PART 1: CUSTODY AND ACCESS

A. FAMILIES TODAY

Over the course of a child's lifetime, his or her family may form, break up and re-form.  The initial family unit may consist of one or both parents and one or more children.  Often, grandparents, aunts, uncles or other relatives form an extended family to care for the child.  Laws and services directed at the care and upbringing of children seek to recognize and accommodate the diversity of family forms in which children live.

Children are society's future.  Their health and well-being should be a primary concern.  Policy-makers need to consider how to respond to research and experience that demonstrates children's well-being can be harmed by separation and divorce, and the restructuring of the family.[4]  Problems faced by children during family restructuring seem to be increasing.  Social change has resulted in an increase in single-parent families and blended families and the potential for children to face multiple family restructurings.[5]

Recent surveys of family life have revealed four main trends.  First, most children are born into two-parent families, but an increasing number of these parents are not married.  Second, children are increasingly experiencing life in a single-parent family and doing so at an earlier age than previously.  For example, an analysis of data from the National Longitudinal Survey of Children and Youth (NLSCY) shows that one in four children born in the early 1970s saw their parents separate by age fifteen.  Just over ten years later, one out of four children born in the early 1980s had experienced their parents' separation by age ten.  By the late 1980s, almost one in four children born in 1987 to 1988 saw their parents separate by age six.[6]  Third, children born to common-law couples face a greater risk of experiencing parental separation than do children whose parents are married.[7]  Fourth, more children are subject to multiple family structures.  This is so because children are younger at the time of the first family separation and their parents are more likely to re-couple (perhaps more than once) with other adults, some of whom will also have children from another relationship.

An increasing number of Canadian children live with only one parent, while the other parent lives in another family structure.  Many children have parents who are not married.  A recent analysis of NLSCY data shows that in the early 1960s over ninety percent of all births were to two married parents who had never cohabited before marriage.  In contrast, by 1993–94, less than forty percent of all births were to married parents who had never cohabited before marriage, and twenty percent of children were born to unmarried parents.  This trend is strongest in Quebec, where only twenty-three percent of births were to parents who married without first living together, and forty-three percent of births were to common-law couples.[8]

Children, regardless of their family structure, need stable and nurturing environments, protection from negative influences such as conflict, poverty and violence, and positive relationships with at least one adult.[9]  Problems faced by a family prior to separation, such as poverty or ineffective parenting, may often be aggravated by divorce or separation.  Parents who are emotionally or financially challenged by the separation or divorce may feel bewildered, angry, victimized or diminished by the changes in the family structure.  Children may feel that they are responsible for the family breakdown, isolated from previous support systems and emotionally depressed.

The NLSCY shows that children at risk (e.g., low socio-economic status, low parental education, family dysfunction, prenatal problems, and children of single parents) have fewer behavioural problems when raised with positive and consistent parenting.  Parenting style, particularly a hostile parenting style, has a more negative effect on children's behaviour than other factors such as income or family structure.[10]

B. THE FAMILY LAW COMMITTEE PROJECT

The Deputy Ministers Responsible for Justice directed the Family Law Committee to make custody and access issues a priority, both as a matter of family law reform and as an integrated justice services project.  The project was given the following mandate:

In December 1999, the then Ministers Responsible for Justice reviewed and approved the work plan for the project, the plans to hold public consultations and a set of principles to guide family law reform.  As well, the federal Minister, with the concurrence of her provincial and territorial colleagues, also agreed to refer the recommendations of the Special Joint Committee on Child Custody and Access[11]to the Family Law Committee to include in its review.

In March 2001, a consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada,[12] was released and the public was invited to respond both in writing and through workshops that were held from April to June 2001 in every province and territory.  The issues identified and discussed in Putting Children's Interests First reflected concerns that had been raised nationally on custody, access and child support.  The consultations provided a wide range of comments on these issues.  A review of the report from the consultations[13] reveals a general consensus on certain broad themes, including:

While a diversity of views was expressed on most issues, the workshop format encouraged participants to listen to and learn from the perspectives of different people concerned about children and families experiencing divorce and separation.  Workshop participants, in total about 750 people, represented social service, education, enforcement, legal community, child welfare, health, women's interest groups, men's interest groups, grandparents' groups, non-custodial parents' groups, and Aboriginal organizations.  As well, there were youth workshops.

The Family Law Committee also reviewed the recommendations of the Special Joint Committee on Child Custody and Access.  In its report, For the Sake of the Children, the Committee made forty-eight recommendations on custody, access and child support, including legal and service issues.[14]  The Committee's recommendations concerning the issues addressed in this report are discussed in the relevant sections of this report.

