Notes on a Private Member’s Bill to amend the Divorce Act (Equal Parenting)

Carolina Mingarelli, Constitutional and Parliamentary Affairs Section, Parliamentary Information and Research Service, Library of Parliament

8 June 2009

This paper provides a list of concerns regarding a draft private Member’s bill which proposes to amend the Divorce Act to establish an equal parenting scheme in divorce cases where custody of the children of the marriage is contested.  The purpose of the paper is to identify and briefly explain possible legal challenges to the proposed amendments.  The text of the bill is included in a Schedule to this paper.

It is noteworthy that while one can find literature pertaining to many of the concerns highlighted in this paper and detailing arguments in favour of equal or shared parenting, that literature is not reflected here, as the purpose of this paper was to anticipate arguments that might arise against the content of the proposed private Member’s bill.

Possible Legal Challenges

A.    Principles to be Applied in Making Parenting Orders

Clause 16(2) of the bill creates a test for courts to apply in making a parenting order.  The test is described in proposed sections 16(4) to 16(7) and 16(14) to 16(17).  This test constitutes a complex quasi-mathematical puzzle for the decision-maker and could be very difficult to interpret and apply to individual claims.  It is easy to imagine that in trying to ensure that a decision is in keeping with the principles enumerated in the legislation, a child’s best interests and individual needs could get lost in the shuffle.  Errors may be made along the way, and it is the children who could suffer as a consequence.  It is trite to state that every divorce case is composed of a unique set of circumstances and every family is different.  Specifying elements to be evaluated and dictating the priority to be granted to each said elements will limit the court’s freedom and flexibility in deciding on parenting matters.

In particular, the principles set out at proposed sections 16(14), (15) and (16) could cause some confusion.  It is no longer clear that the best interests of the child remain the deciding factor in making a parenting order since so many other elements are presumed and/or must be considered, and in many cases, these elements concern the parents rather than the child.  For example, in proposed section 16(15)(c) it is stipulated that the “willingness, and the effectiveness of the efforts, of each spouse to facilitate, encourage and support the child’s continuing parent-child relationship with the other spouse” should be a primary consideration for the court in evaluating a child’s best interests ahead of, for example, the existence of family violence committed in front of the child, which is relegated to being a secondary consideration at proposed section 16(16)(c).  Such a legislative framework may render the child’s needs and best interests subject to his or her parents’ behaviour.

Moreover, the lists included in these sections are seemingly exhaustive, leaving no discretion to the judge to introduce other factors which may be important in evaluating a child’s situation.

The introduction into the Divorce Act of such a list of principles to be considered by the court is not problematic in and of itself.  The 1998 Special Joint Committee on Child Custody and Access report entitled For the Sake of the Children included a recommendation consisting of a list of statutory criteria to guide parents and judges in applying the best interests of the child test.^([1])  Many of those criteria appear in the bill.  However, the Committee’s list did not prioritize the criteria, leaving the judge with some discretion to decide what was best for the individual child in each different case.  Moreover, the Committee’s list expressly allowed the court to consider any other factor it found relevant to the particular dispute.

Finally, this complex test also gives high conflict parents a ready-made list of issues over which to wage war.  For all these reasons, the test could be a target for critics of the bill.

Therefore, it may be advisable to revise these sections in order to allow the judge some flexibility in his or her decision-making.  This would also ensure that families with unusual circumstances will not suffer as a consequence of the relatively strict legislative framework imposed on the decision-maker.  This could be achieved by removing the concepts of primary and secondary considerations and placing them in one list and by making the list non-exhaustive, by, for example, indicating that the judge may also take into account any other factor that the court finds relevant to the particular circumstances of the case.

B.     Post-Separation Behaviour

Proposed section 16(16)(d) states that if it occurs after the separation, an event incompatible with the primary considerations set out at section 16(15), including abuse of the child, becomes a secondary consideration.  Relegating post-separation behaviour to a secondary consideration could be the focus of much criticism and may not be justifiable as a child will suffer equally, if not more, from abusive or toxic behaviour after a separation.  Elements set out as primary must have been identified as such for specific reasons and it is fair to assume these do not cease to be important simply through a change in living arrangements.  Furthermore, in cases of abuse when the victimized parent decides to leave the abusive parent, such primary considerations could actually worsen after separation when a child is left alone with an abusive parent.  This distinction between pre- and post-separation behaviour seems arbitrary and may serve to undermine the bill as a whole.  It might therefore be advisable to remove this clause.  Adopting a single list of considerations would also resolve the issue.

