CUSTODY, ACCESS AND PARENTAL RESPONSIBILITY

Edward Kruk, M.S.W., Ph.D.

Writing, as a way of codifying human experience, sets

obstacles to “reading” the inner experience of people;

in the case of divorced fathers, the experience of being

removed as a loving parent from the life of one’s child

via a sole custody order strikes at the heart of one’s

being. Some strike out in retribution against such

uprooting; most fathers, however, seek constructive

ways to stay involved in their children’s lives while

bringing public attention to their plight, such as the civil

disobedience efforts of groups such as Fathers for Justice.

The physical, psychological and social repercussions

of child absence are prodigious, yet have been largely

ignored by policymakers, and the views of non-custodial

parents are largely absent in the literature. Child custody

and access-related problems represent not only legal

challenges, but also a “bio-psycho-social-spiritual”

affliction for fathers and children, and in some cases

mothers and children, who are separated from each

other. Raising public awareness in regard to both the

harms of the adversarial sole custody system and to viable

alternatives, such as shared parenting, is critical, given

the prevalence of separation and divorce in Canada.

This paper will document the drawbacks of the current

sole custody system, and outline a viable alternative in

the form of shared parenting responsibility (rebuttable

joint physical custody) in cases where family violence

and child abuse are not present. The paper will

apply a social analytical perspective to the issues,

and will focus on children’s needs and paternal (and

parental) responsibilities to these needs, as well as the

responsibilities of social institutions to support fathers

(and parents) in the fulfillment of their parenting

responsibilities. The number of fathers who voluntarily

disengage from their children’s lives is a serious problem;

however, the involuntary and unnecessary estrangement

of fathers who want to maintain an active role in the

care of their children and are prevented from doing

so via sole custody decrees is tragic. This paper is an

attempt to find viable solutions to this state of affairs.

The primary focus of this report is the determination of child custody when

parents cannot agree on post-separation parenting arrangements, and negotiation

efforts have failed in this regard. The primary recommendation of the report is the

establishment of a legally rebuttable physical joint custody presumption for such

cases, also known as the “shared parental responsibility” approach. Shared parental

responsibility is defined as children spending at least 40 per cent of their time with

each parent after separation and divorce. It will be argued that this is the most

effective means to ensure that children maintain existing attachments with each

of their parents, irrespective of parental status (cohabiting or maintaining separate

residences), assuming there is no investigated finding that the child is in need of

protection from a parent. The same standard that is currently applied to abused

children in non-divorced families, it is argued, should be applied to children of

divorced parents.

Disputes involving child custody can be highly complex. But as Howard Irving and

others have argued, amid all the talk of rights for children, one basic need must be

asserted: children of divorce need both parents responsibly involved in their lives,

with social institutions supporting parents in their respective roles. The present

“winner-take-all” sole custody approach, applied to cases where family violence is not

a factor, removes one fit and loving parent. Proposals such as the “primary caregiver”

presumption, which would award custody to one “primary parent,” overlook the

reality of shared care arrangements in the majority of two-parent families, and the

existence of primary attachment bonds between both parents and their children,

even when one parent has assumed most of the day-to-day caregiving. There is

merit to the “approximation standard” proposal in which post-separation parenting

arrangements are set as equal in terms of proportionate time to pre-separation

parenting arrangements. However, when parents both claim to be primary

caregivers, the pattern in most disputed cases, joint physical custody, it is argued,

should apply.

In May, 1997, when the current federal Divorce Act came into effect, Minister of

Justice Allan Rock proposed that a joint committee of the House of Commons

and Senate make recommendations regarding child custody and access. After 55

hearings and more than a year of study and research, the committee made 48

recommendations to Parliament, all with an underlying theme: the sole custodybased

adversarial system, as it pertains to the majority of custody and access

disputes, puts families, especially children, at risk, and shared parenting should

be established in law. Years later, prime minister Stephen Harper’s 2006 election

platform promised to implement “a presumption of shared parental responsibility,

unless determined to be not in the best interests of the child,” and to promote

mediation as an alternative method of conflict resolution. These were the

cornerstones of the Joint Committee Report in 1998, yet meaningful child custody

law reform has yet to occur.

Most family law matters are resolved without court orders, and a judge determines

post-separation custody in only a small minority of cases. Yet the influence of these

decisions goes well beyond the decisions themselves. Contested cases define legal

norms; the repercussions of contested cases of child custody go well beyond the

cases themselves, as they serve as a baseline for the legal determination of all cases of

custody disagreements, including the balance of uncontested cases. They collectively

form the basis of a body of law upon which others are advised. Legal negotiations are

governed by expected results in the courtroom, and those fathers who actually file

for custody and force a court decision are not representative of all the men who want

custody of their children; the actual percentage of fathers who want custody is much

higher than the number of men who take their case to court. In Canada, 64 per cent

of divorce cases involving children start out as contested on the issue of custody, yet

only 4 per cent are brought to trial (Department of Justice, 1990). The spouse who

expects to be awarded child custody (and its associated support) is the one more

likely to initiate court proceedings (Brinig and Allen, 2000). In Canada, two-thirds of

proceedings are initiated by mothers, and there is a clear imbalance in the awards of

custody to mothers (Millar and Goldenberg, 2004).

Many parents still manage, however, to agree on joint physical custody before

going to court, and shared parenting, not sole custody, has emerged as the norm

in Canada in non-litigated cases (Statistics Canada, 2005). When judges become

involved in divorce cases, however, shared parenting is judged not to be in children’s

best interests; sole maternal custody remains the norm in judicial determinations

(Department of Justice, 1990; Millar and Goldenberg, 2004).

According to child development experts, a major reason law reform is needed in

the child custody realm relates to the need of children to maintain meaningful

relationships with both parents, beyond the constraints of a “visiting” or “access”

relationship (Wallerstein and Kelly, 1980). A second reason is the need to promote

parental cooperation and reduce conflict, and to shield children from family violence

and child abuse. The incidence of family violence rises dramatically in situations

where adversarial means are used to “win” court-ordered care and control of

children. Such outcomes have profound long-term consequences for children and

their development.

Although lawyers and judges are not professionally trained in child development

and family dynamics, judges continue to make child custody determinations largely

without the benefit of credible social science evidence. Kelly and Lamb (2000) found

that decisions regarding child custody and access are most often made without

reference to research on child development, although this research directly concerns

children’s needs and “best interests.” Melton (1989) presents a startling account of

how little social science knowledge trickles down into the public policies that are

intended to benefit children in the child custody realm. Yet as studies of family

violence, shared versus joint custody outcomes, and fatherhood involvement reveal

emerging trends, an emergent consensus on child custody and family violence

reveals that shared parenting can prevent violence in cases with no previous history

of marital violence or abuse.

The issue of family violence lies at the centre of debates regarding child custody and

access, and shared parenting. Although some claim that joint custody endangers

women and children, it is clear from current research that shared parenting prevents

parental abuse (Bauserman, 2002), as 50 per cent of first-time violence happens

after separation, within the adversarial sole custody system (Statistics Canada, 2001;

Corcoran and Melamed, 1990). As the threat of losing one’s children heightens

fear and fuels anger, such outcomes are not surprising. Joint physical custody can

thus prevent violence in cases where there is no prior history of violence, as both

parents continue to be equally valued and involved in children’s lives. In cases where

violence is present and has been established via criminal conviction or a finding

that a child is in need of protection, however, joint custody is not appropriate (Jaffe,

Crooks, and Bala, 2005). Within the sole custody system, the risk of abuse after

separation is lower for previously abused women than for previously non-abused

women (Spiwak and Brownridge, 2005).

The research is clear that joint physical custody is salutary for children and parents

in non-violent cases (Bauserman, 2002), even when highly conflicted parents are

initially opposed to it and are seeking sole custody (Gunnoe and Braver, 2001).

Research is reinforced by strong public support for shared parenting. Yet a sole

custody ideology continues to prevail in judicial decision-making and this ideology

is reflected in assumptions that mothers are naturally better caregivers, that fathers

petitioning for sole or joint custody are manipulative or seeking to avoid child

support payments, or that children are better off in the care of one parent only.

Child custody and access law and policy are among the most contentious areas of

family law and family practice. A gender- and rights-based discourse dominates the

field, and this heightens conflict; as Mason (1994) has argued, the “best interests of

the child” standard has historically been a struggle between mothers’ and fathers’

rights, with children viewed as rightfully “belonging” to one parent only, via “sole

custody” judgments. This view continues to be reflected in Canadian judicial

practice (Department of Justice, 1990).

In sum, the “winner-take-all” sole custody approach to child custody falls prey to

the following disadvantages: it is adversarial in nature; the focus on the competing

rights of parents overshadows the responsibilities of parents and social institutions

to address the needs of children; one parent is a clear “winner” and the other a

“loser” in parental status, with the designation of a “primary” and a “secondary”

parent; and child custody and post-divorce parenting matters are seen as a one-time

dispute to be resolved rather than a long-term process that will change and evolve

over time.

In recent years, with increasing scrutiny of the indeterminacy of the current “best

interests of the child” standard in Canada and judicial lack of expertise in this

regard (Bala, 2000), a new ethic has emerged, which recognizes that children’s

needs and interests are related to, yet distinct from, those of their parents, and that

these needs, physical and psychological, social and spiritual, should be used as the

foundation to determine their “best interests.” Thus a new parental “responsibilityto-

needs” discourse is being introduced gradually into socio-legal policy. Both the

limitations of the dominant “parental rights” discourse and the emergence of the

new “parental responsibility-to-needs” framework are factors driving the alternative

shared parental responsibility framework.

The disengagement and alienation of non-custodial fathers (and some mothers) from

their children’s lives is well documented (Kruk, 1993). Many of these parents are also

at risk of poverty and violence, yet “rights-based” women’s and men’s groups have

tended to proceed from either the perspective of mothers or fathers in isolation

from each other. Both mothers and fathers are affected by child absence, poverty

more in common than many interest groups assume. Unfortunately, a child custody

and family violence policy overview from a “parental responsibility” framework has

yet to be undertaken. This framework considers first and foremost the importance

of clearly defining children’s “best interests” in terms of their essential needs in

the separation and divorce transition, enumerating parental responsibilities visà-

vis these needs, and outlining the responsibilities of social institutions such as

the courts and legislatures to support parents in the fulfillment of their parental

obligations. It is with such a lens that this policy paper will proceed.

Separation, and Parental and Social Institutional

Responsibilities

In general, relationships with parents play a crucial role in shaping children’s

social, emotional, personal and cognitive development, and there is substantial

literature documenting the adverse effects of disrupted parent-child relationships

on children’s development and adjustment (Lamb, 1999; Lamb, Hwang, Ketterlinus

and Fracasso, 1999). The evidence further shows that children who are deprived of

meaningful relationships with one of their parents are at greater risk psychologically,

even when they are able to maintain relationships with the other parent. Children

are more likely to attain their psychological potential when they are able to develop

and maintain meaningful relationships with both parents, whether the two parents

live together or not. A large body of research documents the adverse effects of

severed father-child relationships in particular, including father-infant relationships,

as well as the positive contributions that fathers make to their children’s

Two benchmark longitudinal studies on children’s needs in the separation and

divorce transition have followed a cohort of children of divorce from childhood to

adulthood, and remain a key source of information about children’s adjustment

to the consequences of parental separation and divorce. The main findings of

tradition, and Wallerstein and Kelly (1980), which utilized the perspectives and

methods of clinical research with a sample of “normal” children and parents of

divorce, tend to be corroborative. Both studies found that, particularly during the

first year after separation, the parenting capacities of both mothers and fathers

deteriorated significantly. During separation and after, parents tend to ascribe their

own feelings to their children and are often unaware of and relatively insensitive

to their children’s needs. In the midst of their own feelings of anger, rejection and

bitterness, parents may not have the emotional capacity to cope with their children’s

feelings as well; the emotional strain engendered by the process of divorce is

strongly associated with parental unresponsiveness to children’s emotional needs. At

the same time children often deliberately hide their distress from their parents.

The multiple transitions that accompany divorce for parents affect children acutely.

The form and severity of children’s reactions depend on factors such as age, gender,

and particular circumstances, and although some disagreement exists as to which

age group tends to show which symptoms, studies continue to show that children

of divorced families frequently exhibit behavioural difficulties, poor self-esteem,

depression and poor school performance.

Children of different ages and developmental stages react differently to separation

and divorce; the stage of children’s emotional development is an important factor

in how they will perceive the divorce. Children under the age of five are the

most adversely affected by the divorce transition. They manifest vulnerability to

depression (the opposite is true for intact families), confusion about the nature

of families and interpersonal relationships, a tendency to blame themselves for

the divorce (which is highly resistant to therapeutic intervention), regression

in behaviour and general development, a fear of being sent away or replaced,

joyless play, a preoccupation with trying to fit objects together, and a yearning

for the absent parent – and they are the group most at risk of losing contact with

non-custodial fathers. Early latency-age children exhibit a pervasive sadness and

sense of loss, feelings of fear and insecurity, acute longing for the absent parent/

intense desire for the reconciliation of their parents – believing the intact family is

absolutely necessary for their continued safety and growth. Late latency-age children

evidence feelings of shame and embarrassment, active attempts to reconcile their

parents while trying to break up any new social relationships, divided loyalties and

taking sides between the parents, conflicting feelings of grief and intense anger –

usually directed toward the custodial parent (especially by boys), and a two-level

functioning (hiding their painful feelings in order to present a courageous front to

the world). Adolescents show continuing anger, sadness, a sense of loss and betrayal,

shame and embarrassment, and a concern about their own future marriages and

relationships.