The Family Law Committee's work on the custody and access project was informed by research on various topics conducted before and during the life of the project by the federal government, and through other consultations, research and reviews conducted at the provincial and territorial level.

For example, Saskatchewan began a review of service and legislative issues with the March 1998 release of Promoting Resiliency in Children and Families:  A Discussion Paper on the Effects of Separation and Divorce.[15]  The paper was available for public response and was discussed in five multi-sectoral workshops.  The results led to development of another paper, Promoting Resiliency in Children and Families:  Identifying Priorities,[16]released in fall 2000 for public discussion and a further round of multi-sectoral workshops.  Participants in both workshop sessions have provided feedback that helped direct provincial approaches to participating in the national Putting Children's Interests First:  Custody, Access and Child Support in Canada consultations.[17]

In Alberta, the Unified Family Court Task Force submitted a report recommending a single court to deal with family matters.[18]  The Government of Alberta has also initiated the Alberta Family Law Reform Project.  Public consultations on family law reform began in February and March 2002.

On April 29, 2002, Children Come First:  A Report to Parliament on the Provisions and Operation of the Federal Child Support Guidelines was tabled in the House of Commons by the federal Minister of Justice.[19]  The Report to Parliament contains the recommendations for amendments to the Federal Child Support Guidelines found in Part 2 of this report entitled Child Support.  The federal, provincial and territorial governments worked together through the Family Law Committee to develop these recommendations.  The Report to Parliament also provides information on how governments worked together to implement the guidelines across Canada through the delivery of family justice services, carrying out research projects, conducting public awareness and information campaigns for parents, lawyers and judges and improving the enforcement of support orders.

The Report to Parliament also outlines the steps that governments have taken to work together to improve the enforcement of support obligations.  For the family law justice system to work, family support obligations must be enforceable.  In Canada, the provinces and territories are responsible for the enforcement of family support orders.  However, over the past six years, the Government of Canada has taken a more active role in enforcement.

The federal government has concentrated its enforcement efforts in the areas of co-ordination and enhanced federal enforcement tools.  It has established a federal enforcement policy unit, increased project-based funding, and launched a comprehensive program of research on enforcement and compliance issues.  The results of some of the research are expected this year, and they will be extremely valuable in assessing ongoing efforts and, therefore, in planning for the future.

The scope of the custody and access and child support project did not include assessment of support enforcement policy or program issues.  For more information about federal/provincial/territorial work on enforcement of support, the reader is referred to the Report to Parliament.

The Deputy Ministers Responsible for Justice have asked that all policy work include discussion of diversity issues.  The Family Law Committee recognizes that its review has not yet sufficiently addressed diversity and Aboriginal issues with respect to family law and family law services.  More work is required to meet this expectation.  Although Aboriginal workshops were held in Ottawa in June 2001,[20] and research was conducted in Nunavut,[21] the Family Law Committee suggests that more dialogue about the needs of specific communities is necessary.

Recommendation 1

It is recommended that continued dialogue, research and development be undertaken to address diversity and Aboriginal issues with respect to family law.

It is the hope of the Family Law Committee that distribution of the report from the national consultations, availability of research conducted for this project, and this report itself will continue to foster dialogue, discussion and the development of consensus on the important issues addressed in this report.

C. PRINCIPLES AND OBJECTIVES

As mentioned above, Ministers Responsible for Justice approved a set of guiding principles for family law reform in December 1999.  These principles were included in the text of the consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada,[22] and during the consultations there appeared to be agreement with these principles.  The Family Law Committee proposes that these principles continue to guide the development of a longer term, collaborative, inter-jurisdictional response to family law reform and family law service enhancement.

Recommendation 2

It is recommended that the principles and objectives of family law reform be as follows:

Principles

Ensure that the needs and well-being of children come first.

Support measures that protect children from violence, conflict, abuse and economic hardship.

Recognize that children and youth benefit from the opportunity to develop and maintain meaningful relationships with both parents, when it is safe and positive to do so.

Recognize that children and youth benefit from the opportunity to develop and maintain meaningful relationships with their grandparents and other extended-family members, when it is safe and positive to do so.

Recognize the positive contributions of culture and religion in children's lives.

Promote non-adversarial dispute-resolution mechanisms and retain court hearings as mechanisms of last resort.

Provide legislative clarity to the legal responsibilities of caring for children.

Recognize the overlapping jurisdictions in custody and access matters in Canada, and make efforts to provide co-ordinated and complementary legislation and services.

Objectives

To focus parents, professionals and services to better serve children's needs and interests.

To reduce the negative impact of conflict on children and to promote healthy models of dispute resolution.

