REPORT ON FEDERAL-PROVINCIAL-TERRITORIAL CONSULTATIONS
Many arguments were made in support of the various options, both during the in-person workshops and in written submissions. The advantages and disadvantages of each option are discussed below, followed by alternatives for wording. The predominant themes related to terminology is presented in the section “Summary of Predominant Themes on Terminology”.
Keep the current legislative terminology.
Those in favour of keeping the current legislative terminology echoed the points made in the previous section ("Using Terms Other Than Custody and Access"), and provided the following reasons for their position:
- The current terminology is clear and well understood throughout society and the legal system;
- Changing the terminology would require courts to spend time and resources defining the meaning of the new terms, and might have far-reaching implications for the allocation of child support (which is based on the custody arrangement);
- The existing terminology is helpful in situations of family violence or when one parent is uninterested in parenting, because it allows for sole custody;
- The existing terminology is flexible and can be adapted to various situations;
- The current terminology is easily translated into Inuktitut, whereas other suggested terminology is not;
- Decisionmaking power should remain with the primary caregiver (i.e. the person with whom the child lives) because joint decisionmaking power when one parent is the primary caregiver (for example, as proposed in option 3) is usually unworkable;
- It is necessary to retain the word custody because it is used in the Hague Convention on the Civil Aspects of International Child Abduction, an important tool for parents when the other parent takes the children from the country without permission; and
- Some respondents feel that the situation could best be improved by explaining what the existing words mean, rather than by introducing new words.
Those who did not want to retain the current legislative terminology also reiterated points related to the best interests of children, as well as arguing the following:
- The words custody and access have negative connotations of ownership and winning and losing, limit the contributions of non-custodial parents, and are based on an adversarial premise;
- The French equivalent of access, droit de visite, implies that the non-custodial parent is merely a visitor in his or her children's lives;
- These terms have different definitions in different family law situations (which is confusing), and presume that parents will not be equal participants in raising their children after a divorce;
- The terms are inflexible and interfere with parents trying to address their unique situations;
- Keeping the existing terminology would not foster the desired change in attitude-that is, focusing on the best interests of children; and
- Some criticize the existing terminology on the grounds that it does not reflect the idea that both parents have parental responsibilities.
Some organizations emphasized the following:
- Options 1 through 4 are unacceptable because they do not address the anti-male bias of current legislation and generally place men at a disadvantage with respect to playing a meaningful role in the lives of their children; and
- Sole custody should never be an option, as it becomes a weapon for one parent to use against the other and is not in keeping with the recommendations of the Special Joint Committee on Child Custody and Access (for this reason, these organizations did not favour options 1, 2 or 3).
Some women's organizations also expressed reservations about options 1 and 2 because these did not sufficiently address violence, gender and primary caregiver considerations.
Clarify the current legislative terminology: define custody broadly.
Those in favour of clarifying the current legislative terminology and defining custody more broadly felt that this could result in a definition of custody that is acceptable to all stakeholders. They also felt that a broader definition would allow more flexible responses to unique family situations. Respondents emphasized that the new definition of custody should include parental roles and responsibilities. In addition, some respondents said that parents should then be allowed to submit a list of roles and responsibilities they would be willing to assume.
During the discussion, people in favour of option 2 reiterated many of the points made in favour of option 1 (keeping the current terminology).
Those against broadening the definition of custody said that this option did not address their concerns about the negative implications of the term (such as ownership, and winning and losing) or the need for new attitudes about parenting after divorce focused on the best interests of the children. These respondents said that a broader definition would be more ambiguous than the existing terminology and would continue to promote an adversarial relationship between parents.
In their rejection of option 2, these respondents reiterated many of the points made against option 1.
Clarify the current legislative terminology: define custody narrowly and introduce the new term and concept of parental responsibility.