Wallerstein and Kelly found that no children under the age of thirteen in their

sample wanted the divorce to happen. Mitchell (1985) found similar results: less

than half of the children in her sample were even aware of any parental conflict

within the marriage, and even those who had been aware of conflict thought their

family life to have been happy and did not view their parents’ conflict as a sufficient

reason to divorce. Those children who were unhappy in were often so due to the

implied threat of divorce. Wallerstein and Kelly also found that the degree of conflict

within the marriage prior to the divorce was not related to children’s post-divorce

adjustment: marriages that were unhappy for the adults were generally perceived as

comforting and gratifying for the children. Not only did children not concur with

their parents’ decision or express any relief at the time of divorce, but five years after,

while adults were generally satisfied with having made the right decision, children

still wished for the reconciliation of their parents and wanted to return to the predivorce

state.

In recent years, studies have examined what specific factors associated with

concluded that the absence of the non-custodial parent is a very significant factor;

they describe the intense longing of children for their non-custodial fathers: all

of the 131 children in the Wallerstein and Kelly sample longed intensely for their

father’s return. Both studies found that two factors, the amount and severity of

conflict between the parents, and the degree to which children are able to maintain

meaningful relationships with each parent, play a major role in determining the

outcome of divorce for children. They also found that associated with the prolonged

distress of children after divorce are children being the focus of parental conflicts,

children experiencing loyalty conflicts, the poor emotional health of either parent,

lack of social supports available to parents, poor quality of parenting, lack of or

inappropriate communication to children about the divorce, and child poverty.

Amato (2000) provided an in-depth examination of five major perspectives that

have been used to account for children’s adjustment to divorce. These include the

absence of the non-custodial parent, the adjustment of the custodial parent, interparental

conflict, economic hardship, and stressful life changes. The most salient

factor in children’s adjustment, according to Amato, is the impact of inter-parental

conflict. Amato proposed the development of a new “resources and stressors”

model in understanding children’s experience. This model suggests that children’s

development is facilitated by the possession of certain classes of resources (such

as parental support and socio-economic resources). Also, marital dissolution can

be problematic because it involves a number of stressors that challenge children’s

development (such as inter-parental conflict and disruptive life changes) and because

it can interfere with children’s ability to utilize parental resources (losing contact

with one parent and access to income). According to Amato, the total configuration

of resources and stressors, rather than the presence or absence of a particular factor,

needs to be considered.

There has been considerable debate in the literature about whether children fare

better in “stable” single-parent families with minimal or no contact with the noncustodial

parent, or in situations where they maintain regular contact with both

parents but are exposed to ongoing inter-parental conflict. In cases where conflict

between parents persists after divorce, is it in children’s best interests to maintain

regular contact with both parents, or to limit or cease contact with one? A British

study (Lund, 1987) isolated the variables of parental harmony/conflict and father

involvement/absence to assess their relative impact on children’s post-divorce

functioning. The study utilized a large sample, a longitudinal design, and multiple

measures of children’s adjustment. Interviewing both sets of parents (and also

children’s classroom teachers and others to gain an independent rating of children’s

post-divorce functioning), Lund divided post-divorce families into three groups:

harmonious (or neutral) co-parents, conflicted co-parents, and single parent (or

father-absent) families. Her results indicate that children fare best in harmonious

co-parental families and fare least well in single parent families. The benefits of

non-custodial father involvement for children were evident in both the harmonious

and conflicted co-parenting groups. Conflict between the parents was not as strong a

predictor of poor outcome for children as was the absence of the father after divorce.

More recent studies (Gunnoe and Braver, 2002; Laumann-Billings and Emery, 2000;

involvement and physical joint custody on children’s divorce-specific and general

adjustment. Kelly (2000), in reviewing a decade of research on child outcomes,

concluded that “joint custody led to better child outcomes overall,” and that inter

parental conflict in itself was not detrimental to children, only child-focused conflict

to which children were directly exposed. Kelly and Lamb (2000) found that, almost

by definition, custody and access disputes involve “high conflict,” but concluded

that such (non-violent) conflict in and of itself was not necessarily harmful. Amato

(2000) concluded that divorce has significant negative impacts on children; however,

moderating factors include children’s coping skills, and the presence of joint custody.

The evening and overnight periods that children spend with each parent in coparenting

arrangements are important psychologically, according to Kelly and

Lamb (2000), not only for young children and toddlers, but for infants as well.

Evening and overnights provide opportunities for crucial social interactions and

nurturing activities that “visits” cannot provide, including bathing, soothing

hurts and anxieties, bedtime rituals, comforting in the middle of the night, and

the reassurance and security of snuggling in the morning after awakening. These

everyday activities create and maintain trust and confidence in the parents while

deepening and strengthening parent-child attachments. When mothers are

breastfeeding, there is sometimes maternal resistance regarding extended overnight

or full-day separations. Breastfeeding is obviously one of the important contexts in

which attachments are promoted, although it is by no means an essential context, as

there is no evidence that breastfed babies form closer attachments than bottle-fed

babies. A father can feed an infant with the mother’s expressed milk, particularly

after nursery routines are well-established.

No studies have found that children in sole custody fare better in their psychological

adjustment than children in joint custody families, although Clarke-Stewart

and Hayward (1996) and Warshak (1992) found that children (especially boys)

did significantly better in paternal custody than in maternal custody situations.

Children in father custody had the advantage over children in maternal custody of

Sole maternal custody often results in father absence (Kruk, 1993), and father absence

is associated with the following: 85 per cent of youth in prison are fatherless; 71

per cent of high school dropouts are fatherless; 90 per cent of runaway children

are fatherless; and fatherless youth exhibit higher levels of depression and suicide,

delinquency, promiscuity and teen pregnancy, behavioural problems and illicit and

licit substance abuse (Statistics Canada, 2005; Crowder and Teachman, 2004; Ellis

Popenoe, 1996; Vitz, 2000; Alexander, 2003). These studies also found that fatherless

their biological parents (in two-parent homes and equal shared parenting situations

after divorce) are 40 times more likely to be sexually abused. Finally, father absence

through divorce is strongly associated with diminished self-concepts in children

(Parish, 1987).

More recent studies on children’s needs in the divorce transition have uncovered

important new data directly relevant to policymakers and legislators in the field of

child custody. In particular, four important new findings call into question present

child custody socio-legal policies and practices.

Studies that have attempted to examine the issue of child custody from the

standpoint of children themselves have tended to rely on clinical samples

(Wallerstein, Lewis, and Blakeslee, 2000), or simply have neglected to ask

children about their desires or needs respecting living arrangements (Smart,

2002). A new large-scale (n=829) U.S. study of children who have lived through

their parents’ divorces concludes that children want equal time with each of

their parents, and consider shared parenting to be in their best interests, as

well as in the best interests of children generally. Fabricius (2003) and Fabricius

and Hall (2000) shed light on the child custody debate with their focus on the

perspective of children in divorce. Three out of four young adults who grew

up in divorced families thought that the best parenting plans were those

that gave children equal time in each parent’s home; the authors found that

equal time is what most children desire and consider as being in their best

interests. The authors sought the perspectives of adults on their post-divorce

living arrangements as children, and also gathered data from adults who were

children in non-divorced families, between 1996 and 1999. Their findings are

consistent with earlier research focused directly on children of divorce (Lund,

1987; Derevensky and Deschamps, 1997). Fabricius (2003) and Fabricius and

Hall (2000) compared children’s actual post-divorce living arrangements with

the living arrangement they wanted, the living arrangement their mothers

wanted, the living arrangement their fathers wanted, the living arrangement

they believed best for children of divorce, the living arrangement they believed

best for children of divorce if both parents are good parents and live relatively

close to each other, the relative number of days in a typical week with each

parent they believe best for children of divorce for children at different ages,

how close they now felt toward their mothers and fathers, the degree of

anger they now felt toward their mothers and fathers, the degree to which

each of their parents wanted the other parent to be involved as a parent, and

the degree to which each of their parents undermined the other parent as a

parent. The authors noted the fact that although children of divorce perceive

a large gender gap in their parents’ generation on the issue of child custody,

there was no evidence of this gap in their generation. As young adults who

lived through the divorce of their parents, they are arguably, in a sense, the

real “experts” on the “best interests” of children of divorce. They certainly felt

an injustice in not being allowed to have an equal voice in the proceedings.

Finally, Fabricius (2003) found that children in sole custody arrangements, who

experience a history of unavailability of the non-custodial parent, articulate

feelings of insecurity in their relationship with that parent, have a perception

of rejection by that parent, and feel anger toward both parents. Consistent with

this finding, Amato and Gilbreth (1999), in their meta-analysis of the fatherchild

post-divorce relationship, found that children who were less close to their

fathers after divorce had poorer behavioral and emotional adjustment, and

lower school achievement.

major North American studies over the past decade, which compares outcomes

in joint versus sole custody homes, found that joint custody is associated

with more salutary outcomes for children. Bauserman (2002) compared child

adjustment in joint physical and joint legal custody settings with sole (maternal

and paternal) custody settings, and also intact family settings. He examined

children’s general adjustment, family relationships, self-esteem, emotional and

behavioral adjustment, divorce-specific adjustment, as well as the degree and

nature of ongoing conflict between parents. On every measure of adjustment,

children in joint physical custody arrangements were faring significantly

better than children in sole custody arrangements: “Children in joint custody

arrangements had less behavior and emotional problems, had higher selfesteem,

better family relations and school performance than children in sole

custody arrangements.”

Although many of the studies reviewed by Bauserman compared “self-selected”

joint custody families with sole custody families, some examined families with

legally mandated joint physical custodial arrangements, where joint custody

was ordered over the objections of the parents. These families fared as well

as the self-selected samples, reinforcing the findings of earlier studies that

joint custody works equally well for families in which parents are vying for

custody (Benjamin and Irving, 1989; Brotsky, Steinman, and Zemmelman, 1988).

Gunnoe and Braver (2001) also found that, compared with sole custody families,

children in joint custody families had fewer adjustment problems, and this

finding was not moderated by level of pre-separation parental conflict.

was the unexpected pattern of decreasing parental conflict in joint custody

families, and the increase of conflict over time in sole custody families. The

less a parent feels threatened by the loss of her or his child and the parental

role, the less the likelihood of subsequent violence. It may be argued that the

current “best interests” framework and sole physical custody determinations

have done little to prevent the 46 per cent of first-time battering cases that

emerge after parental separation (Corcoran and Melamed, 1990), within the sole

custody system.

Although research on child-to-parent attachment has revealed that children

form primary attachment bonds with each of their parents (Rutter, 1995), until

recently there has been very little evidence that fathers contribute to child care

to the same degree as mothers, and popular beliefs about the division of child

care activities assume primary maternal responsibility. The attachment theorybased

research is now reinforced by data from both Statistics Canada and

Health Canada. Examining patterns of primary child care in the 2005 General

Social Survey, Statistics Canada found that, on average, men 25 to 54 spent

1.8 hours a day on direct child care, while women spent 2.5 hours (Marshall,

2006). The Health Canada study (Higgins and Duxbury, 2002), utilizing a

representative sample of 31,571 Canadian workers, found that employed fathers

and mothers are roughly equal partners with respect to the amount of time

they devote to child care, as measured by the number of hours spent in the

previous week on activities related to child care. Although this finding runs

counter to popular beliefs about gender differences in the division of family

labour, these data are consistent with time use data from the United States

(Bianchi, 2000). In her U.S.-based research, Bianchi (2000) attributes the decline

in maternal child care to six factors: (1) the reallocation of mothers’ time to

market work outside the home (child-care time declines as work time has

increased); (2) over-estimations of maternal time with children in previous

research (it was assumed that time at home was all invested in child care

when in reality a large amount was given to household chores not involving

children); (3) smaller families have reduced total time with young children;

(4) more pre-school children spend time in daycare and play group settings,

regardless of the mother’s employment status; (5) women’s reallocation of their

time has facilitated a relative increase in fathers’ involvement in child care; and

(6) technology such as cell phones has allowed parents to be “on call” without

being physically present with children. Thus, as the gender difference in time

spent in child care has diminished, shared parenting is emerging as the norm

in U.S. and Canadian two-parent families. In divorced families, sole custody

is no longer the dominant post-separation custodial arrangement in Canada,

as there has been a significant increase in joint custody among parents who

are not involved in a legal contest over the custody of their children (Statistics

Canada, 2004).

Given the finding that inter-parental conflict is a key factor in children’s adjustment

to divorce, it is not surprising that family violence is an integral issue in the child

custody and access debate. There is general agreement on the part of family violence

and divorce scholars and practitioners that shared parenting or joint physical

custody is not appropriate in cases of proven violence and substantiated abuse,

either toward a child or a parent, as the witnessing of parental abuse is recognized

There is considerable disagreement, however, about the claim of some feminist

scholars that a mere allegation of abuse on the part of a woman (not a man), should

be sufficient to proceed as if that abuse has occurred, as is the practice of Canadian

law enforcement bodies (Brown, 2004). This is not a position that is supported by

research. Family violence should be considered a serious criminal matter, so false

allegations of violence should be seen as a form of legal abuse of a parent.

In the child custody realm, there are ongoing debates about the definition and

determination of family violence and abuse: what exactly constitutes “abuse” and

“violence?” Physical and sexual abuse seem clear, but what about emotional abuse,

legal abuse, and “parental alienation?” The latter are much harder to prove and

establish.

