High-conflict Separation and Divorce: Options for Consideration

2004-FCY-1E

EXECUTIVE SUMMARY

This discussion paper examines the issue of high-conflict divorce in light of proposals for reform made by the Special Joint Committee on Child Custody and Access in its 1998 Report and the federal government's response to that report. To set the context for viewing high-conflict divorce as a problem deserving government action, this paper examines the professional literature on the effects of divorce on children and adults, as well as the literature on the effects of high conflict on children whose parents are separated or divorced. It examines the various typologies or theories of conflict, looks at possible definitions of high-conflict divorce, and proposes a definition of "high conflict" that focusses on external markers such as re-litigation and domestic violence. It examines the law in the United States, England, Australia and New Zealand to see what efforts, if any, have been made in those countries to address high-conflict divorce situations. Finally, it proposes four options for consideration, ranging from moderate to radical, keeping in mind at all times the need for federal, provincial and territorial cooperation in this area of law.

Chapter One, Introduction, examines the proposals for reform in the context of high-conflict divorce proposed by the Special Joint Committee on Child Custody and Access and the federal government's response to the Joint Committee. The Special Joint Committee's report For the Sake of the Children, made several proposals for reform. These included that the federal, provincial and territorial governments should work together to encourage the development of effective models for the early identification of high-conflict families seeking divorce; that high-conflict families should be streamed into an expedited process; and that the Divorce Act should be amended to provide explicitly for the granting of supervised parenting orders when necessary to ensure continuing contact between a parent and a child in situations of transition or when the child requires protection. The federal government's 1999 response, Strategy for Reform, set out basic principles for reform. It identified the importance of developing mechanisms to identify high-conflict divorce and to treat high-conflict divorce in a different stream. It stressed the necessity of consulting with appropriate experts from different disciplines, reviewing the professional literature on how to identify different conflict levels, reviewing legal responses in other jurisdictions, and identifying further research and criteria to assist in developing principles and criteria to guide parenting arrangements.

Chapter Two, Tracking the Effects of Divorce, draws in large part upon a literature review on high-conflict divorce conducted for the Family, Children and Youth Section, Department of Justice Canada (Stewart, 2001). The chapter looks at studies of the factors that lead to negative or positive adjustment for children whose parents divorce, and examines the connection, if any, between custody/access and children's adjustment. The chapter points out the limitations of these studies. However, it concludes that there are roughly defined risk factors that seem to lead to negative results for children in divorced or divorcing families, including ongoing parental conflict and hostility.

Chapter Three, Studies of High Conflict and Its Effect on Children, examines studies in the periodical literature about the negative effect that inter-parental conflict has on children. These studies generally indicate that families engaged in high conflict are more likely to have children with high levels of emotional distress.

Chapter Four, High-conflict Divorce: Theory and External Markers, attempts two things. First, it describes various theories of high-conflict divorce, in particular the theory that such couples are at an impasse on three levels: the external, the interactional and the intra-psychic levels. Second, it describes external causes of high conflict in divorce. These include the role of attorneys, mental health professionals and/or the courts in promoting conflict between the parties to the dispute; domestic violence; and the role that cutbacks in Legal Aid may have had in fuelling conflict within the court system. It also examines various definitions of high conflict offered by clinicians in the professional literature and by some American jurisdictions, such as the State of Idaho. It points out the problems associated with trying to obtain a definition of high-conflict divorce. Nevertheless, this chapter acknowledges the usefulness of external markers to recognize high-conflict divorce and proposes, with some exceptions, the external markers suggested by Stewart (2001).

Chapter Five, Interventions in High-conflict Divorce, examines the use and specifics of parenting plans in high-conflict divorces, particularly the need for a parent coordinator and a highly detailed and structured parenting plan. It examines the usefulness of divorce education programs and of mediation in high-conflict divorce, with some emphasis on Janet Johnston's model of "impasse-directed" mediation. It also briefly looks at the role of legal representatives for children.

Chapter Six, Foreign Jurisdictions, examines the legal and judicial responses to high-conflict divorce in other jurisdictions. The major jurisdiction examined here is the United States, where the State of Idaho has produced a mammoth benchbook for its judiciary to use in cases of high-conflict divorce. This benchbook includes a protocol for the judiciary to follow in such cases. In addition, the relevant law of the states of Oregon, Washington and California are examined, as are parent coordinator models, special masters and guardians ad litem. The laws of three Commonwealth jurisdictions, England, Australia and New Zealand, are also examined.

Chapter Seven, Options for Consideration, is just that. It presents options for consideration that are proposed in the spirit of multi-jurisdictional cooperation between the federal government, the provinces and the territories. The first option, the most moderate, makes suggestions for providing services to all divorcing couples, whether high or low conflict. These are that all hearings relating to a divorce proceeding generally be heard by the same judge; that special masters be available to investigate any controversy arising between the parties; that mandatory parenting education classes be ordered by the court; that mediation be ordered by the court; and that the court may appoint independent legal counsel for the child if it is in the child's best interests. The second option suggests limited guidelines that would define high-conflict divorce and would detail what should be included in parenting plans in high conflict situations. The third option addresses high-conflict divorce in a broad manner. It recommends that a judicial benchbook, modeled on the Idaho Benchbook Protecting Children of High-Conflict Divorce (Brandt, 1998), be created for use by Canada's judiciary. This benchbook would address high-conflict divorce in all its aspects, and should be created through the cooperative efforts of federal, provincial and territorial governments. A more modest variation of this theme is that a protocol for high-conflict divorce, again modeled on the Idaho Benchbook, should be created. The fourth option considers the creation of a separate statute that exclusively addresses high-conflict divorce. It provides details of what a comprehensive legislative response by all governments working together would look like.