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

2001-FCY-2E

OPTION ONE: CUSTODY AND ACCESS (continued)

BEST INTERESTS OF THE CHILD(continued)

Friendly Parent Rule

Section 16(10) of the Divorce Act, known as the friendly parent rule, sets out the principle that "a child… should have as much contact with each spouse as is consistent with the best interests of the child," and requires that the court take into account the willingness of each parent to facilitate contact between the child and the other parent. The provision reflects a general assumption that the needs and interests of a child following separation and divorce are best met when the child maintains significant contact with both parents.

The principle is controversial. Many commentators have argued that the friendly parent rule operates unfairly and dangerously in the context of family violence, when parents who fear abuse from the spouses may remain silent for fear of jeopardizing their chance of obtaining custody.182 Others argue that the provision attempts to promote an important principle of a child’s right to contact with both parents.

Some commentators have argued that the Divorce Act ought to contain a presumption of continued parental relationship. Miklas and Bala, for example, have argued that "there should be a presumption that it is in the best interests of the children to have frequent and predictable contact with both parents, on a schedule that accords with the child’s developmental needs, unless it can be demonstrated that such involvement poses a significant risk to the child’s physical or emotional well-being."183 As these authors describe it, a continued relationship would be a child’s right. Although it would be promoting a similar principle, it would be different from the current friendly parent rule insofar as it "places less of a ‘skew’ on the litigation and negotiation process, as it reduces the pressure on a parent to demonstrate willingness to facilitate access as a factor in a custody dispute."184

The Special Joint Committee was of the view that both arguments for and against the current friendly parent rule had merit, and recommended that "the principle of maximum contact be included in the list of criteria for determining the best interests of the child that the committee proposes be added to the Act. In this way, the principle of maximum contact would be considered by judges and parents and could be weighed against other important criteria related to the best interests of a child."185

There is considerable merit to the recommendations of the Special Joint Committee. In contrast to the position advocated by Miklas and Bala, this option is consistent with the "no presumption" principle recommended by the Special Joint Committee and endorsed by the federal government. Moreover, incorporating the general principle of contact within the list of best interest factors would allow the courts to balance competing factors. In this way, the facilitation of contact with the other parent would no longer be singled out but, rather, a child’s interest in contact with both parents would be taken into account and, as the Special Joint Committee observed, weighed against other important criteria. In particular, this would allow the courts to balance the principle of contact with other guiding principles, including the importance of protecting children against violence, conflict and abuse.

Alternatively, the Divorce Act could be amended to include a general statement of principle that encouraged ongoing relationships with both parents after divorce. This could be included in a general purpose section, or it could be included in a list of parenting responsibilities, as discussed in the next section. As a general statement, however, it would be important that the principle regarding contact be made subject to the best interests of the child. Otherwise, the principle might come to be plagued by the same problems as the current friendly parent rule. Moreover, the guiding principles make it clear that the best interests test must remain the cornerstone for reform, and specifically provide that the general principle of developing and maintaining relationships with both parents is subject to the qualifier of "when it is safe and positive to do so."

Assessment

While any such statutory list of factors arguably provides more direction to the court, such a listing also "invariably gives judges as much discretion and flexibility as the shorter statement of principle, since the factors are not prioritized, and since they are clearly stated not to be an exhaustive list, but only among the circumstances that the court shall consider."186 The American Law Institute recently observed that, "[I]n the last decade, most jurisdictions have attempted to make the best-interest test more concrete by specifying the criteria to consider in applying it. An all-inclusive itemization of the myriad factors that bear on a child’s best interests adds little determinacy, however, if the rule specifies no priorities among these facts."187 It is also important to note that in practice, there is little real significance to the differences among provincial, territorial and federal legislation, notwithstanding the considerable differences in the degree of detail provided.188

There is, therefore, little reason to believe that elaboration of the best interests of the child test will actually increase the predictability of the outcomes of child-custody disputes and, thereby, reduce litigation.

At a more general level, however, including a more specific list of factors may provide some guidance for parents who are attempting to restructure their parenting relationships without resorting to the courts. To the extent that the objectives of reform are educational and standard-setting, it would be helpful to direct parents’ attention to the particular factors that they ought to be taking into account when setting up their post-divorce parenting arrangements. Similarly, it may be helpful to elaborate the best interests of the child test to give guidance to the courts about the kinds of factors that ought to be taken into account and balanced in each case.

PARENTING RESPONSIBILITY

The current regime of custody has been criticized for its focus on parental rights in relation to their children, rather than focusing on parental responsibilities in relation to their children. Some have suggested that the idea of parental responsibility introduces a more child centered approach by directing attention towards children’s needs and parents’ responsibilities to fulfil those needs. While Options Two and Three explore the possibilities of designing legislative alternatives to the custody and access regime based on this idea of parental responsibilities, another option for reform would be to incorporate the idea of parental responsibilities into the existing custody and access regime. More specifically, the Divorce Act could be amended by incorporating a reference to and definition of parental responsibilities.