To support positive parental, extended family, and cultural interactions with the child.

D. THE ROLE OF FEDERAL, PROVINCIAL AND TERRITORIAL LAWS

Custody, access and child support are areas of shared constitutional jurisdiction because of Parliament's responsibility for marriage and divorce and the provinces' responsibility for property and civil rights.  The Divorce Act applies to custody, access and child support when these issues are determined under that legislation during divorce proceedings.  These issues are determined by provincial and territorial legislation for separating married parents who are proceeding under provincial legislation for orders of separation and other relief, and when divorcing parents choose to proceed under provincial legislation during divorce proceedings.  They are also determined under provincial legislation for unmarried parents.  Provincial and territorial law governs all other aspects of family law in relation to parents and children, for example, establishment of parentage, adoption, change of name, child protection, guardianship of the estate of the child and consent to medical treatment.

Thus there are at least fourteen different statutes and fourteen different statutory provisions governing custody and access in Canada.  Some provinces and territories have more than one statute that affects custody and access.  Appendix C outlines the statutory provisions in all Canadian jurisdictions.  None of the provisions is exactly the same, although there are important common elements.  All provide that the governing and fundamental principle is the best interests of the child.[23]  All use the term custody, although is it is not always the primary term used to define parental rights and responsibilities.  For example, in British Columbia and Alberta, guardianship is the primary term employed in the legislation.

The specific definition or use of the term custody varies from statute to statute, but, except in the Quebec legislation, the term usually refers to all the rights and obligations related to the care and control of a child, including legal custody, the responsibility to make all important decisions about a child's care and upbringing, and physical custody, the responsibility for the everyday physical care and control of the child.  This bundle of rights and responsibilities is sometimes called "guardianship of the person" of the child.  It generally does not include responsibilities related to the children's property or estate, which is often referred to as "guardianship of the estate" of the child.[24]

For example, in Saskatchewan, The Children's Law Act, 1997 defines custody to mean "personal guardianship of a child and includes care, upbringing and any other incident of custody having regard to the child's age and maturity."[25]  Under Quebec law, in contrast, custody has a narrower meaning.  It refers only to physical custody.  The Quebec concept of parental authority is closer to the concept of custody as it is used in other Canadian jurisdictions.  The common denominator across Canada is that, at the least, the term custody implies the actual physical care and control of the child and the practical day-to-day decision making required to fulfil that responsibility.

Access, as it is used in the legislation, refers to the non-custodial parent's contact with the child, through visits or otherwise.  Some of the statutes contemplate a somewhat broader definition of access than do others.  For example, some legislation specifies that access includes the right to be provided with important information about the child.  Others specify that this is a right to information only, and not a right to be consulted or participate in decision making.

Joint custody, while not defined per se in any statute, is a term usually used to refer to a situation where both parents have legal custody of the child, although one parent may have physical custody, or primary physical care and control.  Its usage is akin to the Quebec concept of joint parental authority.

Shared custody is not a term currently used in Canadian custody legislation.  It generally refers to a situation where parents share physical custody, as well as legal custody.[26]

Canadian legislation generally allows the court wide discretion to fashion the kind of order it considers appropriate in the circumstances.  The courts can and do order a wide variety of parenting arrangements, both under the Divorce Act and under provincial and territorial legislation.  Some examples are:

The legislation also does not preclude the parents from entering into, by agreement, whatever parenting arrangement in their view best suits their divided family.  Parents are not bound to use the statutory terminology in their own agreements, although precision in a custody order is essential to enforcement should disputes arise.

E. OVERVIEW OF RESEARCH AND CONSULTATIONS

In recent years, a number of countries have made significant changes to their laws governing child custody and access.  The Family Law Committee studied changes in the State of Washington, the United Kingdom, and Australia in some detail. [27]  These jurisdictions were chosen for several reasons.  Each has made significant changes to the terminology of custody and access.  The new legislation has been in effect in these jurisdictions for a number of years and, as a result, some evaluation material concerning the impact of the legislation is available.  Although none of the evaluations are conclusive in terms of the effects of the legislation, the available research does indicate that the legislation has not yet had positive benefits in terms of reducing litigation and conflict between parents.  The Family Law Committee also looked at custody and access reforms in civil law countries, particularly in France.[28]

This report also draws upon research conducted here in Canada.  Much of this recent research has been undertaken in co-ordination with the Family Law Committee.  Most of it is fairly recent, having been undertaken in the last four years following the release of the Special Joint Committee on Child Custody and Access report and its suggestion that further Canadian research was needed and should be undertaken.[29]  Different types of research projects have been undertaken, including legal research, empirical research and consultative research.