There are also debates regarding situations in which shared parenting is not

appropriate, as “high conflict” is almost universal in contested child custody disputes

(Dutton, 2005). The position taken in this paper is that family violence is a serious

criminal matter and must be treated as such, and a criminal conviction of assault

against a spouse, or a finding that a child is in need of protection from a parent,

may be sufficient to deny joint custody. An unproven allegation of abuse, however,

even in the context of a “high-conflict” divorce, is not. And it is not uncommon for

spouses in high-conflict separations to make false or exaggerated allegations of abuse

(Bala, Jaffe, and Crooks, 2007).

General Family Violence Research

Family violence and abuse after divorce is set in the context of family violence in

general. In much of the domestic abuse literature, males are represented as primary

perpetrators of physical abuse, although data from meta-analytic studies show

otherwise. The most recent meta-analytic review of family violence research (Fiebert,

2004), which examined 155 scholarly investigations, 126 empirical studies and 29

reviews or analyses, concluded that women and men perpetrate and receive abuse

at comparable levels. Earlier studies, such as Archer’s (2002 and 2000) meta-analytic

reviews, found that women are slightly more likely than men to use aggression

toward their heterosexual partners, and slightly more likely to be injured by their

male partners. Archer described an overlooked norm: that men should restrain

themselves from physical aggression towards a woman, even when women are

themselves are guilty of assault. Data from the U.S. National family Violence Survey,

reported by Stets and Straus (1992), showed that 28.6 per cent of married couples

were female violent (with a non-violent male) and 48.2 per cent were mutually

abusive physically. Stets and Henderson (1991) found that women are 6 times more

likely than men to use severe violence in dating relationships and inflict more severe

violence in cohabiting and married relationships; and Stets and Straus (1992) and

Straus (1995) found that violence by women is not primarily defensive, and yet is less

of male to female violence, but an increase of 33 per cent in female to male violence

human, not gender, issue, as women are as violent as men in domestic relationships,

and the researchers comment specifically on men’s “legal and social defenselessness.”

Canadian data show similar patterns. According to Statistics Canada (2004) and

the Canadian Centre for Justice Statistics (2000), in a national sample, 8 per cent

of women and 7 per cent of men reported abuse by their intimate partners. Of

these, 23 per cent of females and 15 per cent of males suffered severe violence. The

nature, severity and consequences of violence are similar, although 33 per cent of

the men and 66 per cent of the women reported being injured. Other Canadian

data, however, indicate that there is twice as much wife-to-husband as husbandto-

wife severe violence (Brinkerhoff and Lupri, 1988; Sommer, 1994). In 2004, there

were 74 spousal homicides in Canada; 62 of these were female victims. From 1974 to

2004, the rate for female victims of spousal homicide dropped 57 per cent, from 16.5

per million women in spousal relationships to 7.1, while the rate for male victims

dropped 68 per cent from 4.4 to 1.4.

Johnson (1995) points out that while domestic violence rates between men and

women in intimate relationships are similar, it is important to distinguish between

levels of severity, and that of the three types of partner violence, situational couple

violence (the most common type), violent resistance, and intimate terrorism (the

type most likely to be frequent and brutal), intimate terrorism is primarily maleperpetrated

and best understood through a feminist theory of domestic violence.

A wide range of studies (Ehrensaft, Moffitt and Caspi, 2004; Moffitt, Caspi, Rutter

and Silva, 2001; Dutton, 2006) indicate that this type of intimate partner violence

is relatively rare; violence at this degree of severity occurs in only 2 to 4 per cent

of the cases of domestic abuse to which police respond (Statistics Canada, 2004;

Brown, 2004), and the great majority of such domestic violence is bilateral (Dutton,

2005). Contrary to Johnson’s assertions about higher rates of intimate terrorism by

males, the research data say otherwise: Stets and Straus’ (1992) national survey data

indicated that “unilateral severe violence” against non-violent partners was three

times as common for female perpetrators as for male perpetrators. Archer’s (2002

and 2000) meta-analytic finding was that there were minor differences in violence

by gender and in injuries. From the Canadian General Social Survey, Laroche (2005)

found a rate of 2 per cent of female intimate terrorists compared to 3 per cent of

male intimate terrorists.

When police respond to cases of domestic abuse, men are treated more harshly

by the law-enforcement system at every step of the process, with the disparity

most noticeable in cases where Statistics Canada reports the greatest equality in

perpetration: low-level disputes where neither party suffered any injury. In this

category of cases, men are 19 times more likely to be charged than women (Brown,

2004); men are more likely to be criminally charged even when they report that

their partners have abused them, and thus men are less likely to report abuse than

women (Stets and Straus, 1992), because police refuse to take violence against men

Research on Family Violence in Child Custody Situations

Despite powerful findings from meta-analytic studies that family violence

is committed by both genders at the same frequency and with about equal

the prevailing assumption is that the overwhelming majority of instances of severe

marital violence involve women as victims and men as perpetrators, and this has

had a profound impact on child custody determinations (Dutton, 2005). Having

the training of Canadian judges in family law matters, instruct judges to suspect

fathers’ denial of abuse. The recommendations offered by Jaffe and Bala, including

those related to child custody and access, are based on the assumption that severe

interpersonal violence is overwhelmingly directed by men toward women. One

model of family violence predominates: the father is the batterer, the mother is the

victim, and the child is victimized by observation of the father’s violence. When

abuse perpetrators are not male, the abuse is largely dismissed as either not serious

or in self-defense. When the abuse is non-retaliatory, the argument is made that

male abuse is more serious. Yet extreme violence is rare, a total of 3 per cent of males

and 2 per cent of females (Laroche, 2005; Dutton, 2005). Female-initiated violence is

far more common than is asserted, and levels of severity of violence are similar (Stets

The discrepancy between meta-analytic findings and studies that report that

women are disproportionately the victims of severe violence is striking. Dutton

(2005) offers this explanation: almost without exception, the research literature

upon which many investigators found their assertions is based on samples drawn

from battered women’s shelters or from treatment groups for men who batter, and

expectation that rates of partner violence by men would exceed rates by women

stems from the sampling choices of previous studies.” Research based on self-selected

samples of extreme cases is highly problematic, as research conducted in women’s

shelters is typically vetted by feminist directives that preclude asking questions

about women’s role in the violence, as this is considered to be a form of “victim

blaming” (Dutton, 2005).

19

Unwarranted generalizing from non-representative samples creates the perception

that only men are abusers and only women are victims, and this becomes enshrined

in child custody policy and eventually in practice. If inter-parental conflict and

violence are conceived in a one-sided manner, with attention focused solely on the

possibility of abuse by a male perpetrator, child safety may well be compromised

(Dutton, 2005). In the arena of child custody, most cases of high conflict involve no

violence. When spousal violence does exist, it usually involves two violent partners,

and there are cases where the female partner is the primary or sole instigator of

violence (Dutton, 2005; Johnston and Campbell, 1993). Johnston and Campbell (1993)

offer a useful typology of cases of family violence in the context of child custody

disputes, including ongoing or episodic male battering, female initiated violence,

male controlling interactive violence, separation and divorce violence, and psychotic

and paranoid reactions. They conclude that mutual violence in the most common

type, with male battering (the classic “cycle of violence” paradigm) constituting less

than one-fifth of cases of violence.

Apart from interpersonal violence directed toward a partner, there also exists, in the

dominant discourse about male violence against “women and children,” erroneous

information about child abuse. A key source of data on child abuse in Canada is

the Canadian Incidence Study of Reported Child Abuse and Neglect 2003 (Trocme

et al., 2005), which indicates that the abuse of children is about equally perpetrated

are substantiated. The same holds true for other forms of abuse (Trocme et al., 2005).

The questionable claims of Jaffe et al. (2005, 2003) and Bala et al. (2007) have profound

20

partners. They may seek custody to engage in prolonged litigation, during which

their legal counsel and the court process mirrors the dynamics of the abusive

relationship.” Neither claim is supported empirically. Relatively few contested

child custody cases involve substantiated cases of child abuse, including the child

witnessing abuse of a parent; only one-quarter of child abuse allegations are

substantiated after investigation (Trocme et al., 2005). Yet the threat of losing one’s

children in a custody contest exacerbates and creates violence, as 40 to 46 per cent

of first-time severe violence occurs after separation, within the “winner take all”

sole custody system (Statistics Canada, 2004; Corcoran and Melamed, 1990). Whereas

in most cases in which there has been violence during cohabitation, conflict and

violence decrease after separation (with sole custody) (Spiwak and Brownridge, 2005),

in non-violence cases sole custody determinations are associated with increased

violence. Thus of great concern is the assertion that “an essential principle in the

high-conflict divorce arena is that joint custody and shared parenting are not viable

options” (Jaffe et al., 2005). In fact, joint physical custody is associated with lower

inter-parental conflict levels than sole custody, even in court-determined joint

custody (Bauserman, 2002), as a high-conflict case not involving violence has a much

higher likelihood of transforming into violence when one’s relationship with one’s

child is threatened by loss of custody. The sole custody regime elevates the risk of

spousal abuse, and elevates the number of children who witness the abuse.

Jaffe et al. (2006) do not discuss the application of the “child in need of protection”

standard to divorced families, as it is applied for non-divorced families, although

they suggest this approach in calling for a comprehensive child welfare assessment

in alleged cases of family violence where child custody is at issue. If this standard is

applied in a consistent fashion, the problem of violence in custody cases is effectively

addressed via investigations by trained professionals; without it, the current sole

custody framework will continue to increase the likelihood of violence in families

with no previous abuse. The call for judicial determination of custody in cases of

established family violence is sound; it is erroneous, however, to assume that “highconflict”

cases, where parents disagree on custodial arrangements for children after

separation, commonly involve serious family violence. This places children at risk of

losing one of their parents via sole custody, and increases the risk of family violence

in the majority of contested custody cases that did not previously involve violence.

Sole custody in cases where child abuse is not present is thus a flawed and dangerous

policy which has markedly increased the risk of post-separation violence in families

with no previous history of violence. The present system of judicial determination of

child custody is sound in cases where violence has been established. But it can and

does harm families with no previous child abuse or serious violence history.

Finally, suicide rates are reported to be of “epidemic” proportions among separated

and divorced fathers struggling to maintain a parenting relationship with their

children (Ksopowa, 2002); and “legal abuse” has been noted in non-custodial father

suicide cases (such as the widely reported case of Darren White). No studies have

examined the impact of legal abuse; that is, using a legal advantage to remove

a parent from a child’s life via sole custody, and subsequent parental alienation.

Uprooting children in this manner and alienating the parent may themselves be

forms of child abuse, as suggested by Justice Konigsberg of the B.C. Supreme Court

(commenting on the Gettliffe case).

In sum, where there are findings of severe family violence via criminal conviction or

a finding that a child is in need of protection from a parent, it may be appropriate,

as Jaffe et al. (2005) recommend, for one parent to have more limited, supervised,

or no contact with children because of potential harm to the children and the

spouse. In the absence of such a finding, however, sole custody as an approach

clearly poses serious risk to children and parents. In the absence of investigation

and clear determination of abuse and violence by the criminal court or child

protective services, the family court should not assume the role of adjudicating

conflicting allegations of abuse by the two parents. The majority of high-conflict

child custody cases do not involve family violence, although a high proportion do

involve unsubstantiated allegations of abuse. While parents with a proven history of

severe violence will need different resolutions, the majority of litigating parents in

conflict over the care and custody of their children are best served, in the interests of

prevention of severe violence, by a shared parenting approach to child custody.

22

4.Research on Canadian Child Custody Outcomes

The legal/judicial mode of child custody resolution may be seen as comprised of

three interrelated yet distinct elements: the adversarial nature of the legal model

itself, the actual practices of legal practitioners and the courts in regard to issues

of custody and access, and the experience of the participants themselves in the

process. It has been suggested that while the legal model in itself may be adversarial,

developments in divorce law have resulted in procedural changes to the extent that

the law as practised is not adversarial at all but administrative, or mediating. Others

argue, however, that while certain developments in divorce law, such as simplified

procedures, changes in the pattern of grounds for divorce, and “no-fault” divorce

have represented a movement away from an adversarial model, an adversarial

approach still forms the basis of procedure in matters of custody and access. With

the introduction of no-fault divorce, it is argued that child custody is left as the only

sphere in which “fault” is still relevant, where contested cases involve a prolonged

litigation process of filing suits and countersuits and represent “some of the most

volatile, hostile, and destructive transactions in court” (Coogler, 1978). In uncontested

cases, where judges may simply “rubber-stamp” decisions made prior to the court

hearing (an administrative function), the process of negotiation leading to such

decisions may be highly adversarial: the use of threats and counter-threats filed by

both parties in the form of affidavits and the behaviour of legal practitioners have

been associated with escalation of conflict. Finally, there is little question that the

participants in these processes experience legal resolution of custody and access

disputes as highly adversarial.

The history of child custody shows that court decisions have been guided by

presumptions that have varied over time, originating with a paternal presumption

that gradually changed over time to a maternal presumption in the nineteenth

century, through legislation such as the British Talfourd’s Act (1839), which allowed

mothers to petition for the custody of their young children and led to the judicially

developed maternal case law presumption called the “tender years doctrine,” which

23

held that young children should reside with their mothers (Millar and Goldenberg,

2004). This presumption appears to have been in place in Canada since at least

the beginning of the twentieth century, and remained in place until the formal

introduction of the “best interest of the child” standard through Canada’s second

Divorce Act (1986), whose wording reflects a careful consideration for gender

neutrality. Paradoxically, the new act coincided with a proportionally larger share

of cases of sole maternal custody, resulting from the introduction of social context

education of the judiciary that emphasized the unfairness to mothers of legal

custody outcomes (ibid.). Since 1986, a major expansion of family law has occurred,

with considerable reliance on parental gender for custody decisions, in the absence

of predictors of the “best interests of the child” (Millar and Goldenberg, 2004).

