civil litigation, some suggest that mediation should be mandatory in family law as well. The Special Joint Committee, for example, recommended that divorcing parents be encouraged to attend at least one mediation session, for the specific purpose of helping them to develop a parenting plan.64

The vast majority of family law disputes—including disputes about custody and access—are resolved without court intervention, through various forms of dispute resolution.65 The administration of family law already places enormous emphasis on the settling of disputes by building many steps into the system. Fewer than five percent of family law disputes actually proceed to trial. Mediation, legal aid settlement conferences and various forms of court-managed settlement conferences are already extensively used. A range of voluntary mediation services is available across the country to help separating and divorcing parents deal with their custody and access disputes.66

Although mediation is an increasingly popular mechanism for resolving family-law disputes, many remain cautious about the role that mediation should be expected to play in these disputes. Various government studies into the role of mediation in family law disputes have concluded that, although mediation should be available, it ought not to be mandatory.67 Serious concerns have also been expressed about the inappropriateness of mediation when there has been a history of spousal violence.

The only reference to mediation in the Divorce Act is section 9(2), which requires that lawyers advise their clients of the availability of mediation services. Several provinces include references to mediation and conciliation services in their legislation. For example, in both Ontario and Newfoundland, the legislative schemes allow a court to appoint a mediator in cases of custody and access, at the request of the parties.68 In Saskatchewan, the Children’s Law Act allows a court to appoint a mediator at the request of the applicant or respondent.69 The New Brunswick legislation allows a court to make an order requiring that conciliation services be made available to the parties. Only in the Prince Edward Island legislation is the court given the authority to order the parties to go to mediation.70

Other jurisdictions have gone much further, placing an increased emphasis on mediation and primary dispute resolution as a preferred means of dispute resolution, and incorporating these principles into their legislation. A question that needs to be addressed in any reform to the law of custody and access is the extent to which the legislation should specifically address the role of mediation and alternative dispute resolution.

Including some reference to mediation and other non-judicial forms of dispute resolution in the Divorce Act, without making mediation mandatory, is consistent with the guiding principles for reform, which include the promotion of non-adversarial dispute resolution mechanisms and retaining court hearings as mechanisms of last resort. Encouraging mediation, without making it mandatory is also consistent with the general policy direction articulated by the federal government: reforming the family law system to better recognize the diverse requirements for dispute resolution, and the importance of developing a range of services to respond to these diverse needs.

In reviewing each option for reform, this paper will consider if and how a reference to these divorce-related services could be incorporated into the Divorce Act.

Reasonable Expectations of Legal Change

A final and crucial theme involves the question of what legal reform itself can realistically be expected to accomplish. The objectives of the reform to reduce parental conflict and increase cooperation, particularly by encouraging attitudinal change, although laudable, present a tall order for legislative reform. A central issue that needs to be addressed is the extent to which law reform—in general and the three options for reform under consideration here in particular—can be expected to advance or achieve these objectives.

Other jurisdictions that have implemented significant reforms to the law of custody and access have also set out to change attitudes and behaviors. Jurisdictions that have replaced the language of custody and access with notions of shared or joint parenting or parenting plans or both had all hoped to bring about a fundamental change in the approach that parents take towards their children during separation and divorce. The objectives have been to reduce parental conflict and promote a more cooperative approach to parenting, in which both parents can continue to play an active role in their children’s lives following separation and divorce.

It is not at all clear that these objectives have been realized. While the developments in these other jurisdictions will be discussed more extensively below, research on the impact of reforms suggest that, in at least some jurisdictions, there has not been a significant reduction in conflict between separating and divorcing parents. As one commentator has written, the reforms to the U.K. law "ha[ve] not succeeded in taking the heat out of disputes around children on divorce despite its introduction of a concept of ‘parental responsibility’ which would endure beyond the end of the marriage."71 Rather, several jurisdictions have experienced an increase in litigation rates following the enactment of these reforms.72

Many reasons have been offered for this increase in litigation rates. Any change to a legal regime is likely to produce new ambiguities and confusions about the precise nature of the legal rules that will require judicial clarification. However, another frequently cited explanation is the unrealistic expectations created by the reforms. Contact parents (the new language for parents with access to their children) have often misinterpreted the reforms as giving them more rights, which they are intent on asserting. Many professionals in the family justice system in these jurisdictions have commented on the "increased bitterness" and "unrealized hopes" of these parents, which are, in turn, fueling more litigation.73

At the same time, these jurisdictions have not yet witnessed a significant change in the way in which parental responsibility is allocated between the parents. Research into the impact of the reforms in the U.K., Australia and Washington state has revealed that the allocation of parental responsibility remains largely unchanged from its pre-reform allocation.74 These jurisdictions have all moved away from the language of custody and access, replacing it with notions of parental responsibility or parenting plans or both.

The reforms, then, seem to have increased expectations on the one hand, but not significantly altered the allocation of parental responsibility. And the increased expectations, at least in some contexts, have led not to more cooperative parenting but, rather, to more contested cases and litigation.

A legal regime could be set up that emphasizes the importance of cooperation, and encourages parents to resolve their parenting disputes in as non-adversarial a manner as possible. The law could be reformed so that it is not itself an obstacle to the co-operative resolution of parenting disputes. And it may be that moving away from the language of custody and access or encouraging the use of mediation and other primary dispute resolution techniques rather than litigation could help ensure that the law facilitates rather than obstructs the cooperative resolution of parenting disputes.