Examples of the kinds of legal research undertaken include analyses of options for reforming access enforcement or addressing high-conflict cases.[30]  The empirical research includes projects that have looked at available statistical data from existing surveys such as the National Longitudinal Survey of Children and Youth and the General Social Survey,[31] as well as related sociological reviews of available literature on topics of concern such as false allegations of abuse and high conflict.[32]  The consultative research includes consultations with the general public[33] as well as consultations with professionals who work with families in transition.[34]

This report draws on this Canadian research.  Throughout the report, where appropriate, research results are offered and references to the research are provided for the interested reader.  Taken as a whole, the research is another example of the fruits of federal-provincial-territorial co-operation and the benefits of informed policy development.  The body of research is fairly large, but it is the view of the Family Law Committee that further research is required to continue to develop and enhance our understanding of families, family transitions, and family-law related problems and issues.[35]

Recommendation 3

It is recommended that there be a continued national emphasis on research and evaluation to monitor trends and the impact of reforms in law and services.

F. KEY LEGISLATIVE ISSUES

While a number of concerns have been raised about current custody and access legislation, it is clear from the public consultations, from the report of the Special Joint Committee on Child Custody and Access, and from responses from organizations such as the Canadian Bar Association, that many Canadians do not view legislative change as the sole or even primary focus for family law reform.  It is generally recognized that legislative change without service enhancement or reform may have limited or no impact on the way families and children deal with family breakdown and reconstruction.[36]  The need for services and family-sensitive dispute resolution mechanisms to support families in dealing with separation issues in the best way for the children has been a dominant theme of the custody reform discussion.  The options for reform in services and dispute resolution processes are discussed in more detail in Section G of this report entitled "Service Options and Responses."

This section of the report addresses concerns about the current legislative framework for custody and access.  There are some key issues and these were put forward for discussion in the 2001 Putting Children's Interests First:  Custody, Access and Child Support in Canada First consultation document.  They are defining "best interests"; terminology; family violence; high-conflict relationships, addressing children's perspectives; and meeting custody and access responsibilities.

Defining "Best Interests"

Custody and access law and services in Canada are guided by the basic principle that all decisions must be made in the best interests of the child.  This is also the standard adopted in the United Nations Convention on the Rights of the Child.[37]

All Canadian statutes governing custody and access incorporate this overriding principle and direct the courts to consider the child's best interests in making custody and access decisions.[38] Some, but not all, provincial and territorial laws list specific factors that parents are to consider when determining the best interests of the child.  The Divorce Act does not contain such a list.  The Special Joint Committee on Child Custody and Access recommendeda list of criteria to consider in determining the best interests of the child.[39]

The consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada, contained a broad list of factors that could be included in a definition of best interests.[40]  The possible factors were characterized as falling within several broad themes:

Stakeholders were asked whether best interests criteria should be inserted in the Divorce Act and, if so, which criteria should be included.  While many supported a change to help ensure that best interests would be better understood, many participants questioned the overall impact such a change might have.  For them, a greater focus on public education and family services might achieve more concrete results in better educating parents, families and professionals on the meaning of best interests.  Although there was no consensus for adopting a defined list of criteria, there was some appreciation that a non-exclusive list did not have any perceived negative impact in those jurisdictions that had adopted criteria.[41]

The Family Law Committee has some concerns that an exhaustive list of criteria may create new areas of litigation based on the enumerated items.  However, a balanced, non-exhaustive list of criteria could provide guidance to parents, professionals and the courts on the kinds of factors to consider and should not in itself encourage new litigation.

Recommendation 4

It is recommended that custody legislation contain an explanatory non-exhaustive list of criteria for parents, judges and others involved in the decision-making process to consider when determining the custody arrangement that is in the best interests of the child or children.  The factors to be listed include:

Recommendation 5

It is recommended that any list of best interests criteria be child-centred to ensure that the child's best interests remain the foremost consideration in custody and access decision making.

Terminology

Use of the terms custody and access has been criticized.  It is argued that the terms are inappropriate to describe a parent-child relationship because they have connotations of the old concept of the child as the property of the parents, and because they encourage parents to focus on their rights rather than on their responsibilities.  From the critics' perspective, the terms are "emotionally loaded" and promote a culture of litigation that leaves one parent the "winner" and the other a "loser," irrespective of their parenting abilities. 

Advocates of abandoning the current terminology also often link their concerns about custody language to a concern that parenting responsibilities are not allocated appropriately under the current legal approach.  They feel that it results in one parent having most of the authority and responsibilities in relation to the child, to the virtual exclusion of the other parent from a meaningful parenting role.  Some link the current language and approach to an allegation that the current system is gender-biased.  These critics feel that what is required is not only new language but also a new concept of allocating parenting responsibilities after separation and divorce.