Canadian family law uses the “common law” legal tradition, which derives law from

both written statutes and from common law, also known as case law, precedent or

judge-made law (Boyd, 1995), allowing judges to make new rules for new situations as

they arise. Although child custody law derives from both legislation and precedent,

precedent is the stronger of the two. In this way, Canada has maintained a maternal

custody preference throughout most of its history, as the legal environment relating to

child custody has been mainly shaped and controlled through judge-made law, legal

concepts and presumptions developed though precedent rather than by legislation.

This is evident from data examining outcomes in contested child custody cases.

The latest data from Statistics Canada (2005, 2004), which examines divorce and child

custody outcomes from 2003 and 2002, indicate that 38 per cent of all marriages are

likely to end in divorce before the thirtieth wedding anniversary. In cases involving

dependent children, in 2003 (based on Central Registry of Divorce Proceedings data

on court orders), custody was awarded to mothers in 49.5 per cent of cases, joint

custody to both parents in 41.8 per cent of cases, and to fathers in only 8.5 per cent of

cases (Statistics Canada, 2005). It should be noted that these cases exclude commonlaw

parents, and that a decree of “joint custody” is often made with “principal

residence” with one parent only, meaning that joint decision-making without

physical shared custody is awarded. Further, to say that “joint custody was awarded”

in 41.8 per cent of cases is somewhat misleading, as this statistic includes “judge

24

ratified” non-contested custody cases (those decisions made by parents themselves

and “rubber-stamped” by a judge). This statistic comprises all “custody arrangements

that were part of the divorce judgment,” which includes a majority of cases which

are mere ratifications. These are not all litigated cases of child custody.

What is interesting about these statistics, however, is the decrease in sole maternal

outcomes and joint custody outcomes in court orders. Again, most of these joint

custody outcomes are in non-contested cases ratified by the court, where parents

have themselves decided on joint custody. Joint custody has been steadily increasing

in non-litigated cases in Canada, which reflects the emerging norm in two-parent

families of shared parental responsibility as, in the great majority of cases, both

parents are employed outside the home.

Even though shared caregiving has emerged as a norm in two-parent families, and

this is reflected in the huge increase in joint physical custody arrangements in nonlitigated

divorce cases, joint custody is virtually non-existent in judge-adjudicated

cases. For many years, the vast majority of contested or litigated custody awards

have been made solely to mothers (Millar and Goldenberg, 2004). It has been argued,

however, that in more than 95 per cent of cases, it is the family and not the court that

determines who will have custody of the children. The great majority of child custody

decisions are made out of court; only a small percentage of parents fail to reach an

agreement and are brought to trial (Department of Justice, 1990). In the vast majority

of cases, the court appears simply to ratify the existing arrangements made by the

parties. Thus Polikoff (1982) argues that most children remain with their mothers

by the mutual consent of the parents: “The final court award, rubber stamping the

arrangement of the parties themselves, does not reflect a bias on the part of the court

system toward mothers because the court system plays an entirely passive role.”

Outcomes in contested child custody cases, however, suggest that such “parental

agreements” may not be as uncontentious as is generally assumed. Contested case

outcomes are instructive inasmuch as they inform how lawyers advise their clients

in potential child custody cases. Although reasons for judgment in contested cases

reflect a wide range of views among judges as to what constitutes “the best interests

25

of the child,” a scrutiny of contested cases of child custody provides an explanation

for the relatively low levels of legally disputed custody cases. Canadian courts,

according to the latest court file analysis data, continue to grant maternal custody

in the majority of contested cases. The Evaluation of the Divorce Act (Department of

Justice, 1990) found, in an analysis of the 1988 court file data, that where there was a

trial, custody was awarded to mothers in 77 per cent of cases and to fathers in only

8.6 per cent. The evaluation report concluded that, “where fathers were granted

sole custody, this was almost invariably because the mother did not want or could

not cope with the custody of the children,” and “there has been no appreciable or

consistent change in the basic patterns of awarding sole custody since at least the

early 1970s . . . [although] what does seem to have changed since the 1970s is that in

the late 1980s, men are less likely to receive sole custody when they request it or it is

disputed than was previously the case” (my emphasis). Finally, the evaluation found

that the reason that sole custody is the norm in court-determined arrangements

is that joint physical custody is seen to be unworkable by the judiciary for parents

who disagree on parenting arrangements. Sole custody is regarded by judges to be in

children’s best interests in litigated cases.

The impact of judicial decisions in contested cases goes well beyond the cases

themselves. They define legal norms and form the basis of a body of law upon

which others are advised, including the bulk of “uncontested” cases where fathers

want at least joint custody but “settle” for access (Kruk, 1993). “Bargaining in the

shadow of the law” refers to legal negotiations framed and shaped by the perception

of the parties of what results might be achieved if they resorted to greater legal

involvement. Although the majority of court orders for child custody are “consent”

orders (and included by Statistics Canada as court determinations), this should not

imply that these orders are entered into freely (Millar and Goldenberg, 2004).

The fact that there has been little national family court or family justice data

available, from 1988 until the present, is problematic. This lack of research is at least

in part due to judicial resistance to non-court sanctioned research by academic

scholars. However, recent unpublished research of Ontario Court of Appeal

judgments (Jenkins, 2006) provides evidence indicating that when children are

living with their mothers at the time of the Court of Appeal child custody hearings,

it is extremely rare for the courts to upset the status quo. When they are living with

26

their fathers the status quo is not such a potent force. According to Jenkins, the

“mother-factor” generally outweighs the “status quo” consideration: courts are more

likely to disturb the status quo when children are living with their father.

Studies in the United States (Fox and Kelly, 1995; Maccoby and Mnookin, 1988)

consistently point to gender stratification within the custody award process, with

sole maternal custody being awarded in jurisdictions with a similarly indeterminate

“best interests of the child” standard as in Canada.

The National Longitudinal Survey of Children and Youth (NLSCY), which tracks a large

sample of Canadian children as they grow up, utilizes data from parents themselves,

although the “person most knowledgeable” about the child is surveyed and, more

than 90 per cent of the time, this person is a woman, in most cases the mother of the

child. In addition, mothers’ and fathers’ perceptions of child custody differ markedly

(LeBourdais et al., 2001). NLSCY data track both married and co-habiting couples, as

the proportion of children born to co-habiting couples in Canada is now 22 per cent

(Juby et al., 2004). Data reveal that by the age of 15, 30 per cent of Canadian children

born to a couple in the early 1980s had experienced their parents’ separation,

and shared parenting is much more frequent when settled outside the court. The

NLSCY found that the proportion of children in non-litigated post-separation joint

custody arrangements has increased markedly (ibid.). However, the study also found,

consistent with Maccoby and Mnookin (1992), that custody and access arrangements

put in place when parents separate are far from static, evolving in response to

developments in the lives of the individuals involved, the most conspicuous change

being the declining proportion of children in shared custody, from 8 to 1 per

cent. However, this did not necessarily mean less contact with the father, since

approximately 40 per cent were living with the father full-time at the end of the

two-year period separating the cycles of the study. The fact of the reported change

from joint to sole custody did not, the authors concluded, hinder the continued longterm

involvement of both parents after separation. Shared custody, even for a limited

period, is associated with the continued long-term involvement of both parents in

children’s lives (Juby et al., 2004).

27

5.Child Custody Legislation in Canada

Legislative responsibility for child custody and access in Canada is shared among the

federal, provincial and territorial governments. The federal Divorce Act applies in divorce

proceedings when custody and access are at issue, although custody and access issues

may also be resolved under provincial legislation. Provincial and territorial statutes

govern non-divorce cases that fall within provincial constitutional responsibility,

including separation proceedings involving custody and access. The provinces and

territories also deliver programs and services that support separating and divorcing

parents, although the federal government co-funds some of these programs.

This section will provide an overview of federal and provincial statutes respecting

child custody and access, with a focus on implications for post-divorce paternal

involvement. It begins with a brief overview of articles of the U.N. Convention on

the Rights of the Child that are pertinent to child custody.

The 1989 U.N. Convention on the Rights of the Child, according to legal scholar

Barbara Woodhouse (1999), was the most rapidly and universally accepted human

rights document of the past century. Within a decade after its promulgation, it

had been ratified by every nation but two. Canada is a signatory. The Convention’s

philosophy is embodied in Article 3: “In all actions concerning children, whether

undertaken by public or private social welfare institutions, courts of law,

administrative authorities, or legislative bodies, the best interests of the child shall

be a primary consideration.”

In addition, the UN Convention, in Article 5, emphasizes the primacy of parents

in their children’s lives (“States Parties shall respect the responsibilities, rights and

duties of parents…”) and in Article 9 (“States Parties shall ensure that a child shall

not be separated from his or her parents against their will, except when competent

28

authorities subject to judicial review determine, in accordance with applicable law

and procedures, that such separation is necessary for the best interests of the child”).

Two key principles underlying the Convention are that parents have the primary

responsibility for nurturing children, and the role of governments and communities

is to support children and their families; these are both seen to be “in the best

interests of children.”

Article 19 of the Convention refers to needed measures to protect children from all

forms of violence, injury or abuse, neglect, maltreatment or exploitation—and it

refers to actual violence and maltreatment, not risks of violence and maltreatment.

To remove child custody from a parent because of “risk” rather than proof of harm

is not in keeping with the Convention. Article 12 states that the views of the child

be given due weight in accordance with the age and maturity of the child, on all

matters affecting the child. Finally, Article 8 stipulates the child’s right to preserve

his or her identity, as all children are entitled to have their human rights respected,

including children of separation and divorce.

In keeping with the U.N. Convention, federal divorce legislation holds the “best

interests of the child” as the paramount criterion in determining post-separation

parenting arrangements, trumping even constitutional provisions. The Divorce

Act, however, uses the terms custody and access to describe post-separation parenting

arrangements. Custody includes “care, upbringing and any other incident of custody.”

Access is not specifically defined. Either or both spouses, or any other person, may

29

consideration the willingness of the person for whom custody is sought to facilitate

such contact” (the so-called “friendly parent” rule).

Although the Divorce Act identifies “the best interests of the child” as the sole

criterion in child custody determination and reflects the primacy of parents in the

child’s life, it does not identify the specific “needs and other circumstances of the

child” that must be considered in determining custodial arrangements, and thus the

standard remains indeterminate and subject to judicial discretion. In addition, no

mention is made of the primacy of both parents in the child’s life.

A custody determination pursuant to divorce is not so much a decision to award

custody, but a decision regarding from whom to remove it (Millar and Goldenberg,

2004).

Provincial and territorial child and family legislation relevant to child custody

and access includes the British Columbia Family Relations Act (Section 24), Alberta

Family Law Act (Section 17.1), Saskatchewan Children’s Law Act (Sections 8 and 9),

Manitoba Family Maintenance Act (Section 2.1), Ontario Children’s Law Reform Act

(Sections 19-24), Quebec Civil Code (Article 33), New Brunswick Family Services Act

(Section 129); Nova Scotia Maintenance and Custody Act (Section 18); Prince Edward

Island Custody Jurisdiction and Enforcement Act (Section 8.1); Newfoundland

Children’s Law Act (Section 31); Yukon Children’s Act (Sections 29 and 30); Northwest

Territories Children’s Law Act (Section 18); and Nunavut Family Law Act (Section

8). All cite “the best interests of the child” as the sole criterion in child custody

and access determination, yet provide minimal indicators of these best interests,

and neither are “custody” and “access” clearly defined. The following criteria are

considered in each province to determine “best interests.”

British Columbia: the health and emotional well-being of the child including any

guardianship, custody or access rights and duties may be granted to exercise these

rights and duties adequately.

Alberta: welfare of the minor; the conduct of the parents, and the wishes of the

Manitoba: the views and preferences of the child where appropriate.

Ontario: the love, affection and emotional ties between the child and, (i) each person

Quebec: the moral, intellectual, emotional and material needs of the child,

New Brunswick: the mental, emotional and physical health of the child and his need

31

the child of any disruption of the child’s sense of continuity; the love, affection

and ties that exist between the child and each person to whom the child’s custody

is entrusted, each person to whom access to the child is granted and, where

appropriate, each sibling of the child, and, where appropriate, each grandparent of

the child; the merits of any plan proposed by the Minister under which he could

be caring for the child, in comparison with the merits of the child returning to or

remaining with his parents; the need to provide a secure environment that would

permit the child to become a useful and productive member of society through the

achievement of his full potential according to his individual capacity; and the child’s

cultural and religious heritage.

Nova Scotia: the welfare of the child is the paramount consideration.

Prince Edward Island: the child’s views and preferences.

Newfoundland: the love, affection and emotional ties between the child and, i) each

Yukon: the bonding, love, affection and emotional ties between the child and, i) each

32

any plans proposed for the care and upbringing of the child; the permanence and

stability of the family unit with which it is proposed that the child will live; and the

effect that awarding custody or care of the child to one party would have on the

ability of the other party to have reasonable access to the child.