There is also an important symbolic role for law reform. By exhortation and standard setting, the law can send powerful messages about the process of separation and divorce—the importance of parental cooperation, of non-adversarial dispute resolution and of ongoing parental involvement—which may have some impact on the attitudes that parents bring to the resolution of their parenting disputes. Richard Chisholme has suggested in relation to the Australian reforms that the greatest potential for the law to bring about the desired attitudinal changes may be in terms of how the new provisions "frame the issues to be considered by parents and others involved in children’s cases."75 The new provisions, with their emphasis on cooperation and ongoing involvement, may frame the issues in a new way, and allow parents and professionals to approach the disputes through a new lens.

However, as Chisholme argued, and as subsequent research has begun to substantiate, the extent to which law reform can bring about such attitudinal change will depend in large part upon the attitudes of lawyers and other professionals. Few separating and divorcing parents sit down to read the law themselves. Rather, they will rely on the representations of their lawyers and other divorce professionals.

The major variable in determining the success of the Act in achieving its primary objectives will be the enthusiasm, open-mindedness and skill of those who work most directly with parents, notably lawyers, registrars, and community and court based counsellors and mediators.

An important factor, then, in the extent to which law reform can bring about the desired attitudinal change will be the attitudes of divorce professionals. And many of these professionals are already active proponents of cooperative approaches to the resolution of parenting disputes.

It is also important to recognize that no law can force people to cooperate. A regime that emphasizes cooperation and the continued involvement of both parents in the lives of their children may work well for some separating and divorcing parents, who are able to work collaboratively notwithstanding their differences. But, no such regime can force individuals who are completely estranged to get along with one another. Neale and Smart have suggested the following, in relation to the U.K. reforms:

Family law seems to assume that co-parenting will foster collaborative relationships but our evidence suggests that if there is a causal link at all, it operates only in the other direction: collaborative, caring relationships may support the development of co-parenting arrangements and help to sustain them over time.76

In the context of separation and divorce, it is important that the law not entirely lose sight of the very real fact that the parents’ relationship has broken down. Couples separate because they no longer get along. And the process of separation is frequently accompanied by a range of emotions—denial, anger, guilt and depression—that only further antagonize the dissolving relationship. Many couples can move beyond their emotional turmoil, and develop cooperative parenting relationships. Some will do it on their own, and others will need assistance and encouragement, through lawyers, counsellors or mediators. Many couples cannot, and no amount of encouragement is going to make a difference to high conflict families with individual parents intent on fighting. There is a limit to what law reform can realistically be expected to accomplish. A legal regime can encourage separating parents to cooperate, but it cannot ultimately coerce them to do so.

There may be an important distinction between encouraging a non-adversarial approach to the resolution of parenting disputes, and promoting a cooperative, co-parenting relationship. The legal system can be designed to discourage adversarial approaches to dispute resolution. Parents can be encouraged through a range of divorce-related services to try to resolve their disputes without going to court. And at least some changes to custody law and practice may help reduce the reliance on formal adversarial proceedings in court to resolve parenting disputes. However, it is much less clear that a legal system can be designed to encourage cooperative parenting relationships after divorce. As Maccoby and Mnookin have observed "the co-parental relationship between divorced parents is something that needs to be constructed, not something that can simply be carried over from pre-separation patterns."77 Their research on the reforms in California divorce law, explicitly authorizing joint custody, found that while most divorcing parents were able to resolve their parenting arrangements through non-adversarial means, "most divorcing parents are unable to develop cooperative co-parental relationships."78

Law reform is also unlikely to change the way in which couples structure their lives and their child-care arrangements during their relationships, with the latter continuing to be one of the most important determinants in the restructuring of the parenting relationship after separation. Maccoby and Mnookin have long argued that there are real limits to the role law can play in changing the patterns of post-divorce behaviour.79 The way in which parents structure their child care during the relationship continues to play a critical role in the allocation of parenting responsibility after divorce. Stability and continuity from the children’s perspective, as well as basic social expectations on the part of the parents, are such that parents themselves are likely to replicate pre-divorce child-care arrangements.

Unless family law can modify the pre-divorce roles, then it is doubtful that it can have a much greater impact on the post-divorce division of parental responsibility: most divorcing couples would still typically end up allocating primary child-rearing responsibility to mothers.80

Maccoby and Mnookin recognize that the legal system can make parenting relationships worse, by emphasizing adversarial dispute resolution. They, therefore, support efforts to "dampen the adversarial nature of traditional divorce proceedings."81 However, they question the extent to which family law can bring about a significant change in "the way most parents allocate basic responsibility for day-to-day care, either before or after separation."82

Again, this is not intended as an argument against reform. It is rather an attempt to be realistic about what law reform can reasonably be expected to accomplish. A legal regime can set normative standards; it can attempt to send out a strong message about appropriate forms of behaviour. There is value in this symbolic role of law reform. But, law reform can also create unrealistic expectations that will, in turn, fuel the fires of conflict. And law reform cannot eliminate conflict for all separating and divorcing parents; nor can it transform the way in which couples structure their child-care arrangements during their relationship.

It will be important to keep these limitations in mind in evaluating each option for reform. Any consideration of the extent to which each option can advance the objectives for reform must be balanced with the recognition that no law reform may be able to realize all of these objectives.