Those in favour of this option raised many positive points about the term parental responsibility:
- It is neutral (it does not imply or assume a 50-50 distribution of parenting responsibilities);
- It empowers both parents and accommodates different parenting styles and interests;
- It is flexible and can be applied to many situations;
- It is a less emotionally laden term than those proposed in other options;
- It effectively describes the reality of parenting after divorce;
- It gives form to the involvement of both parents, which is vital in the minds of those who agree that co-parenting must be at the heart of the chosen approach;
- It could be easily understood and defined by parents; and
- It promotes the best interests of children.
Those in favour of option 3 said that the term parental responsibility encourages parents to resolve their own division of responsibilities through recourse to mediation, parenting plans and ongoing communication. However, these respondents stressed that ongoing communication between the parents is not required when this is unproductive, and recourse through the courts is still an option when allocating parenting responsibilities. Respondents also said that, because the term focuses on parents' responsibilities rather than rights, it promotes the best interests of children. Also, the term does not force children to choose one parent over the other as primary caregiver and reduces the chance of parental alienation, all of which is in children's best interests. They further believe that option 3, more than the others, can provide a tailor-made solution, leaving the courts free to allocate parenting responsibilities in detail when this becomes necessary.
Some respondents favoured something midway between options 3 and 4, wanting a solution that retains the decisionmaking power of both parents while stressing the need for the court order to specify in detail how parental responsibilities are to be exercised, whatever decision is made regarding the residence of the child.
Those in favour of option 3 supported a narrow definition of custody because it limits the meaning solely to the physical residence of the children, while explicitly recognizing that both parents have other roles and responsibilities to fulfil with respect to their children.
Those against option 3 raised several issues with the term parental responsibility:
- The term is vague; therefore, it might cause greater conflict and litigation, putting additional pressure on the court system;
- The concept of allocating parental responsibilities to meet the best interests of the children is based on the parents agreeing on those best interests, which is not always the case;
- Sharing parental responsibilities might result in a lack of long-term planning about the children's needs (because parents may limit their thinking to the time when the children are with them);
- The concept probably would not work well in long-distance situations because it would be difficult for the children to move regularly between remote locations;
- It may prove impossible to assign responsibilities exclusively to one parent or the other, which might cause confusion and conflict;
- Children need to have one primary caregiver to have stability in their lives. This option may preclude this (others felt that the need for one primary caregiver would be addressed by retaining the word custody and defining it narrowly to mean only the children's place of residence); and
- The term has been used in Australia and the United Kingdom and has not created the desired win-win situation for both parents. Rather, mothers have continued to provide the bulk of primary care, conflict between parents has increased (a development some attribute to the change in the way the law is worded), and non-residential parents have used parental responsibility as a weapon against primary care parents.
Those against option 3 also said that, by retaining the word custody, the option perpetuates the problems related to that term discussed under option 1.
Some women's organizations said that the wording of options 3 and 4 was too vague and would lead to increased litigation, greater conflict between parents and possibly violence. Furthermore, they said that option 3 would allow an abusive or violent parent to lobby for more control over the children and would limit the decisionmaking power of the parent with whom the children primarily live.
Replace the current legislative terminology: introduce the new term and concept of parental responsibility.
Those in favour of this option reiterated the positive aspects of the term advanced in connection with option 3. In addition, some people said that option 4 was preferable to option 3 because it removes all reference to and emphasis on custody. Other supporters of this option place more importance on specifying in every case exactly how parental responsibility is to be exercised, and see this as an incentive to the parties to reflect on the practical implications of the parental reorganization. It would also do more than the other options to recognize the fact that in most cases, the division of parental responsibilities is something other than 50-50.
Other arguments in favour of option 4 were that similar terminology is used with success in the Quebec Civil Code. In response to concerns about the use of the word custody in international agreements, it was suggested that the legislation include a mandatory requirement for orders to state which parent has custody for the purposes of the Hague Convention the Civil Aspects of International Child Abduction.
Those against option 4 reiterated their concerns about the term parental responsibility, as outlined under option 3. Some people were also concerned about the following:
- Option 4 might result in children being automatically placed with the mother, because custody is subsumed under the many other parental responsibilities to be discussed and allocated; and
- The complex agreements that would result from option 4 would cause difficulties for other individuals who have to read and understand them (for example, teachers, health care professionals and police officers).