The National Family Law Section of the Canadian Bar Association, in its submission to the Special Joint Committee recommended that a description of parental responsibilities toward children be incorporated into the Divorce Act. More specifically, it recommended that s.16(5) of the Divorce Act state that, unless otherwise ordered by the court as in a child’s best interests, all parents have responsibilities toward their children which include:

Assessment

At a general level, adding such a list of parental responsibilities is intended to advance the educational and exhortative dimensions of reform. A list of parenting responsibilities may help direct parents’ attention to particular aspects of parenting, and may provide some guidance in their efforts to restructure their parenting relationships without resorting to the courts. The idea behind such a list is that it may help direct parents’ attention towards their children’s needs, and towards their own responsibilities to fulfil those needs.

But, incorporating such a list into the existing statutory framework may create a number of legal complications, and there is reason to be concerned about how well such a list would fit within the custody and access regime.

As recommended by the National Family Law Section of the CBA, the Divorce Act would state that all parents have these responsibilities toward their children, unless otherwise ordered by the court. While the list of parental responsibilities may seem innocuous, it would raise significant legal questions. For example, what would be the relationship between these parenting responsibilities and the rights and responsibilities of custody and access orders? Would the addition of this list of parenting responsibilities significantly alter the rights and responsibilities in a sole custody order? Would a sole custody order have to specifically allocate these parenting responsibilities to the custodial parent? For example, among the suggested list of parental responsibilities is consulting with the other parent on major issues of health, education, religion and welfare. Would this responsibility restrict the authority otherwise vested in the custodial parent? Would a court specifically have to allocate this authority to the custodial parent?

These are not incidental questions, but go to the heart of the allocation of parental authority within a custody and access regime. The general statement that all parents have these responsibilities towards their children is an effort to move towards a new kind of parenting regime without actually doing so. In other words, it attempts to advance some of the objectives of a parenting responsibility regime that emphasizes continuing and shared responsibilities towards children, without actually abandoning the language of custody and access. There is, therefore, a question whether a list of parental responsibilities is consistent with and can be made to fit within the existing regime of custody and access. It is important to emphasize that this is not an argument against including a list of parental responsibilities within any reform option but, simply, highlights the problems of doing so within a regime that continues to be based on custody and access.

Much like elaborating on the best interests of the child test, adding a list of parental responsibilities is, thus, not likely to result in more predictable outcomes, thereby reducing litigation. Rather, it might be expected to increase litigation by introducing more uncertainty into the custody and access regime. Beyond having a general educational function, it remains unclear what such a list of parental responsibility would be expected to accomplish, and how the courts would be expected to take this list of factors into account when determining the best interests of the child and awarding custody and access.

VIOLENCE, HIGH CONFLICT AND INADEQUATE PARENTING

One of the challenges that faces any reform to the law of custody and access is the protection of children from violence, conflict and abuse. The current Divorce Act does not include any specific reference to violence, high conflict or inadequate parenting in relation to the resolution of custody and access disputes. This section of the paper examines how the Divorce Act could be reformed to include a reference to the relevance of violence, high conflict, and inadequate parenting, within the existing custody and access regime.

Violence

The question to be addressed 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. The following discussion reviews two options for reform: (1) including family violence as a factor in the best interests of the child test; and (2) including specific provisions setting out how courts should deal with family violence. It then considers the inclusion of conditions of access, and the implications of family violence for parenting plans and divorce services.

It should be noted that any reform that specifically addresses the relevance of family violence to a custody and access determination could include a reference to the evidentiary requirements for family violence (such as credible evidence) as discussed above.190

As a Factor in the Best Interests of the Child Test

The Divorce Act could be amended to include a reference to domestic violence within the elaboration of the best interests of the child, as suggested by the National Family Section of the CBA, and Special Joint Committee.

A number of jurisdictions have taken this approach, and included violence and abuse as factors to be taken into account when determining the best interests of the child. The Australian Family Law Act, for example, includes the following as factors in the best interests of the child test:

  • (g) the need to protect the child from physical or psychological harm caused, or that may be caused, by
    • (1) being subject or exposed to abuse, ill-treatment, violence or other behaviour; or
    • (2) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person…;
  • (i)any family violence involving the child or a member of the child’s family;
  • (j)any family violence order that applies to the child or a member of the child’s family".191

Similarly, the Maine Domestic Relations Act includes the following:

  • (L)The existence of domestic abuse between the parents, in the past or currently, and how that abuse affects:
    • (1) the child emotionally; and
    • (2) the safety of the child;
  • (M) The existence of any history of child abuse by a parent;
  • (N) All other factors having a reasonable bearing on the physical and psychological well-being of the child;192

New Jersey, Michigan, Montana, Pennsylvania, Rhode Island, Vermont and Wyoming also provide that the courts shall take domestic violence into account when determining the best interests of the child or in making a custody award or both. Several states have further provided that a finding of domestic violence should be the primary factor in determining the best interests of the child and the awarding of custody.193

Section 31(3) of the Newfoundland Children’s Law Act specifically addresses the issue of violence:

In assessing a person’s ability to act as parent, the court shall consider whether the person has ever acted in a violent manner towards:

  • (a) his or her spouse or child;
  • (b) his or her child’s parent; or
  • (c) another member of the household,

otherwise a person’s past conduct shall only be considered if the court thinks that it is relevant to the person’s ability to act as a parent.194

This provision could be used as a model for incorporating a reference to violence into the definition of the best interests of the child in the Divorce Act.

Including violence as a factor that should be taken into account in the best-interests test would be an important improvement over the current regime. But, the disadvantage with this approach is that it does not specify how violence should be taken into account.