Because of similar concerns, some other common-law countries and American states have discarded the traditional custody and access language and adopted new terminology and often new substantive legal concepts.  For example, in Australia and the United Kingdom, the terms custody and access were replaced by the terms parental responsibility, residence and contact.  Washington State replaced custody and access with a regime based on parenting plans in which parenting functions, including decision-making authority, are allocated to each parent.[42]

Some civil law jurisdictions have also been reviewing the language they use to describe parenting arrangements.  In the 1970s, family law went through significant changes in European civil law countries, particularly in France.  The Council of Europe in 1984 recommended the use of the term parental responsibilities.  Although France continues to use the term parental authority, France has proposed a new approach for courts and others to assist parents in organizing the terms and conditions of their parental authority.[43]

The Special Joint Committee on Child Custody and Access recommended that the terms custody and access be replaced in our legislation with a new regime and terminology that the committee called shared parenting, where "in almost all cases both parents will continue, after separation and divorce, to exercise their pre-separation decision-making roles."[44]

On the other hand, supporters of retaining the current terminology maintain that the existing terminology is not necessarily negative.  Parents can define their roles appropriately by agreement and the courts have wide discretion to mould the parenting arrangement to suit each family by allocating the incidents of custody in a positive way.

The proponents of retaining the current custody language point out that it is important to be realistic about how much changing legislation can accomplish.[45]  Changing legal terminology cannot alter attitudes or force parties to abandon confrontation.  Indeed, the Australian experience demonstrates that attempts to clarify terminology may increase the potential for litigation and misunderstanding.  While there are those who argue for some form of presumption of joint parental responsibility or shared parenting,[46] the Australian experience suggests that jurisdictions be cautious in inserting new terminology given its potential to be misunderstood or to lead to negative results in terms of balancing the interests of children and their parents.

In 1987, Washington State changed to a parenting plan model to try to refocus parents on the needs of the child, but to date the change has had little impact on the reality of post-separation parenting.  The changes in the United Kingdom were intended to encourage parents to focus on co-operative arrangements, but the available research indicates that these changes have not succeeded in reducing litigation concerning custody and access.  On the contrary, there has been "a dramatic increase in litigation over contact orders."[47]

Some advocates of changing terminology have also argued that the current language lacks clarity in Canada because, they allege, it has different meanings in different jurisdictions.  They believe that there is a need to clarify the language so that it is understood and employed in the same way throughout Canada.  Those opposing changing the current terminology maintain it is clear and well understood by Canadians and the legal system and any confusion that may exist can be resolved through means other than changing the terminology.

The consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada, articulated five options for public discussion:

Option 1-Keep Current Legislative Terminology

The terms custody and access would be retained.  Awareness and use of the wide range of parenting arrangements that are now available would be promoted through new and enhanced public and professional education and training programs.

Option 2-Clarify the Current Legislative Terminology:  Define Custody Broadly

The terms custody and access would be retained but clarified by being defined to include a non-exhaustive list of areas that make up custody in clear and understandable language.  The legislation would provide a framework for parents and judges to assign the various parenting responsibilities to one parent alone or to both parents jointly.  The legislation would require the courts to clearly allocate parenting responsibilities but not require the parties or the courts to use the terms custody or access.

Option 3-Clarify the Current Legislative Terminology:  Define Custody Narrowly and Introduce the New Term and Concept of Parental Responsibility

The term custody would be retained but it would be redefined narrowly to mean residence only.  It would be but one component of a new concept, parental responsibility, which would refer to all the rights and responsibilities of parents for their children.  Each parent would be responsible for the day-to-day care and decisions about the children when they are with that parent.  Responsibilities could be assigned to one parent only or to both parents jointly.

Option 4-Replace the Current Legislative Terminology:  Introduce the New Term and Concept of Parental Responsibility

The terms custody and access would be replaced with a new concept parental responsibility.  Court orders of parental responsibility would allocate specific aspects of parental responsibilities between the parents.  A specific function could be allocated to one parent alone, to the parents proportionately or to both parents jointly.

Option 5-Replace the Current Legislative Terminology:  Introduce the New Term and Concept of Shared Parenting

The terms custody and access would be replaced with a new concept shared parenting.  This shared parenting approach would not mean that children must live an equal amount of time with each parent.  The starting point for any parenting arrangement, however, would be that children would have extensive and regular interaction with both parents, and that parental rights and responsibilities, including all aspects of decision making, but not including residence, would be shared equally or nearly equally.