Some respondents said that the individual responsibilities making up parental responsibility should be detailed in the law so they can be clearly allocated between parents. These responsibilities would include, among others, housing, adequate nutrition, schooling, homework, medical care, sports, religious activities, extracurricular activities, emotional support, financial security and spending money (allowance). Others said that a list could never address all of the parents' responsibilities and would, in any case, extend to several pages. Given that, they favoured defining parental responsibility generally, and letting parents and judges specify the responsibilities they felt were most relevant to the situation. Still others said that the degree to which responsibilities are specified should be tied to the degree of conflict between the parents, with high conflict cases having individual responsibilities set out most clearly.
Replace the current legislative terminology: introduce the new term and concept of shared parenting.
Those in favour of replacing the current terminology with the term shared parenting (in which the sharing includes the usual residence of the child) said that this term implies that both parents are expected to meet parenting responsibilities and, therefore, removes the "win-lose" aspect of some of the other options.
Some people said that the term shared parenting presumes equal responsibility for parenting which they felt gives both parents ownership of the process and allows them to create with little conflict an arrangement for exercising their parenting responsibilities and planning for the future.
Other people did not feel that shared parenting presumes equal responsibility for parenting and that this was positive because it allows for flexibility when dealing with exceptional circumstances while still presuming that, in most circumstances, one parent will not have total control over the children.
Others said that it was a drawback that equal responsibility could not be presumed. These people wanted to include the word equal (as in equal shared parenting or shared and equal parenting) to emphasize that parenting responsibilities, decisionmaking and residence are to be shared 50-50. Several arguments were presented along these lines, including the following:
- A 50-50 split of parenting responsibilities would lower divorce rates and reduce children's vulnerability, which was felt to be higher in single-mother households, in particular when the mother begins a new relationship; and
- In today's society both women and men work and have similar earning power. However, children between birth and age four should not have to reside with both parents equally and should stay with their mothers.
Those in favour of option 5 also made the following points:
- The current rejection of fathers should lead to the introduction of the shared custody presumption inherent in option 5 as a measure of "affirmative discrimination" in their favour;
- This option would support the child's continued interaction with his or her extended family, including both parents (in fact, some felt there was a need to extend option 5 by entrenching the rights of grandparents, as recommended by the Special Joint Committee on Child Custody and Access);
- Shared parenting could serve as a starting point for mediation; and
- Option 5 recognizes the equality of parents after separation and is therefore in keeping with domestic and international human rights agreements.
Some people pointed out that, if option 5 were adopted, it would affect the determination of child support payments. These respondents felt that, should shared parenting become the norm, the 40-percent rule for determining child support should no longer be used. They advocated moving to a more holistic approach to child support, based on an evaluation of the financial needs of both parents and the children.
Those opposed to replacing the current terminology with the term shared parenting expressed the following opinions:
- The term does not reflect the best interests of children because it focuses on the parents, rather than the parents' responsibilities for children;
- This option is unrealistic as it assumes a preferred parenting situation that is not always realistic or desirable (respondents noted that a shared parenting arrangement does not exist in most intact households);
- It is not beneficial and, in some cases, not possible to share all aspects of parenting;
- To share parenting equally requires extensive interaction between the two parents, which may not always be possible or desirable;
- The term does not acknowledge situations in which the grandparents are the children's primary caregivers;
- The term does not acknowledge situations in which neither parent is fit or willing to care for the children; and
- The term is unclear and, therefore, may make divorce more litigious and time-consuming, which would place low-income people, who cannot afford a lengthy court process, at a disadvantage.
Some respondents also said that, because this option seems to presume a 50-50 split of parenting responsibilities and, therefore, of time with the children, it might harm child support arrangements (which are currently based on the proportion of time children spend with one parent or the other).