Northwest Territories: the welfare of the child; the conduct of the parents; and the

regime also applies to custody. The Family Relations Act thus removes joint parenting

33

typically award custody to one parent and joint guardianship. In B.C. Provincial

Court, for unmarried parents, courts make custody orders under the federal Divorce

Act. In B.C. Supreme Court hearings, for married parents, a custody order made under

the Family Relations Act gives the custodial parent guardianship of the child as well,

unless the court decides otherwise. However, frequently a Family Relations Act claim

for guardianship is joined with the Divorce Act proceeding so that the court can make

to more than one parent, de facto sole custody arrangements continue to prevail. In

34

mentioned, may apply to a court for an order respecting custody of or access to the

child (neither is defined). In Nova Scotia, the legislation states that the father and

mother of a child are joint guardians and are equally entitled to the care and custody

of the child unless otherwise provided by the Guardianship Act or ordered by a court,

yet legislation also defines guardian as a head of a family and any other person who

has in law or in fact the custody or care of a child; a parent, in the case of a child of

unmarried parents, is a person who has been ordered by a court of any law district to

pay maintenance for the child. In the Northwest Territories, legislation provides that

a father and mother of a child are equally entitled to custody, but also states that the

right of a parent to exercise the entitlement and incidents of custody are suspended

until an agreement or order provides otherwise when the parents are living separate

and apart and the child lives with the other parent or the parent has consented

(expressly or by implication) or acquiesced in the other parent having sole custody

of the child. In Nunavut, the father and the mother of a child are equally entitled to

custody, with the right of a parent to exercise the entitlement to custody of a child

being suspended until a parental or separation agreement or a court order otherwise

provides where “(a) the parents of the child live apart and the child lives with the

other parent; and (b) the parent has consented, either expressly or by implication, or

acquiesced to the other parent having sole custody of the child.” In P.E.I., legislation

provides that except “as otherwise ordered by a court, the father and the mother

of a child are joint guardians of a child and are equally entitled to custody of the

child,” but again, the custodial rights of “the parent with whom the child does not

reside” are suspended until an agreement or court order provides otherwise. In

Quebec, custody may be awarded to either parent or a third party, but the custodial

parent has the right to determine the residence of the child and make the day-to-day

decisions, and the non-custodial parent “retains the right to participate in major

decisions about the child’s upbringing as a consequence of the exercise of parental

authority.” The Civil Code uses the terms parental authority and custody and,

although neither is specifically defined, parental authority is a much broader concept

and includes the full range of parental rights and duties. In Saskatchewan custody

means personal guardianship of a child and includes care, upbringing and any

other incident of custody having regard to the child’s age and maturity, but access

is not defined by the act. The authority to make major decisions regarding health,

education and religion rests with the custodial parent. When making, varying or

rescinding an order for custody or access of a child, the court shall have regard only

35

for the best interests of the child. Unlike other provinces, Saskatchewan includes a

list of considerations in determining “the best interests,” and joint custody is one

option available to the court. Yukon has a rebuttable presumption of sole custody:

that the court “award the care of the child to one parent or the other and that all

other parental rights associated with custody of that child ought to be shared by the

mother and the father jointly.” Although “the father and the mother of a child are

equally entitled to custody of the child,” joint custody is not an option. “Custody”

and “care” are defined in the legislation, but “access” is not.

Courts in all provinces continue to award child custody to one parent only in the

great majority of cases, despite the legal recognition that when both parents reside

together, custody is held equally by both of them. Sole physical custody (or “primary

residence”) to one parent and access to the other is the normal court practice across

all provinces, including litigated cases designated as “joint custody.” Seven provinces

have implemented a unified family court system to deal with matters of child

custody and access after parental separation and divorce.

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6. Government Research Reports on and

The majority of custody and access policy research papers and reports of the

Canadian federal government, as well as of some provincial governments, have

neither sought to clarify the “best interests of the child” standard nor have

addressed the issue of children’s need for both parents after divorce. Most have

focused to a much greater degree on the issue of child support. Above all, federal

and provincial/territorial reports expressly endorse the need for judicial discretion

in custody and access determination. The Federal-Provincial-Territorial Report on

Child Custody and Access, for example, recommends that “legislation not establish

any presumptive model of parenting after separation, nor contain any language

that suggests a presumptive model.” Despite empirical support for shared parental

responsibility, federal and provincial reports on child custody and access have fallen

short of recommending a rebuttable legal presumption of joint physical custody or

shared parental responsibility and encouraging equality between parents in regard

to parental status.

Much of the focus of government reports on child custody and access has been on

the need for additional training for judges in family law matters, and the expansion

of support services for parents, while recommending leaving judicial discretion

regarding the “best interests of the child” and the present sole custody framework

intact. Although additional training for judges is often recommended, the source

and nature of the training is not addressed. Few if any reports have offered

discussion about refining or clarifying what is meant by a child’s “best interests,”

despite the views of legal commentators such as Bala (2000) who have found that the

indeterminacy of the “best interests of the child” criterion renders it “almost useless”

in child custody proceedings. No reports have asked, “What are the core needs of

children during and after the divorce transition, the responsibilities in addressing

these needs, and the responsibilities of social institutions to support parents in the

37

fulfillment of their parental responsibilities?” It seems legitimate to question why

a matter as important as the best interests of children remains subject to judicial

discretion, as judges are not trained in child development or family dynamics.

A plethora of federal government reports on child custody and access have been

completed over the years, and occupy several shelves in the National Library. The

most comprehensive research-based report done to date, however, the Special House

of Commons Senate Joint Committee on Child Custody and Access (1998) report, For

the Sake of the Children, more than any previous examination, sought to assess current

38

In sum, the Joint Committee found that the current Divorce Act requires revision in

a number of key areas. A new act, according to the Committee, should assume the

existence of two-parenting households and reflect shared responsibility. It should

also take into account the importance of grandparents, siblings and other extended

family members in children’s lives. Family mediation should exist alongside rather

than replace the legal system. Attending at least one confidential mediation session

should be mandatory; indeed, the Committee stressed that the law should affirm

that mediation and other methods of dispute resolution be the first choice in cases of

marital breakdown.

It was noted that for the recommendations of the Joint Committee to be realized,

the federal and provincial governments must commit adequate resources to run

parent education programs, offer family mediation and clarify the “best interests

of the child,” particularly in regard to the involvement of both parents in children’s

lives. Finally, lawyers, judges and mediators should see themselves as parts of a single

team, co-operating to help divorcing parents formulate workable and effective

parenting plans.

In response to the Special Joint Committee report, the Federal-Provincial-Territorial

Family Law Committee report, Putting Children First (2002), set out a list of guiding

principles for the reform of child custody and access law. This report, inasmuch as

it focused on the essential needs of children in the divorce transition, establishes

guidelines for the development of a new approach to child custody determination,

as follows: (1) ensure that the needs and well-being of children are primary; (2)

promote parenting arrangements that foster and encourage continued parenting

responsibilities by both parents, when it is safe to do so; (3) provide clarity in the

law with respect to specific factors of what is in “the best interests of the child”; (4)

promote alternative dispute resolution mechanisms to allow conflicts to be resolved

in a non-adversary forum and cooperative fashion; (5) ensure that conflicts are

resolved in an accessible, fair and timely manner; and (6) encourage the participation

of extended family and grandparents in the child’s life, when it is safe to do so.

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Also in 2002, Justice Canada embarked on a Child-centred Family Justice Strategy.

The purpose of the strategy is to help parents focus on the needs of their children

following separation and divorce. It is composed of three pillars: family justice

services, legislative reform, and expansion of Unified Family Courts. The strategy

proposes that the “best interests of the child” principle be reaffirmed and

strengthened by adding a list of best interest criteria to the Divorce Act, as follows:

• the child’s physical, emotional and psychological needs, including the

• the benefit to the child of developing and maintaining meaningful

• the history of care for the child;

• any family violence, including its impact on:

• the safety of the child and other family members,

• the child’s general well-being,

• the ability of the person who engaged in the family violence to care for

• the appropriateness of making an order that would require the spouses to

• the child’s cultural, linguistic, religious and spiritual upbringing and

• the child’s views and preferences to the extent that those can be

• any plans proposed for the child’s care and upbringing;

• the nature, strength and stability of the relationship between the child

• the nature, strength and stability of the relationship between the child

40

• he order would apply to care

• the ability of each person in respect of whom the order would apply to

• any court order or criminal conviction that is relevant to the safety or wellbeing

41

best interests of the child. The terms “custody” and “access” would be removed from

the law and replaced with the term “shared parenting.” This option would utilize a

“parenting plan” approach to allocate parental responsibilities, and would legislate a

shared parenting presumption in disputed cases, unless not in the best interests of

the child.

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7.International Child Custody Policy

A number of jurisdictions are, like Canada, presently considering the revision of their

family law statutes, with a particular emphasis on the reform of custody and access

legislation. Those chosen for review here are the United States, United Kingdom,

France, Sweden and Australia.

Some U.S. states are well advanced in the reform of their child custody and access

laws and policies, as child custody is under state, not federal, jurisdiction. More

socially progressive states have advanced new child custody and access laws. At least

six states have now enacted some form of legal joint physical custody presumption

(substantially equal shared custody or similar language). These include Iowa (“If joint

legal custody is awarded to both parents, the court may award joint physical care to

both joint custodial parents upon the request of either parent. If the court denies the

request for joint physical care, the determination shall be accompanied by specific

findings of fact and conclusions of law that the awarding of joint physical care is not

in the best interest of the child”), Kansas (“joint physical custody is the first order of

preference”), Oklahoma (“the court shall provide substantially equal access to both

parents . . . unless the court finds that such shared parenting would be detrimental

to the child. The burden of proof that such shared parenting would be detrimental

to the child shall be upon the parent requesting sole custody”), Texas (where the

Family Code contains a presumption of “joint conservatorship,” which provides a

minimum of 42 per cent time with the non-custodial parent and by exercising

other parts of Texas statutes, the time allocation may be extended to 50 per cent),

Wisconsin (“the court shall presume that joint legal custody is in the best interest

of the child”), and Arkansas (“when in the best interests of the child, custody shall

be awarded . . . to ensure the frequent and continuing contact of the child with

both parents”). The U.S., however, is a study in contrasts in the area of custody and

43

access legislation: 20 other states include “frequent and continuing contact with

both parents,” or similar language, 2 utilize case law, 3 have only a preference for

joint legal custody, 7 presume joint custody when both parents agree, and 13 have no

statutes that promote shared parenting.

Washington State: in this state’s legislation, the primary tool used to structure postseparation

and providing financial support for the child. Since the passage of the Washington

State Parenting Act in 1987, research studies indicate that, while there appears to be

New York State: at present, New York State has no statutory language promoting

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parent requesting sole custody. Most important, say proponents, is that the bill

recognizes that the alleged primacy of maternal influence in the lives of children

is an unbalanced perspective and not in children’s best interests, and the bill

communicates that both parents are of equal status in the eyes of the law.

Michigan: the Bill to Amend the Child Custody Act simply amends the Child Custody

California: on the other end of the spectrum, although “frequent and continuing

Wisconsin: AB 400, which recently passed the Wisconsin Assembly, will help safeguard

North Dakota: a ballot initiative on shared parenting was approved recently by the

Massachusetts: in the Massachusetts state ballot in the 2004 U.S. federal election, 85

45

the question was whether voters would ask their state representative to “vote

for legislation to create a strong presumption in child custody cases in favour of

joint physical and legal custody, so that the court will order that children have

equal access to both parents as much as possible, except where there is clear and

convincing evidence that one parent is unfit, or that joint custody is not possible due

to the fault of one of the parents.”

The Children’s Act (1989), which came into effect in 1991, replaced the terms

“custody” and “access” with the terms “parental responsibility,” “residence” and

“contact.” The central feature of the United Kingdom model of post-separation

parenting is the notion of “parental responsibility.” The act replaces the old custody

and access order with four types of orders: residence orders, contact orders, specific

issues orders, and prohibited steps orders. Essentially, the Children’s Act changes the

legal language of divorce.

The act declares that “the welfare of the child is paramount” in family law and

the child’s welfare is “best served by maintaining as good a relationship with both

parents as possible.” Toward this end, “shared residence should be the common form

of order.” Yet there is no presumption of shared parenting or joint physical custody

made in the act, and court-determined outcomes, despite the act’s encouragement

of the child’s maintaining a relationship with both parents, reflect in practice a

maternal preference presumption. Although the act has provided for the option of

shared parenting, this is not being applied consistently and judicial discretion still

leans toward the “tender years” doctrine and sole custody as being in children’s best

interests.

As a critical tool in reducing conflict between parents and thereby ensuring better

outcomes for children, the Children’s Act stresses the importance of services

geared toward parent education in the divorce process; this is referred to by some

as “divorce gospel style” (Freeman, 1997). Research indicates that the act has not

succeeded in reducing litigation concerning custody and access. Clearly, parent

education and language changes in themselves will have limited positive effects.

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With respect to children, the principle of gender equality is enshrined in virtually

all statutes in France, a country with a civil law tradition. In recent years, France has

undertaken a significant reform of its family law. While seeking to consider more

effectively the diversity of family situations, the notions of “parental responsibility”

and “parental authority” are central in its recent family law reforms which seek

to “humanize and pacify divorce proceedings, in order to provide parents with

better support and to create conditions for an organization responsible for the

consequences of the parents’ separation for the children.”

Law No. 2002-305 concerning parental authority, introduced in 2002, has been adopted

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France was also the site of the Langeac Declaration of family rights and equal

parenting, signed in July 1999 by parents’ group representatives from around the

world. The declaration emphasizes that equal parenting laws should not be lengthy,

intricate or inaccessible to parents and children.