Respondents in the consultations voiced many of the arguments summarized above about the merits of changing the current terminology and concepts.  There was no public consensus on which of the options would be best.  Indeed, there were strong opposing views expressed on Option 1 (Keeping current terminology) and Option 5 (shared parenting).  There appeared to be support for some form of terminological change, or at least a public expectation that the legal system should encourage parents to focus their attention on the needs of the children and their responsibilities as parents rather than upon their rights as parents.[48]

The Family Law Committee was also unable to reach a consensus in favour of any one of the options.  The Committee agreed that it would not recommend Option 5 (shared parenting) for several reasons.  Parenting arrangements should be determined on the basis of the best interests of the child in the context of the particular circumstances of each child.  There should be no presumptions in law that one parenting arrangement is better than another.  The Special Joint Committee on Child Custody and Access also concluded that the legislation should not contain presumptions.  Its report, under the section entitled "No Presumptions," relates some of the debate on the issue and makes the following comment:

Shared parenting has come to imply a presumptive starting point of equal or near equal parental rights and responsibilities, including decision making.  Imposing a regime of shared decision making on parents who are not able to deal with each other without conflict can engender more conflict to the detriment of the children.  Moreover, while it is recognized that both parents can play a positive role after separation in the child's development, the parental role should not be emphasized at the expense of a clear determination of what is in the child's best interests.  It is also a term that seems to engender significant debate regarding its meaning and how it should apply.  The ambiguity of the term itself may promote conflict.

The Family Law Committee considered and weighed various factors in its assessment of the other four options.

The Family Law Committee's review of legislation across the country indicates that the argument for legislative change based on a need for clarity is not compelling.  Although the statutes vary, as discussed earlier in this report, all statutes use custody to mean, at the least, the everyday care and control of the child or, to put it another way, residence and the day-to-day decision making that goes along with it as a practical matter.  The language is workable for enforcement purposes and the legislative concept is flexible enough to permit any kind of parenting arrangement that suits a particular family.

However, a term like "parental responsibility" might not have the negative baggage that some ascribe to the current terminology.  Requiring or permitting the use of this seemingly more neutral language might encourage parents to take a more consensual approach.  Research conducted during this project suggested that terminology change might help to promote a less adversarial approach.[50]  Building into the legislation a menu of alternative parenting arrangements or parenting functions may provide guidance to parents, lawyers, other professionals, and the courts to help them develop parenting arrangements that are more sensitive to the child's needs with regards to each of the child's parents.

On the other hand, many people do not believe that the terms custody or access have negative implications or, if they do, legislative change is not necessarily required to change the language actually used to describe parenting arrangements where the parents do not want to use that language.  For some years now, parents, lawyers and judges across the country have been moving away from the language of custody and access in agreements and court orders, and they have been able to do so because the current legislative language and scheme permits this flexibility.[51]  For example, in Manitoba, the typical custody order does not take the form of sole custody with access.  More often, the order states that the parents have joint custody (meaning decision making about important matters is shared), and one parent has "primary physical care and control" and the other parent has "physical care and control as the parties may agree."[52] Furthermore, to the extent that there may be any ambiguity in the existing terminology, parents, lawyers and judges are free to fashion agreements and orders that suit the particular family.

The Family Law Committee's review of the current federal, provincial and territorial legislation has not revealed any gender bias in the legislation.  It is recognized that, while the law may be gender neutral, in a majority of cases the mother is a sole custodian or, in a joint custody arrangement, she is the primary caregiver with the father having the role of an access parent.[53] There is no reason to believe that this gender differentiation is a result of systemic bias in the Canadian courts.  It is more likely that in the vast majority of cases the parties have themselves agreed on this arrangement.  The social realities or parents' perceptions regarding parenting roles may be responsible.

Fundamentally, the Family Law Committee recognizes that any reform should be aimed at clarifying parenting responsibilities and helping parents to focus on the needs of the children.  Any terminology needs to be sufficiently flexible to respond to the range of needs and circumstances of children and their parents.  It is the workability of the arrangements rather than the terminology that matters most.[54]

In general, the Committee believes that options 2, 3 or 4 could meet these principles for reform, depending on the specific statutory language and the supports available to promote implementation and understanding of the concepts.  There was a range of support for each of these models.[55]  All of these options could clarify the decision-making responsibilities of parents and unbundle the decision-making requirements to make it clear that parental responsibilities can be shared by, or divided between, the parents in the way that meets their children's best interests.