Some women's groups were particularly concerned about the effects of option 5 in a situation involving family violence, and raised the following points in that regard:
- If shared parenting (presumed to mean a 50-50 split of parenting responsibilities) is the default situation, it would place the onus on one parent to prove that this is not in the best interests of the children (for example, in violent situations or when the other parent is uninterested or uninvolved);
- The option does not include a mechanism through which parents could raise concerns in court about the unsuitability of one parent to carry out parenting responsibilities; and
- If one parent were to raise concerns about the suitability of the other, that parent would risk being labelled "unfriendly" according to subsection 16(10) of the Divorce Act, which can negatively affect access and his or her opportunities to contribute to further decisionmaking.
Respondents proposed a number of alternatives, including the following, which they felt were superior to the options offered in the consultation document:
- Replace shared parenting with co-parenting, which does not imply a 50-50 split of parenting responsibilities;
- Replace access with parenting time, which has fewer negative connotations;
- Split custody into two parts: custody and additional custody or guardianship. The term access would then only be used when one parent is deemed unfit to have custody, in situations of family violence, for example;
- Consider the phrase parenting plan or parenting arrangement, which incorporates the concepts of custody and access as well as parental responsibility, and have the added benefit of being forward-looking;
- Consider the phrase responsibility for the child, which focuses clearly on the interests of the children and removes parents from the discussion altogether; and
- Consider one of the following: scheme for shared parenting responsibilities; time with one's child; time shared with one's child; sharing of time and tasks; parents to share their parenting responsibilities as follows; and so on.
Some respondents from Manitoba reported that the law there uses the phrase care and control, which implies both physical and emotional responsibilities toward children. Physical responsibility may be shared, but emotional responsibility is always equal. Some respondents said that this could be considered for use in the Divorce Act; however, others said that it could lead to rivalry between parents, both of whom want the greater degree of control.
Other respondents supported an entirely new option: a consensual approach to custody and access decisionmaking. This option reflects their belief that the current court system is not an appropriate venue for resolving family disputes and that there is a need for a kinder approach to custody and access issues. A consensual approach would include the following:
- collaborative law practices, including roundtable conferences with families at which lawyers could provide advice based on their experience;
- professionals to help parents through crises with education and support;
- a holistic approach to custody and access, involving many types of professional assistance; and
- a focus on non-adversarial thinking when dealing with children and parents.
Three themes arose during the consultations with regard to legislative terminology addressing the roles and responsibilities of parents.
The first theme was generally advanced by women's organizations, who expressed two primary concerns: the safety of women and children in situations of family violence and recognition in society of the woman's role as primary caregiver. Their concern about violence led these groups to support options for terminology that allow sole custody (that is, do not presume a 50-50 split of parenting responsibilities), which they said is necessary in situations of violence to protect the parent and children from the abuser. These groups' concern about recognizing women's role as primary caregiver led them to support options that give decisionmaking power to the primary caregiver. This is because, according to them, control over decisionmaking should be tied to the level of parenting effort made (i.e. to the level of responsibility parents are willing or made to assume).
The second theme was generally advanced by men's organizations, whose primary concern was that men be acknowledged as equally capable parents. This concern led them to support options that presume a 50-50 split of parenting responsibilities. In fact, in some cases they argued that the options presented in the consultation document did not go far enough to make explicit the equal sharing of parenting responsibilities. In response to concerns raised about violence, men's organizations advanced the belief that many allegations of violence are false and, therefore, should not unduly influence the choice of new terminology.
The third theme was advanced by some lawyers, professionals involved in family law matters and some parents whose primary concern was that the current terminology encourages conflict and the breakdown of access agreements. They said that this has a particularly strong impact on the well-being of children and generally felt that a change in terminology may engender a change in philosophy and practice. This leads them to support options that include the term parental responsibility but not custody and access, producing a better outcome for children. In contrast, other lawyers were primarily concerned with preserving the clarity of the existing terminology and the integrity of existing case law. They were therefore opposed to moving away from current terminology.
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