A distinctive feature of Sweden’s Children and Parents Code is its emphasis on

parents having joint responsibility for their children, and one of the aims of

recent amendments to the legislation has been to pave the way for more frequent

application of joint custody. The court has the power to order joint custody against

the wishes of the parents; the court can decide on joint custody or refuse to dissolve

joint custody even though one of the parents may be opposed. Joint custody against

the will of one of the parents is precluded if the other parent is subjecting a member

of the family to violence, harassment or other abusive treatment. Above all else, the

court must take particular account of the child’s need for “close and good contact

with both parents.”

In Australia, discussions about joint custody and shared parental responsibility have

been at the forefront of proposed family law changes for the past decade. Despite

new family law legislation in 1995, modeled largely on the U.K. Children Act 1989, it

has been recognized that merely cosmetic changes, such as “primary residence”

and “parental responsibility” taking the place of “custody,” and “contact” replacing

“access,” are insufficient. The act did not meet its objective of decreasing litigation

and conflict in family matters.

Despite reports that cite Australia as a failed example of a shared parenting or

joint physical custody presumption, Australia has only recently opted to move

toward a true shared parental responsibility approach. The report of the House of

Representatives Standing Committee on Family and Community Affairs, Every Picture

Tells a Story, was tabled in 2003, and contained the following recommendations:

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family violence, substance abuse, or established child abuse); (2) require mediators,

counsellors and legal advisers to assist parents to develop a parenting plan; (3) require

courts and tribunals first to consider substantially shared parenting time when

making orders in cases where each parent wishes to be the primary caregiver; (4)

replace the language of “residence” and “contact” with “parenting time;” (5) create

a network of Family Relationship Centres across the country to provide alternative

dispute resolution services. In response to the report’s recommendations, the Family

Law Amendment (Shared Parental Responsibility) Bill 2005 was introduced and

underwent final revisions before implementation.

The Family Law Amendment (Shared Parental Responsibility) Bill 2005 was

enacted in March, 2006. The law provides a presumption of equal shared parental

responsibility for parents, and requires courts to consider equal time in the first

instance in parenting disputes after separation and divorce. The bill was designed,

along with a proposed national network of Family Relationships Centres, to avoid

litigation as the means of arriving at arrangements for the parenting of children

after separation. Its principal revision to the former Family Law Act is not only the

establishment of shared parental responsibility as a rebuttable presumption, but

also a stated recognition that this is in the best interests of children after parental

separation and divorce. The main provisions of the new act are: (1) in implementing

shared parental responsibility, the court will first consider “equal parenting time”

and, if that is not feasible, then “substantial and significant parenting time with

both parents” (considerations in this regard include geographical proximity of the

parents, parenting capacity for equal time, parental communication capacity, and

impact in the child); (2) the “best interests of the child” are comprised of “primary”

and “additional considerations”; primary: the child having a meaningful relationship

with both parents, and the need to protect the child from physical and psychological

harm, abuse or family violence; additional: the child’s expressed views, and the

relationship of the child with other persons, including grandparents and other

relatives; (3) the obligation to attend family dispute resolution before a parenting

order is applied for; (4) exempt are cases where there are reasonable grounds to

believe that there has been abuse of the child or family violence.

The new law also requires monitoring of Australian family courts in making shared

parenting orders.

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8.Child Custody Policy Debates

As reflected in government reports prepared by legal scholars, the Canadian legal

community rarely supports shared parenting (Cohen and Gershbain, 2000), although

this lack of support is largely based on outdated assumptions about mothers as

primary caregivers, children’s well-being after separation being served by sole

custody, and joint custody being inappropriate in “high-” litigated cases. Much of the

social scientific research, however, has supported socio-legal reform in the direction

of joint physical custody, and developments in foreign jurisdictions have favoured

shared parental responsibility.

Because of conflicting allegations of abuse in “high-conflict” cases, it is difficult for

family court judges to determine, beyond a reasonable doubt, the actual presence of

abuse, as is done in criminal court. A major problem is that “family courts” routinely

award sole custody on the basis of unproven allegations (Millar and Goldenberg, 2004).

The sole custody model has, surprisingly, come under relatively little scrutiny in

Canadian government reports: “It is ironic,” writes Joan Kelly (1991), “and of some

interest, that we have subjected joint custody to a level and intensity of scrutiny that

was never directed toward the traditional post-divorce arrangement (sole legal and

physical custody to the mother and two weekends each month of visiting to the

father). Developmental and relationship theory should have alerted the mental

health field to the potential immediate and long-range consequences for the child

of only seeing a parent four days each month. And yet until recently, there was

no particular challenge to this traditional post-divorce parenting arrangement,

despite growing evidence that such post-divorce relationships were not sufficiently

nurturing or stabilizing for many children and parents. . . There is evidence that in

our well-meaning efforts to save children in the immediate post-separation period

from anxiety, confusion, and the normative divorce-engendered conflict, we have

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set the stage in the longer run for the more ominous symptoms of anger, depression,

and a deep sense of loss by depriving the child of the opportunity to maintain a full

relationship with each parent.”

Herein lies the crux of current child custody and access policy debates. It has

somehow come to be regarded as developmentally “correct” to award sole custody

to one parent, usually the mother, with twice-monthly weekend access “visits” with

the other parent, usually the father. Yet there is overwhelming evidence that such an

arrangement disregards children’s physical, psychological and social needs for both

parents in their lives.

The focus of current child custody debates is on the contested cases where courts

impose a sole custody criterion. The rights-based claims of mothers’ and fathers’

rights groups in this realm have led to an impasse and a state of confusion as to

what exactly is “the best interests of children” in divorce (Mason, 1994). Judges

have consistently awarded sole custody in contested cases, but their reasons for

judgment – their interpretations of “the best interests of the child” standard

– vary tremendously (ibid.). The high potential of judicial bias in child custody

disputes results from the fact that judges are not trained in the finer points of child

development and family dynamics (Woodhouse, 1999).

In Canada, as in most U.S. jurisdictions (Mason, 1994), judges have asserted that

shared parenting is unworkable in situations where parents cannot cooperate

(Department of Justice Canada, 1990). To the degree that a “winner-take-all” sole

custody approach is established, the adversarial system polarizes and disconnects the

parties in dispute, and the problem of judicial bias in the direction of sole custody or

“primary residence” determinations remains unaddressed.

Much of the current child custody debate focuses on whether to leave the present

sole custody and adversary system essentially intact and institute a range of reforms

within that structure, or to restructure completely the way child custody and access

is determined and examine alternatives to sole custody and adversarial resolution.

With respect to the former, three approaches have been tried both domestically and

internationally: introduce (mandatory) parent education programs; change the legal

language to make it appear less adversarial; and add more programs and professional

services, such as family law judges and family courts, mediation, and collaborative law.

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The purpose of parent education, or “divorce gospel-style” (Freeman, 1997), is to

encourage or mandate parents into divorce education programs, to emphasize the

importance of children’s well-being during the divorce transition, and to explain

the divorce process. The weakness of such programs, however, is that they have

relatively little impact on couples in conflict over the post-separation parenting

of their children (Braver et al., 1996); the U.K. experience bears this out. Changing

the legal language to make it appear less adversarial has similarly had little effect

in jurisdictions such as Australia and the U.K., as well as in Washington State

(with its “parenting plan” approach to child custody), where it has been shown

that changing language alone does not change people’s behaviour. And more

programs and professional services are also not the answer; despite the burgeoning

“divorce industry,” the provision of more programs has not reduced inter-parental

conflict in divorce (ibid.). None of these reforms have lessened the adversarial

climate surrounding child custody, nor have they addressed the problem of

judicial discretion in an area where judges lack the necessary knowledge of child

development and family systems theory to begin to address complex child and

family matters.

It is clear that an alternative approach is needed that goes beyond “cosmetic” family

law reforms toward fundamental changes in divorce law, policy and practice.

Clear rules and guidelines are needed to limit judicial discretion and to lessen the

adversarial climate that exacerbates parental conflict in divorce. Four options have

been advanced in this regard. First is the primary caregiver presumption, which

would give a priori preference to the parent who is designated as primary in the

child’s life, usually defined as the parent who is providing more of the daily care

of the children. This position is based on the traditional role of mother as the sole

or primary caretaker of children. Although touted as a gender-neutral standard,

the primary caregiver presumption is essentially a sole custody presumption as it

assumes the presence of one “primary” parent, which does not reflect the reality of

most North American families with children (Warshak, 1992). Although some argue

that, in cases of shared care in the two-parent family, two primary caregivers may

be recognized by the court, the pattern of sole custody awards in litigated cases

remains intact in Canada, despite the emergent trend of shared care in two-parent

families. Further, child development research has demonstrated that children

form strong and “primary” attachment bonds with both parents, even when

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caregiving is not equally shared; both mothers and fathers are salient individuals

in their children’s lives, and have a unique role to play in their development. Upon

divorce, this is reflected in children’s persistent yearning for their absent fathers; a

critical factor in children’s positive post-divorce adjustment is the maintenance of

ongoing and meaningful relationships with both parents. The biggest problem with

the primary caretaker presumption, however, is how one determines who is the

“primary” parent? What is the basis for distinguishing “primary” versus “secondary”

parenting? We cannot simply equate the amount of time a parent spends with the

child with that parent’s importance in the child’s life. As Warshak (1992) asks, is the

primary parent the parent who does the most to foster the child’s sense of security,

the person the child turns to in times of stress, the role that we most often associate

with mothers? Or is it the parent who does the most to promote the child’s ability

to meet demands in the world outside the family, to make independent judgments,

the role that we most often associate with fathers? The emergent view among child

development theorists is that in the majority of Canadian families, we have no basis

for preferring one contribution over the other; both parents have a unique and

“primary” contribution to make.

A second child custody law reform option is the “approximation standard,” whereby

the caregiving status quo prior to separation would prevail in contested cases. This

approach sets out a legal expectation that post-separation parenting arrangements

reflect pre-separation parenting patterns, an arrangement endorsed by the American

Legal Institute. Critics have pointed to the difficulty of establishing the degree

of child-care involvement by parents prior to separation, as judges would tend to

focus on childcare arrangements in the immediate past, which may result from one

parent withholding the child from the other parent to establish a new “status quo.”

Critics also note that litigation rates would likely not decrease with such a formula.

However, to the degree that the approximation standard seeks to maintain stability

in children’s relationships with their parents, it does have merit, and could serve

as a useful guideline for parents seeking to minimize disruption in their children’s

routines following separation and divorce.

Third, a joint legal custody presumption has been advanced whereby parents would

share decision-making responsibility for, but not necessarily physical care of, their

children after separation. Feminist scholars (Polikoff, 1982) have pointed to the

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inequity and power imbalance that may result in giving one parent decision-making

authority over their child (and former spouse) without any corresponding obligation

for child care. In fact, this approach is routinely applied as Canadian courts grant sole

physical custody with joint decision-making authority in contested cases. Some noncustodial

parents have characterized this approach as “joint custody in name only,”

as their primary interest is their children’s need for both parents being involved as

caregivers in their lives (Kruk, 1993).

The fourth option, shared parental responsibility (rebuttable presumption of joint

physical custody), however, would grant both parents equal or shared decisionmaking

authority and child-care responsibility. This option appears to be the most

viable alternative to the sole custody model, which overcomes the main limitations

of the three approaches discussed above.

It is generally agreed that any reform of child custody law must ensure that

children’s basic needs and “best interests” are addressed effectively. This requires an

understanding of children’s fundamental needs in the divorce transition, and the

development of a corresponding set of parental and societal responsibilities to meet

those needs. A new standard of “the best interests of the child” from the perspective of

the child is needed, particularly with respect to what children have identified as their

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all general and divorce-specific adjustment measures (Bauserman, 2002). At the same

time, western societies are moving toward a more egalitarian distribution of child-care

tasks between the genders (Marshall, 2006; Higgins and Duxbury, 2002; Bianchi, 2000).

In addition, fundamental to divorce and child custody law reform is the need to

address the problem of family violence and high conflict between parents in the

divorce transition. Any new framework for child custody determination should

be examined carefully in regard to the degree to which conflict and violence are

reduced between parents.

Finally, there is the question of promoting responsible fatherhood involvement.

Fathers face significant barriers in maintaining their relationships with their

children after separation; from their perspective, their children are removed from

their care in the absence of any protection concerns, and many face arrest for even

trying to see their own children as non-custodial parents (Kruk, 1993). Many have

been forcibly removed from their own homes, which are then confiscated and sold.

They face a panoply of other expropriations, including their earnings being tied

for years to come with child support burdens that reduce some to penury (ibid.;

Baskerville, 2007).

The current child custody policy debate in Canada has been framed in a way that has

overlooked some key questions, especially from the perspective of parents who are

removed from their children’s lives via sole custody judgments. Why are parents with

no civil or criminal wrongdoing forced to surrender their rights and responsibilities

to raise their children? Why do courts discriminate against children and families of

separated parents by using the indeterminate “best interests of the child” standard

to remove parents from children’s lives, as opposed to the clearer “child in need

of protection” standard for non-separated parents? On what basis do courts justify

treating parents unequally, as “custodial” and “non-custodial” or “residential” and

“non-residential” parents? Why are children forced to surrender their need for both

parents? Why are social institutions such as the courts undermining, rather than

supporting, parents in the fulfillment of their parental responsibilities?

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In debates and discussions about child custody and access, the following points have

been largely overlooked in policy discussions:

1. When divorces occur, a father’s role often becomes extremely marginalized.

Because of the bias and prejudices inherent in the sole custody system,

resulting in sole maternal custody in the great majority of litigated cases,

children’s need for a paternal influence has been overlooked. Fathers are no

less “primary” than mothers in their children’s lives, and an access-based

“visiting” relationship in no way resembles “parenting,” which requires routine

involvement in the daily tasks of caregiving (Kruk, 1993; Arditti and Prouty,

1999; Kelly, 2000; Kelly and Lamb, 2000).