C.    Removing the Possibility of “Access” Orders

The provisions of the Divorce Act presently allow a caring adult such as a grandparent or an older sibling to, with leave of the court, seek an order for access to a child even though that adult does not wish play a parental role (or, according to the new definitions used in the bill, that adult does not wish to be granted parental responsibility).

The proposed bill essentially removes the court’s ability to make an access order under existing subsections 16(1), (2) and (4) of the Divorce Act.  Consequently, the bill would complicate the possibility of someone other than a parent seeking a court order that amounts to something less than a parenting order in respect of the child, orders commonly known as “access orders,” “visiting orders” or “contact orders.”

Indeed, the proposed amendments only contemplate granting orders for “parental time” and “parental responsibility.”  According to proposed section 16.2, the allocation of “parental time” seems to be restricted to spouses and the concept of “parental responsibility” requires the person to play an important decision-making role in the child’s life, similar to that of a parent.  These definitions clearly exclude simple access rights to a child.

 

 

Therefore, consideration should be given to modifying the bill to provide a means for an adult, other than a parent, to seek the court’s leave to apply for a right to visit or have regular contact with a child.^([2])  The bill could contemplate modifying the parenting orders and adding the possibility of access orders to better reflect the reality of today’s families and the importance that step-parents, siblings and other relatives can have in a child’s life.

With regard to this issue, the Special Joint Committee on Child Custody and Access report also included the following recommendation:

 

That the relationships of grandparents, siblings and other extended family members with children be recognized as significant and that provisions for maintaining and fostering such relationships, where they are in the best interests of those children, be included in parenting plans.^([3])

 

It should be noted, however, that even if the bill is enacted without change, there would still exist a method for a person to seek such an order under provincial laws.

D.    Charter Challenges

The amendments to the Divorce Act proposed in this bill could foreseeably give rise to a number of challenges under the provisions of the Canadian Charter of Rights and Freedoms.

1.      Mobility Rights (section 6)

Proposed sections 16(12) and (13) would require the court to include in a parenting order terms prohibiting any person who has responsibility for the parenting of a child from changing the place of residence of that child if said change would make compliance with a parenting order impractical or unreasonable.  Assuming it is generally unreasonable to expect a parent to change residence and not bring their minor child along with them to live at the new residence, the proposed requirement could amount to a restriction on the mobility rights of former spouses.

The inflexibility of this approach might pose two problems.  First, the outcome of any given situation would be the product of a mechanical application of a strict rule and therefore would not necessarily be in the best interests of the child or parent.  Second, the provision might be vulnerable to a Charter challenge under section 6, which guarantees mobility rights.

Presumably the purpose of the proposed provision is to stop one parent from frustrating the other parent’s relationship with the child by moving far away with the child.  A different approach that might partly overcome the above concerns while still fulfilling the purpose of the amendments would be to provide an exception to the no-move rule where a parent proves to the court that moving with the child would be in the child’s best interests.  This is roughly consistent with the jurisprudential rule regarding parental mobility developed over time.  The provision establishing a legal presumption that a child’s best interests lie in maintaining maximum and frequent contact with both parents could remain in place to ensure the court does not fall victim to a bias in favour of one parent.

This approach might be expected to result in a situation where neither parent would be able to move away with the child without first winning a steep uphill battle to establish that the move would be in the best interests of the child.  At the same time, it would not completely foreclose the possibility of a spouse moving away with the child, which could reasonably be expected to be in the best interests of the child in some circumstances.

2.      Right to Life, Liberty and Security of the Person (section 7)

Most divorcing spouses are able to come to a consensual agreement on parenting issues, whether alone, or with the help of counsel and/or mediator.  The provisions of the Divorce Act come into play in the smaller percentage of cases where parents cannot compromise.  Equal parenting requires cooperation between parents.  In this sense, the concept of equal parenting is at odds with litigating parents.  A 2004 Department of Justice literature review on custody arrangements and their effect on children indicated that “shared custody appears to be harmful to children when the parents are in “high conflict” (although what parental behaviour constitutes conflict is somewhat unclear), when the children are the subjects of the conflict or when they become embroiled in the discord.”^([4])

This bill creates a presumption in favour of equal parenting in cases where parents are at odds to the point that they cannot compromise and agree on how to manage their children’s lives and require a judicial decision to ensure a conclusion to the feud.  The creation of a presumption for equal parenting could escalate problems in already high conflict situations by forcing parents to deal with one another continuously.

Imposing equal parenting in a situation where parents are in an acrimonious relationship may not be in the best interests of the child and this may also be subject to a Charter challenge under section 7 which provides for the right to life, liberty and security of the person.