However, any change has the potential for negative and positive effects.  The potential impact should be analyzed further, including the time required to implement these changes, so as not to disrupt family relationships unnecessarily.  If the terms custody and access are replaced in family law legislation, they may still be used in other legislation dealing with child protection or guardianship.  The impact of such a change on provincial and territorial legislation needs to be considered in this context as well.  In addition, even if the terms custody and access are replaced in relation to parents' rights and responsibilities, the term access may need to be retained to deal with third party claims, such as those of grandparents or other extended family.

Any change in the current terminology would also have to accommodate the definition of custody in The Hague Convention on the Civil Aspects of International Child Abduction so that in cases falling under the Convention, one could ascertain whether an incident of custody within the meaning of the Convention had been breached.  This would be necessary to ensure that requests for the return of abducted Canadian children are not jeopardized.

Indeed, the Family Law Committee's concerns regarding the impact of any terminology change include the need to consider what services will be required to help families adjust to any new regime and what information will need to be provided to families, legal professionals and others involved in the family justice system about any legislative change.  Changes to legislation, particularly to terminology, require time to adjust to a new way of thinking.  Parents need information about their obligations and everyone in the family justice system needs to understand the intention and effect of any legislative change.  As well, the concepts of custody and access are well established in society beyond the family justice sphere.  For example, police officers, day care workers, school officials, and health care workers refer to the concepts.  Many different groups would require information on how new terminology would apply to their work.

Experience in other jurisdictions confirms that an ongoing program of education and information is required to properly implement any legislative reform in the area of family law.[56]  Interest groups and professionals interpret changes in family laws in different ways.  The challenge is how to address the fact that there are many different messages being heard from the same words used in legislation.  There are subtleties in language and slight changes can mean differences in the message.

The Family Law Pathways Advisory Group was established by the Australian Attorney-General and Minister for Family and Community Services to find ways to improve the pathways for families through the family law system.  That group recommended an ongoing information strategy be developed to reach people at the time they need to hear the message.  Such a strategy would be aimed at helping people understand their obligations upon marriage breakdown and their continuing responsibilities to parent their children.

Consultations with parents and professionals indicate that problems in the family justice system have more to do with the lack of resources for families than with legislation.[57]  In fact, increased availability of family justice services and education programs would likely have a greater and more positive impact in changing the circumstances families experience on separation and divorce than any legislative change.[58]

If there is legislative change, it will require time and funding to implement the legislation and to assist with the appropriate service changes.

Recommendation 6

It is recommended that legislation not establish any presumptive model of parenting after separation, nor contain any language that suggests a presumptive model of parenting.  The fundamental and primary principle of determining parenting arrangements must continue to be the best interests of the child.

Recommendation 7

It is recommended that, where jurisdictions determine that their legislative terminology should be changed or clarified, any amendments to legislation should be child-centred, focus on parents' responsibilities to understand and meet their children's needs, and promote the positive and safe involvement of both parents.  It is agreed that Options 2, 3 and 4 could meet these criteria and that Option 5 does not.

Family Violence

Another major issue of concern for the public and the Family Law Committee is whether the current family law system ensures that family violence issues are appropriately addressed in making determinations on what is in the best interests of the child.  Provincial and territorial legislation varies in the degree to which it deals with this issue.  The Divorce Act has been criticized for lack of clarity on how the courts are to treat allegations or findings of family violence, and for how it balances these issues with rules relating to maximum contact.  The current regime has been criticized as placing over-emphasis on contact, sometimes at the risk of the child.  A child's needs must be considered in the overall context of that child's life and circumstances.  Making one criterion more important than another seems contrary to a child-centred approach.[59]

The consultation paper, Putting Children's Interests First:  Custody, Access and Child Support in Canada, raised these issues.  Although there were a variety of responses, it would seem that a significant number of respondents recognize that family violence can have serious consequences for children, as well as for their caregivers, and that legislation may require greater clarity to ensure that the safety of children is not compromised.  It is also clear that participants in the consultation recognized the need for a strong network of services to support legislative measures.[60]

The options for reform range from including a general statement of principle in the legislation to indicate that children deserve to develop in a healthy environment free from emotional, physical and psychological harm, to including specific presumptions against contact where family violence has been shown to be a factor.  Many are concerned, however, that any change in legislative standards can have negative results in terms of either deterring parties from raising family violence concerns or in creating incentives to raise family violence when the circumstances do not warrant it.

A related issue is the concern that has been expressed that some parents make false allegations of child abuse against the other parent in order to gain an advantage in custody litigation.  Research has shown that there are differing perceptions regarding this issue and that the actual level of false allegations seems to be relatively low.[61]  However, the lack of trust and lack of adequate communication between parties may lead to misunderstandings or misinterpretations leading to increased conflict and more distrust.  Again, the difficulty lies in achieving the right balance to ensure that the child's safety is not compromised and that the child's contact with both parents is not limited without sufficient reason.