2. The sole custody system exacerbates conflict, in which the more aggressive

and privileged party in a custody litigation holds a distinct advantage. Further,

the language used in custody law has created expectations about ownership

and rights, and who “wins” and “loses.” Most important, the “winner take all”

approach, in heightening conflict between former spouses, sometimes leads

to tragic outcomes. It is critical that post-divorce living arrangements reduce

conflict between parents, and that support services are available at the time of

separation to shield children from any destructive parental conflict.

3. Divorces involving severe marital violence are made worse if shared custody

is ordered. It is thus important that a legal presumption of joint physical

custody be rebuttable. In cases where there has been a criminal conviction

or an investigated finding that a child is in need of protection from a parent

(although such cases constitute a minority of child custody disputes), a judge

clearly should have the authority to make a child custody determination,

including sole custody. High-conflict cases not involving such violence,

however, may lead to first-time violence subsequent to a sole custody order.

Within the adversarial sole custody system, fully half of severe violence

episodes occur after separation. For the majority of “high-conflict” cases,

shared parenting is preventive of violence, particularly when ongoing postdivorce

therapeutic support is available to parents.

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4. It is now increasingly recognized that withholding a fit and loving parent

from the life of a child is itself a form of child abuse. Such parental alienation

is common in sole custody arrangements, but it is not clear whether shared

parenting would reduce such incidents. Therefore it is important that there

be some form of enforcement mechanism available to deal with breaches to

shared parenting orders, in the absence of established family violence or a

finding that a child is in need of protection.

These points may be added to the guidelines for child custody law reform proposed

by the Special Joint Committee on Child Custody and Access, the Federal/Provincial/

Territorial Family Law Committee, and the Child-centred Family Justice Strategy

discussed earlier. Any effective law reform effort will have to incorporate these

guidelines as the foundation for a just and equitable approach to child custody in

Canada.

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9.A “Four Pillar” Approach to Child Custody and

This section will review the guidelines outlined in the Special Joint Committee

on Child Custody and Access report, the Federal/Provincial/Territorial Family

Law Committee report, and the Child-centred Family Justice Strategy. It will also

examine the implications of current research into child and family outcomes

and preferences, parenting patterns, and family violence and child abuse on postseparation

child custody and access. A new approach to child custody and access

determination, based on established principles and current research findings and

beyond the limitations of existing options, will be proposed.

In essence, the stated objectives of proposed Canadian legislative reform to child

custody and access are to promote meaningful relationships between children and

their parents following separation and divorce, encourage parental cooperation, and

reduce parental conflict and litigation. Further, legislative reform should encourage

parents to restructure their relationships in a way that promotes the best interests

of children; that is, to focus their attention on the needs of their children during

the separation and divorce transition. At the same time, reform must ensure that

children are protected from family violence and abuse. Although a “one size fits

all” model of child custody determination is ill-advised, clarity and predictability of

outcome are important, as judicial discretion regarding determination of the “best

interests of the child” has proven to be highly problematic. Legislation must provide

clear guidelines for custody determination.

In our view, an additional key question regarding the present approach to child

custody in Canada should be posed in any law reform effort, and that is, “Is the

removal of a fit and loving parent from the life of a child, in the absence of an

investigated child protection order, a form of systemic abuse, if indeed children need

both their mothers and fathers as active parents in their lives following parental

separation?”

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Finally, in light of the diversity of parenting structures and patterns in Canada, a

“one size fits all” approach, whether it be sole custody or shared parenting, will not

meet the needs of all children and families, and has the potential to do harm. The

law must allow for flexibility to address the different circumstances of children and

families. Cases of established child abuse, which include children witnessing the

abuse of a parent, it is generally agreed, require a court determination of custody as

well as criminal proceedings. Cases where family violence and child abuse are not

legally established, where there is no finding that a child is in need of protection

from a parent, do lend themselves to a shared parenting arrangement, either parallel

or shared parenting (Jaffe, Crooks, and Bala, 2006), as children are best supported

when parents assume shared responsibility and when social institutions such as the

courts support parents in the fulfillment of their parental obligations.

The following “four pillar” framework is offered as a socio-legal policy solution to the

problems resulting from adversary-based sole custody determination, father absence

in children’s lives, and parental alienation.

1. HARM REDUCTION: Legal Presumption of Shared Parental

2. TREATMENT: Parenting Plans, Mediation, and Support/Intervention

3. PREVENTION: Shared Parenting Public Education

4. ENFORCEMENT: Judicial Determination in Cases of Established

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Legal Presumption of Shared Parental Responsibility

(Rebuttable Presumption of Joint Physical Custody in Family Law )

The first pillar establishes a legal expectation that existing parent-child relationships

will continue after separation; that is, in the interest of stability in children’s

relationships with their parents, the post-divorce parenting arrangements will reflect

pre-divorce parenting arrangements in regard to the relative amount of time each

parent spends with the children. In cases of dispute, however, shared parenting,

defined as children spending equal time with each of their parents, would be the

legal presumption in the absence of established family violence or child abuse. This

will provide judges with a clear guideline and will avoid the dilemma of judges

adjudicating children’s “best interests” in the absence of expertise in this area.

This pillar is intended to maximize the involvement of both parents in their

children’s lives after separation. Shared parental responsibility results in a more

equal division of parenting time and effort, and gives each parent a respite from

full-time child rearing, which is particularly important when, as is the case with

most Canadian families, both parents work full-time. It is also intended to maximize

parental cooperation and reduce conflict and to prevent serious family violence and

child abuse after parental separation. Finally, it is intended to reduce child poverty

after divorce (Moyer, 2004).

A legal presumption of shared parental responsibility establishes an expectation that

the former partners are of equal status before the law in regard to their parental

rights and responsibilities, and conveys to children the message that their parents are

of equal value as parents. At the same time, in the interests of stability and continuity

in children’s relationships with their parents, preexisting parent-child relationships

would be expected to continue after separation, at least in the transition period.

This would ensure that there is no sharp discontinuity of parent-child relationships,

as exists at present in most sole custody awards. To the extent that “history of care”

and “cultural, linguistic, religious and spiritual upbringing and heritage” are cited

as important vis-à-vis children’s needs for roots and security in maintaining existing

relationships, the idea of the immutability of parent-child relationships is important

to convey to divorcing parents. The adjudicative role of the courts would be reduced

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with the legal expectation that post-separation parenting arrangements reflect (in

proportionate time) pre-separation parenting patterns. If the courts were to become

involved, they would apply the shared parental responsibility presumption and not

get drawn into investigations regarding the proportionate amount of time each

parent spent with the children prior to separation.

Although it is a blunt instrument, and “children spending equal time with each of

their parents” may not reflect de facto the existing arrangements in the pre-separation

household, a rebuttable joint physical custody presumption would divert parents from

a destructive court battle over their children’s care. Shared parental responsibility

is also in keeping with current caregiving patterns, as the majority of mothers and

fathers are now sharing responsibility for child care in two-parent families.

A legal presumption of shared parental responsibility is a much more individualized

approach than the “one size fits all” formula of sole custody, a blunt instrument

which removes a parent from the life of a child in contested cases. Within a

rebuttable joint custody presumption, established cases of family violence are

seen to necessitate a different approach, one in which a judicial determination

of sole custody is the likely outcome. Second, parents are free to make whatever

arrangements they wish on their own and, if they cannot decide, an individualized

approach in which post-separation parenting approximating as closely as possible

the existing arrangements in the two-parent family is recommended, in the interest

of stability for children. Third, it is only in those cases where both parents present

as primary caregivers and cannot agree on a suitable shared parenting plan where

equal shared parenting would apply, in the interests of decreasing conflict and

ensuring that each parent remains involved.

A legal presumption of shared parental responsibility would exclude cases of family

violence established in criminal court, and cases of child abuse established via an

investigated finding that a child is in need of protection. Family court judges, not

trained in the finer points of child development and family dynamics, relying at

times on imperfect third party assessments, are susceptible to making mistakes

in determining the presence of violence and abuse, given the lax rules applied to

fact-finding and perjury in family disputes (Bala, 2000). Determining whether or

not violence, a criminal matter, has been perpetrated, and by whom, is a criminal

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matter and not an appropriate role for the family court. An allegation of abuse is

not equivalent to a criminal conviction of abuse, or the result of an investigation by

trained child protection authorities. In the absence of a criminal conviction or child

protection finding, an equal parenting presumption ensures that children will have

equal time with each parent, as opposed to being in the exclusive care and control

of an abusive parent who has mounted the stronger case in a contested custody

proceeding. In the family realm, where many parties see themselves (and their

children) to have been “abused” by the other, “victim politics” are commonplace,

and given no criminal conviction or a finding of “child in need of protection,” this

may be the most protective option for children. Detection of abuse is a difficult

matter, as at one extreme a significant proportion of family violence situations are

hidden to state authorities, while at the other extreme false allegations are made.

Where violence and abuse are alleged, criminal court proceedings as well as a

comprehensive child welfare assessment must precede any family court judgment

on matters related to child custody (see Pillar 4).

Parenting Plans , Mediation , and Support /Intervention

in High -Conflict Cases

Non-violent high-conflict couples can be helped, with therapeutic intervention and the

passage of time, to achieve more amicable parenting arrangements (Jaffe et al., 2006).

The second pillar of our model would set up a legal expectation that parents jointly

develop a parenting plan before any court hearing is held on matters related to postseparation

parenting. The court’s role would then be to ratify the negotiated plan.

Through direct negotiation, parent education programs, court-based or independent

mediation, or lawyer negotiation, a parenting plan that outlines the parental

responsibilities that will meet the needs of their children would be developed before

any court hearing is held. This does not require parents to negotiate face to face,

but it is aimed at helping them negotiate in the future, as any post-separation living

arrangement, whether shared equally or unequally, requires some form of ongoing

communication. In the interest of parental autonomy, parents are deemed to have

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the capacity to resolve their own dispute, rather than surrendering decision-making

regarding parenting arrangements to the court system.

Children’s needs for protection from parental conflict are addressed by this legal

expectation, as children’s needs become a means of connecting the parents in a

positive direction at a time when conflict has divided them. Parents in conflict

would be steered toward an “introduction to mediation” session.

Mediation, as an alternative method of dispute resolution, has considerable (and as

yet largely untapped) potential in establishing shared parenting as the norm, rather

than the exception, for divorced families. In the majority of non-violent “highconflict”

cases, both parents are capable and loving caregivers and have at least the

potential to minimize their conflict and cooperate with respect to their parenting

responsibilities within a shared parenting framework.

With a legal presumption of shared parental responsibility as the cornerstone,

mediation could become the instrument whereby parents could be assisted in

the development of a child-focused parenting plan. Given the lack of information

available to divorcing families about what to do, what to expect, and the services

which might be available to them (Walker, 1993), mediators could make such

information available prior to instituting any dispute resolution process. Parents who

are oriented to the divorce process and the impact of divorce on family members are

better prepared for mediation, and better able to keep the needs of their children at

the forefront of their negotiations. Divorce education programs also offer a means to

expose divorcing populations to mediation as an alternative mechanism of dispute

resolution (Braver et al., 1996). Further, an educative approach should be an integral

part of the mediation process, with a primary focus on children’s needs during and

after the divorce process. Family mediators with expertise in the expected effects of

divorce on children and parents can be instrumental in helping parents to recognize

the potential psychological, social and economic consequences of divorce and,

on that foundation, promote parenting plans conducive to children maintaining

meaningful, positive post-divorce relationships.

Parent education regarding children’s needs and interests during and after the

divorce transition, followed by a therapeutic approach to divorce mediation, offers

a highly effective and efficient means of facilitating the development of cooperative

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shared parenting plans. Within such an approach, parent education may be used

to introduce the option of shared parenting as a viable alternative, and to reduce

parents’ anxiety about this new living arrangement. Mediation would then help

parents work through the development of the parenting plan, and implementing

the plan in as cooperative a manner as possible. The process consists of four essential

elements of a parent education program, and four phases of mediation.

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65

Once a parenting plan is developed, parents may need the services of a mediator to

assist in their ongoing parenting negotiations; they should be urged to return for

mediation beyond a trial period, as future issues develop or past difficulties re-emerge.

Social institutional support for parents in the implementation of a shared parenting

plan is critical, particularly for “high-conflict” cases where children may be caught

in the middle of disputes between parents. There are a number of existing models of

therapeutic post-divorce support for such high-conflict families, including Ramsey’s

Wingspread Conference Report (2001), Garber’s Direct Co-parenting Intervention

Model (2004), and Lebow’s Integrative Family Therapy Model (2003).

Of all the strategies that can be used by divorcing parents to reduce the harmful

effects of divorce on their children, most important is the development and

maintenance of a cooperative co-parenting relationship (Kruk, 1993; Garber, 2004;

Lebow, 2003; Ramsey, 2001). Children’s adjustment post-divorce in a long-term shared

parenting arrangement is facilitated by a meaningful routine relationship with each

parent; an absence of hostile comments about the other parent; consistent, safe,

structured, and predictable caregiving environments without parenting disruptions;

healthy, caring, low-conflict relationships with each parent; and parents’ emotional

health and well being (ibid.). Any model of long-term support for high-conflict

divorced families should focus on these factors to produce positive outcomes for

children and their parents.