E.     Separation of Powers

The proposed bill would amend the Divorce Act, which is federal legislation, enacted in accordance with the Constitution Act 1867.  So long as its application is restricted to custody issues in cases of divorce, there should be no encroachment on provincial jurisdiction.  The wording of the proposed bill does not appear to affect custody matters in cases of common law or civil unions.

F.     Other Legal Concerns

1.      Best Interests of the Child

In order to reflect the wording of the United Nations Convention on the Rights of the Child, which appears to be one of the goals of this bill, proposed section 2.1(b)(iii), the purpose clause of the bill, could be amended to add the caveat “except if it is contrary to the best interests of the child.”

In addition, there seems to have been an oversight in proposed section 16.1(c) which should include the phrase “in accordance with the best interests of the child.”  This would be in keeping with proposed section 16.1(b) relating to parenting time.

2.      Fulfilling Co-Parenting Responsibilities

Nothing in the bill ensures that each parent will assume co-parenting responsibilities adequately after the divorce.  Considering the presumption for co-parenting, it may be advisable to introduce an obligation on each parent to assume parental responsibility (and parenting time) adequately.  This could be a problem especially in cases where one parent could suffer financially if the other parent does not comply with the parenting order.  The courts are usually reticent to force a parent to take on parenting responsibilities unless he or she is willing.  As such, if one were to contemplate remedies for parents who do not assume their parental responsibilities, the provision might indicate that such remedy should be in the form of greater support to the parent who is taking on additional responsibility and/or time with the child.

Indeed, shared parenting orders may result in a greater financial burden on one parent rather than the other, as it is expected that financial support for the child will be reduced in cases of shared parenting.  If one of the parents does not exercise his or her equal parenting rights, the support for the other will not necessarily be increased.  As a consequence, the child becomes worse off as they are living in reduced circumstances.

Additionally, the presumption in favour of equal parenting can have an adverse effect on the bargaining power of the poorer spouse in a divorce, as the richer spouse can already use the threat of further litigation to reduce support payments.  With the addition of the presumption of equal parenting, the poorer parent’s bargaining power could be reduced to nil.  The richer parent could use the threat of continued litigation to induce settlement for reduced spousal and child support payments.  This could lead to consensual agreements detrimental to all involved.  Coupled with a restriction on changing residences, it may be difficult for one parent to make ends meet.  This can have an adverse effect on the child’s standard of living.  

Indicating expressly in the bill that each parent has a legal obligation to assume his or her co-parenting responsibilities may ensure that parents fulfil his or her legal obligations and could give the other parent some bargaining power for additional support should the other parent renege on his or her obligations.

3.      Procedural Matters

Proposed section 17(5) allows the court to make a variation order in cases where there has been a change in circumstances of the child.  Proposed section 17.2(2) states that the coming into force of proposed section 17(5) alone constitutes such a change in circumstance.  Practically, this would mean that as soon as proposed section 17(5) comes into force, parents may apply to the court for a variation order, regardless of whether any actual change in circumstance has occurred in the child’s life.  One could envisage the impact that allowing these procedures would have on the family justice system, potentially causing a flood of motions for variation orders; however this is nothing in comparison to the potential damage that a child could suffer by being subject to new litigation.  This could spark problems in families that have finally settled their difficulties.  In cases where a variation order is needed because of real changes in the circumstances of the child, the new provisions would apply notwithstanding the existence of section 17.2(2).  In light of these probable consequences, one may wish to reconsider the inclusion of this clause in the bill.

It is noteworthy that a similar provision was included in the 1997 legislation creating the Federal Child Support Guidelines^([5]) because it had been found many support orders were not at adequate levels to ensure that children had sufficient financial resources available.  The inclusion of such provision allowed ex-spouses to ask the court to overturn support orders to render them more adequate, and by the same token, to make support order more consistent (which was one of the purposes of the legislation).  In the case of parenting orders, the same reasoning does not apply since children’s living arrangements (unlike support) should not be made to conform to those of other children, but rather to conform to each child’s own needs and interests.  As mentioned above, doing so could cast instability into a child’s life and result in toxic consequences for the child who will again be subject to litigation.

G.    Differences Between the Proposed Private Member’s Bill
and Australian Legislation

It is our understanding that the Australian equal parenting legislation^([6]) may have been a model for this bill.  We take this opportunity to highlight some of the differences with the Australian Act.