The Family Law Committee acknowledges the serious negative impact that family violence can have on children's sense of security, self-esteem, and future orientation to relationships.  This negative effect exists whether the children are the direct or indirect victims of the violence.  However, each case must still be considered based on the past, current and future potential for violence or negative implications of violence on relationships.  We recognize that violence can occur in isolated instances or may be part of an ongoing pattern of conduct.  The implications of the particular risks or negative implications of family violence need to be carefully considered in each case where this factor is raised.  The pre-eminent purpose of keeping children safe and supporting their well-being needs to be recognized throughout decision making.  This means that parents and courts should ensure that their decisions do not create situations that place the child at risk.

Recommendation 8

It is recommended that, with a view to ensuring that no court orders are made which may result in prejudice to the safety of children and place them at risk,

(b)   legislative criteria defining best interests include, as factors to be considered,

Recommendation 9

High-Conflict Relationships

At present, neither the Divorce Act nor provincial and territorial legislation contain provisions specifically addressing high-conflict relationships.  It has been suggested that legislative measures are needed to deal specifically with those cases where a parent or child alleges they are at risk as a result of high conflict.  There are differing views on the "streaming" of violent or high-conflict cases.[62]  One view holds that the fact that the case is before the court means that it warrants judicial attention, because there may be undisclosed issues of power imbalance in the family.  Another view holds that to force all high-conflict cases, such as those involving family violence, into the court stream, and away from other dispute resolution techniques is paternalistic and denies the autonomy of the victim.[63]

The research seems to show that only about ten to fifteen percent of all couples exhibit a high level of legal and interpersonal conflict.[64]  Families may cycle in and out of conflict depending on factors such as financial stress, new relationships, and problems with childcare and development.  Research shows that the level and intensity of parental conflict is a very important factor in children's adjustment after separation or divorce.  Parents caught in the cycle of conflict may not recognize the harm being generated.  Parents who co-operate after they separate increase the chances that their children will have close relationships with both of them and will cope successfully with the separation or divorce.  Parental conflict and lack of co-operation have a negative effect on children's adjustment after separation and divorce.  When parents' interpersonal struggles take centre stage, children's needs are not given adequate attention.  High-conflict parents may have difficulty seeing their children's needs as separate from their own and this interferes with their ability to learn how to effectively co-parent or communicate.[65]

The research suggests that "there is no generally accepted definition of what constitutes a high-conflict divorce, although there is acknowledgement that these situations differ from the normal amount of upset associated with marital separation and divorce."[66]  Most separating couples go through a period of transition that includes emotional upset regarding the end of their relationship.  However, the reason some separating and separated couples become "locked into long, bitter and expensive battles over custody, access and support, while the majority of separating and divorcing families are able to avoid such protracted disputes, remains unclear."[67]

Research indicates that high-conflict situations may cause serious problems for children and parents.  Children experience fear, sadness, powerlessness, guilt and a sense of divided loyalty.  Parents experience similar emotions and report that a range of problems occur in high-conflict situations, including physical threats and assaults, access denial, restrictions of access to extended family members, withholding of support payments, and refusing access to information for the other parent.  Mental health workers and lawyers also describe high-conflict situations as being problematic, involving anger and powerlessness, domestic violence and physical, emotional and verbal abuse.  Lawyers and judges often describe high-conflict cases in terms of increased court time and repeated litigation.[68]

Separation and divorce cases marked by high conflict seem to share some characteristics.  These include the emotional difficulties experienced by the parents and children in dealing with the high levels of conflict; related problems that arise out of the parents' conflict such as the use of false allegations of abuse or access denial; and the simple reality that high-conflict parents often litigate more than do other less conflicted couples, resulting in their using more court time and resources as well as their own time and resources on settling their dispute.  In these kinds of situations, it is difficult to believe that the best interests of the children are being served.[69]

While the public consultations raised this issue and invited comments on an appropriate legislative or service response, it appears clear that-family violence aside-it would be difficult to sufficiently define high-conflict cases in a way that would lend itself to a legislative response or criteria.  The solution to high-conflict cases lies in supporting parents to focus on their children's needs, improving their communication and conflict resolution skills, and support services or approaches to better stream and screen high-conflict cases in order to intervene earlier and more effectively.[70]  For example, Manitoba's parent education program, For the Sake of the Children, runs separate seminars for parents experiencing higher conflict.  These seminars focus on safe, low-to-no-contact ways to parent after separati