It is particularly important that hostility between parents be minimized

following divorce. Currently, in cases where there is ongoing litigation between

parents, children are at greater risk of emotional damage than in less contentious

circumstances; in many cases, divorce does not end marital conflict, but exacerbates

it. It is important that children see the good qualities in both of their parents, and

that parents work toward the development of positive relationships with each other.

An effective support system is instrumental in providing parents with the necessary

skills to deal with co-parenting challenges: “the central tenets of this system should

be to reduce conflict, assure physical security, provide adequate support services to

reduce harm to children and to enable the family to manage its own affairs” (Lebow,

2003). In order for such a system to be successful, allied professionals need to be

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supportive of a model that helps resolve family disputes and focuses on the welfare

of the children (ibid.).

Six key components of a longer-term support model for high-conflict parents have

been identified:

1. Whereas education on the impact of divorce on children both in the shortand

long-term should be provided to parents prior to the development of a

parenting plan (Kruk, 1993; Lebow, 2003), reinforcement and enhancement of

pre-divorce education should take place in a structured format post-divorce

(Kruk, 1993).

2. In addition to negotiating a workable parenting plan that meets the needs

of children and delineates the responsibilities of parents, monitoring the

consistency of the caregiving environments to the parenting plan post-divorce

is critical (Garber, 2004).

3. Although Garber (2004) argues that direct contact between highly conflicted

parents may be unnecessary in shared parenting, as parents can share

parenting responsibilities within a “parallel parenting” arrangement, it seems

clear that some form of intervention to mend the relationship between

parents would contribute to the long-term success of the shared parenting

arrangement (Lebow, 2003). This intervention would focus on the development

of positive interactions between family members, enhancing communication

skills, developing a range of problem-solving skills, and enhancing nonaggressive

negotiation skills.

4. Long-term counselling should be made available to children alone and to each

parent and each child together during and after separation (Lebow, 2003).

5. Long-term success of shared parenting is achieved through emotional healing

post-divorce (Lebow, 2003). Measures should be taken to allow each member of

the family to gain an increased understanding and acceptance of the separation

as time goes by.

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6. Finally, regular reviews of the parenting plan at pre-specified periods are useful

during the implementation of the plan (Kruk, 1993). This review should take

into consideration developmental changes in the children as well as structural

changes in the family such as the introduction of a new partner and stepparent,

relocation, and children’s changing developmental needs. The review

should be conducted by a family mediator who can re-open the parenting plan

for revision or modification as needed.

Shared Parenting Education

Shared parenting education within the high school system, in marriage preparation

courses, and upon divorce is essential to a much-needed program of parent

education and support. Public education about various models of shared parenting

is especially important, including models for “high-conflict” couples. Such programs

are being established, with an emphasis on including fathers who have not

traditionally been engaged by parenting support programs and services.

Shared parenting education should also involve the judiciary, as the effects of

changes in family law legislation on the actual practices of judges are uncertain,

although there is evidence that the incidence of shared custody increases and sole

maternal custody decreases after statutory changes that permit or encourage joint

physical custody (Moyer, 2004). The extent to which legislative reform can bring

about the desired result will depend largely on the attitudes of the judiciary as well

as legal practitioners. Assumptions about shared parenting being unworkable in

cases of disputed custody, and sole custody being in children’s best interests in these

cases, should be challenged, and stereotypes about disputing parents addressed.

Judicial Determination in Cases of Established Abuse ;

Enforcement of Shared Parental Responsibility Orders

The final pillar addresses directly the question of violence and abuse in family

relationships, and enables sanctions to be imposed where there is non-compliance or

repeated breaches of orders.

When it comes to questions of family violence, children’s safety and well-being are of

greatest concern. At the same time, it is important that innocence is presumed unless

allegations are proved beyond a reasonable doubt. Children’s safety is best assured by

addressing family violence as a criminal matter and child abuse as a child protection

issue. This is not, however, the general practice of family courts in Canada, which

often proceed as if alleged abuse has occurred even when not proved in criminal

court, and in the absence of a child protection investigation (Jaffe et al., 2006).

A rebuttable presumption of shared parental responsibility means that proven cases

of family violence would be exempt, and those cases involving either a criminal

conviction, such as assault, in a matter directly related to the parenting of the

children, or a finding that a child is in need of protection from a parent by a statutory

child welfare authority, would be followed by judicial determination of child custody.

It may be appropriate in such cases, argue Jaffe et al. (2006), for one or both parents to

have limited or no contact with the children because of potential harm.

In child custody situations in which assault is alleged, a thorough, informed and

expeditious comprehensive child welfare assessment is required. The criminal

prosecution of family members alleged to have been violent toward any other

member of the family would hold accountable all perpetrators of violence, as well as

those who are found to allege abuse falsely. The family court would then retain its

traditional role in the determination of custody. As Jaffe et al. (2006) highlight, in the

context of family violence the court may identify specific goals for the perpetrator

of violence to achieve (with monitoring) before progressing with the establishment

of a parenting plan. Cases that would benefit from diversion to counselling could be

referred to that arena.

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The use of family courts as “quasi-criminal courts” that do not have the resources

to apply due process when abuse allegations are made leaves judges susceptible

to making wrong decisions, leading to potentially greater harm to children.

Women’s advocates have long argued that the adversarial system does not protect

abused women adequately, and men’s advocates are beginning to identify the

ineffectiveness of the courts in dealing with the abuse of men. Detection of genuine

abuse cases is a critical yet difficult matter, and strengthening current child

protection and criminal prosecution responses to these cases will require refining

our ability to discern abuse where it exists, as well as dealing effectively with

unproven allegations.

To the degree that the adversarial sole custody system disregards children’s need for

both parents in their lives, it exacerbates the negative consequences of divorce for

children not exposed to family violence or abuse. Children value their connection

with their parents, and if one biological parent is denigrated, so is the child. The

loss of a loving parent through divorce has devastating consequences for children’s

self-concept. Children, who are the innocent victims of the “custody wars” between

parents, and of the social institutions and policies that exacerbate the conflict, are a

highly vulnerable and overlooked population. In the words of writer Jonathan Kozol

(1995), “there is nothing predatory in these children; they know that the world does

not much like them and they try hard to be good . . .”

When shared parenting arrangements are legally ordered, in which children spend

at least 40 per cent of their time with each parent, and a parent refuses to abide

by the order, disrupting the other parent’s time with the children, enforcement

measures may be required. Wherever possible, however, mediation should be

encouraged in cases where shared parenting orders are breached. Models such as

Manitoba’s access assistance program, piloted from 1989 to 1993 to facilitate the

exercise of access, could be modified for use in dealing with shared parenting orders.

It is expected, however, that breaches are less likely when both parents have an

active role to play in children’s lives within a shared custody arrangement.

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When enforcement measures are necessary, solutions may involve reduction or loss

of parenting time, or the following sanctions:

a requirement that a parent comply with “make-• up” contact if contact has

been missed through a breach of an order;

• the power to award compensation for reasonable expenses incurred due to

• legal costs against the party that has breached the order;

• discretion to impose a bond for all breaches of orders.

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10.Specific Challenges and Recommendations

Children and parents who have undergone abuse, including forced separation

from each other in the absence of abuse, are subject to post-traumatic stress, and

reunification efforts should be undertaken. Any reunification program subsequent

to prolonged absence should be undertaken only with great sensitivity, especially

when parental alienation is a factor. The importance of regarding both parents as

equally valued in the child’s eyes is of utmost importance.

Although child support is not the focus of this paper, it is an essential need of

children and a responsibility of parents. Child custody and access are closely related

to child support and family maintenance.

The economic independence of parents is a goal that proponents of equal pay for

work of equal value, and those challenging occupational segregation and wage

differentials, have advanced. Such a goal is highly compatible with a shared parental

responsibility approach to child custody. Shared parental responsibility for both

childcare and child support, in the context of both parents working outside the

home while actively parenting, is an important principle to uphold. Both parenting

and paid work should be recognized as “work” of equal value.

Current Federal Child Support Guidelines have been structured around the

existing regime of sole custody or primary residence with one parent, in which the

calculation of child support obligations is based on the income of the non-custodial

parent. The guidelines allow for a deviation from the specified amounts in the event

of shared custody; that is, when a child lives with each parent at least 40 per cent

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of the time. A shared parenting responsibility framework would mean that this

exception to the guidelines would become the norm for parenting arrangements,

which would necessitate a modification of the guidelines. The guidelines would need

to take both parents’ incomes into account, and would have to be based on a formula

different from that which currently exists.

Although the economic consequences of divorce for all family members are

devastating, the recent finding that the standard of living of non-custodial fathers

falls below that of custodial mothers (Braver and Stockberger, 2005) is largely

unrecognized, and this is a cause for concern, as child support guidelines are based

not only on a sole custody framework but also on the feminization of poverty thesis.

New child support guidelines within a shared parenting approach should aim

toward equalizing the standard of living of both households. In addition, greater

attention should be drawn to the general lack of government financial support for

parenting itself, and the problem of wage differentials between the genders.

It is not uncommon for spouses in high-conflict separations to make false or

exaggerated allegations of abuse, and false denials are equally a problem. Allegations

of parental abuse or neglect of children should be investigated in a timely manner,

and allegations of family violence dealt with as a criminal matter in criminal court.

When an allegation of abuse is made and an acquittal results in criminal court, this

should be binding on a judge in any subsequent family law proceeding. If an accused

is convicted in a criminal trial, however, the judge in a family law trial must take the

criminal conviction as conclusive evidence that the abuse in question occurred, and

act accordingly.

The outright suspension of parental involvement in a child’s life must only be done

in the case of established child abuse and, even then, reestablishment of a positive

parent-child relationship must remain a goal.

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Civil restraining orders to prohibit parents from contacting a spouse should not be

used to prevent parental contact with a child in the absence of a criminal conviction

or a finding that a child is in need of protection. Such orders made in the absence

of established family violence or child abuse are likely to have serious effects on

children’s well-being. Access supervision, in the absence of established abuse, is

equally problematic.

The abduction of a child from a parent’s life is a particularly egregious form of abuse.

Responsible parenting involves respecting the other parent’s role in the child’s life,

and any form of denigration of a former partner and co-parent, the most extreme

of which is abduction, is harmful to children, whose connection to each parent

must be respected. However, the position that, “if there is a reasonable possibility

of abduction, this may be grounds for supervising or denying access” (Jaffe, 2006)

is contrary to the presumption of innocence, and undermines co-parenting, and is

therefore unsupportable.

Parental alienation, which is more common than is often assumed, is the

“programming” of a child by one parent to denigrate the other parent. It is a sign

of an inability to separate from the couple conflict and focus on the needs of the

child. Alienating parents are themselves emotionally fragile, often enmeshed with

the child, with a “sense of entitlement, needing control, knowing only how to take”

(Richardson, 2006). Similar sanctions to those in family violence cases should apply

in these instances, as poisoned minds and instilled hatred toward a parent is a form

of abuse of children.

When children grow up in an atmosphere of parental alienation, their primary role

model is a maladaptive, dysfunctional parent. Shared parenting is clearly preferable

to sole custody in these cases, as children have equal exposure to a healthier parental

influence in their lives.

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Many parents are caught between legal aid criteria and having lost financial

resources to the adversarial system. They are thus unrepresented, and unable to

get fair hearings in court. This affects a disproportionate number of fathers in

Canada. Parents exposed to family violence are especially vulnerable without legal

representation.

A large hurdle for fathers and proponents of child custody law reform is garnering

public and political attention and support to deal effectively with the social

problems of fatherlessness, parental alienation and diminished father involvement

after parental separation and divorce. These problems need to be made more visible,

and constructive solutions advanced.

Engaging the legal system and professional service providers in dealing with these

issues is another challenge. A constructive role for these professionals needs to be

advanced if family law is to remove itself from the adversarial arena in cases without

violence or abuse.

Finally, engaging fathers themselves remains a challenge, as clinical and research

literature has described the lack of “fit” between fathers and therapeutic agents

as emanating from two sources: the characteristics of men and fathers themselves

(their resistance to counselling and therapy), and aspects of the therapeutic

process (which have failed to engage fathers successfully) (Forster, 1987). Patterns

of traditional gender-role socialization directing men toward self-sufficiency and

control, independent problem-solving and emotional restraint have largely worked

against fathers being able to acknowledge personal difficulties and request help. A

fear of self-disclosure and a feeling of disloyalty to one’s family in exposing family

problems are not uncommon; a fear of losing control over one’s life and the need

to present an image of control or a “facade of coping” in the form of exterior calm,

strength, and rationality, despite considerable inner turmoil, characterize many

fathers. Professional service providers do not always consider such psychological

obstacles to therapy and thus do not address fathers’ unique needs. The research

on separated and divorced fathers is clear about their most pressing need: their

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continued meaningful involvement with their children, as active parents. The lack of

recognition of this primary need is the main reason for therapists’ lack of success in

engaging divorced fathers (ibid.).

Errors of theory lead to potentially life-threatening errors of intervention

strategy and social policy. Given the current harms attendant on divorce for

children and families, including depression and suicide rates, and especially the

heightened probability of family violence in adversarial sole custody proceedings,

a more equitable and safe alternative to sole custody is needed. Shared parental

responsibility is a viable option for both cooperative and “high-conflict” parents,

with sole custody reserved for actual, established cases of family violence and child

abuse.

The four-pillar approach to child custody and access determination is offered as a

means to achieve the goal of shared parental responsibility in contested custody

cases. The following are specific recommendations for Canadian child custody law

reform that flow from this new proposed framework:

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