First, the Australian legislation contains a presumption in favour of equal parenting responsibility only, not for equal time (though equal time is presumed when equal parenting is granted).  Second, the presumption in favour of equal parenting does not apply if there are reasonable grounds to believe a parent of the child has engaged in family abuse.^([7])

A third important difference is of a more procedural nature.  Australian legislation allows the court, in an interim order, to set aside the presumptions under the appropriate circumstances.  This is an important element of the Australian legislation and should be considered for the proposed private Member’s bill.

Generally, interim orders can be made based on little evidence, depending on the procedural requirements of each province.  Proposed section 16(2) of the bill expressly provides that in making an interim order, the court should take into consideration the same factors as it would in making a final parenting order.  This could lead to interim orders based on the presumptions set out in the private Member’s bill, even in cases where violence is alleged, because no evidence is being considered.  Because, in the spirit of consistency, interim orders often become final orders, this could have a detrimental effect on the child.  In order to prevent undesired circumstances, and considering the lack of evidence usually presented during motions for interim orders, it would be in all the parties’ best interests to allow the judge some discretion at that stage.

Though the Australian legislation may have had some success, it has also been the subject of much criticism.  In late 2008, the Attorney General of Australia indicated that the equal parenting laws may be overhauled as some orders were causing distress to some children and parents.^([8])

Social concerns

A.    The Effect of the Presumption in Favour of Equal Parenting in
Families Living with Domestic Violence

In its 2002 report Putting Children First, the Federal-Provincial-Territorial Family Law Committee acknowledged that a child can suffer negative effects from domestic violence, whether or not the child is the direct victim of that violence^([9]).  Violence in the home, whether it is against a parent or a sibling or another family member, can have negative repercussions on a child’s psyche. For this reason, the Committee recognized that parents and courts should ensure that their decisions do not place children at risk and it formulated the following recommendation:

 

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,

(a)   there be no legislative presumptions regarding the degree of contact a child has with his or her parents; and

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

• any history of family violence and the potential for family violence; and
• facilitating contact with both parents when it is safe and positive to do so.

 

The Department of Justice literature review on custody arrangements concluded that “parents who are in conflict are less likely to be able to cope with the demands of shared custody (in particular, commentators urge against shared custody where there are indications of domestic violence).”^([10])

Proposed section 16(16)(c) stipulates that domestic violence is made a secondary consideration when the abuse is not directed towards the child who is the object of the order.  Moreover, family violence is a consideration only if it is done in the presence of the child, as though the child does not feel the repercussions of domestic violence he or she does not actually see.  Numerous studies have shown that family violence will always impact children regardless of whether the abuse is directed at them or another family member and making one form of violence secondary to another seems contrary to the public interest at large.

One could therefore argue that one of the possible negative and troubling outcomes of a presumption in favour of shared parenting and of this bill in general exists in the context of families where there is domestic violence.  Victims of abuse often fear their abuser, which means that they may not always denounce or report the abuse.  In such cases, judges must be especially sensitive to signs of violence in the home.

The bill further complicates the situation for parents who are victims of abuse.  In cases where the victim is willing to denounce the abuse, he or she may be reticent to do so in the face of section 16(15)(c) which makes the willingness of a parent to facilitate the child’s continuing relationship with the other parent a primary consideration in the determination of the child’s best interests.  This clause may silence a victim of abuse as he or she may fear appearing hostile and consequently jeopardizing his or her application as his or her allegations could be construed as an act engendering alienation of parental affection or as impeding the other parent’s relationship to the child.  This could create pressure on victims to allow shared parenting despite their reservations as to the other parent’s capacity to care for the child, possibly exposing a child to risk.

In light of this prospect, one might revise the bill to better serve families suffering from family violence.  In addition, one could modify the preamble of the bill to add to its goals the protection of the child from all forms of abuse.

B.     Other Options

Opponents of this bill will argue that the content of this bill will not settle the question of children becoming pawns in a battle between the parents, and that it may actually worsen the situation.  The detrimental effects of a contentious equal parenting arrangement could outweigh the benefits of a child spending equal time with both parents and having both parents actively involved in decision-making about the child.

One may consider further educating members of the legal community and the public on issues relating to parenting in situations of divorce.  Often, critics of family law legislation have criticized the judiciary, stating that the judicial system is biased towards mothers.  This bias, to the extent that it is a factor, cannot be remedied solely through legislation but would be better addressed through educating judges that a father’s presence is integral to a child’s life and that both parents should have the opportunity to be involved with the child as much as possible, when it is positive for them to do so.  To that effect, one may consider launching a complementary educational campaign should these amendments be implemented.

On a broader level, because so many children are born into common law or civil unions, a public education campaign on the importance of both parents’ presence in a child’s life may have a more positive effect for all Canadian families.