An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access

2001-FCY-2E

OPTION THREE: SHARED PARENTING (continued)

ADVANTAGES AND DISADVANTAGES OF THIS OPTION FOR REFORM (continued)

Reducing Parental Conflict and Litigation

One of the objectives of reform, closely tied to the above discussion of increasing parental cooperation, is to reduce litigation over parenting disputes. An important question then is whether a regime of shared parenting is likely to reduce parental conflict and litigation.

Legislative Clarity and Predictability

One of the guiding principles of reform is to provide legislative clarity to the legal responsibilities of caring for children. If and when parenting disputes are litigated, and the courts are called upon to decide these disputes, it is important that the legislation provide as much guidance as possible. Moreover, clarity and predictability are likely to only decrease the need to resort to litigation.

One of the key problems that other jurisdictions that have moved to a model of shared or joint parenting responsibilities have experienced is the confusion over the precise meaning of the term shared parenting. This lack of clarity about the term and about the particular way in which that responsibility is to be shared between parents has, at least in the short term, resulted in continuing litigation, in which the courts have been called upon to interpret and clarify the new legal rules. Without greater clarity on the scope and content of parental responsibility—what it is and how it is to be shared—the very real risk is that the reform will create more problems than it resolves. Indeed, without greater clarity, there is a real risk that the introduction of the concept of shared parenting will undermine one of the very objectives of legislation reform, namely, to reduce conflict and litigation. Any legislative reform must, to the extent possible, avoid enacting a new regime that will create incentives for parents to litigate their disputes.

While the problem of legislative clarity, and the potential ambiguity created by the introduction of major reforms is common to all the options for reform, the problem may be heightened in the context of shared parenting, precisely because of the confusion that surrounds the term. There is a striking lack of clarity in the way in which the term is used. For some, shared parenting means joint legal custody. For others it means joint physical custody. For yet others, it has something vaguely to do with keeping parents involved in the lives of their children after divorce. Even among its advocates, shared parenting is rarely carefully and precisely defined, possibly masking differences of opinions within this constituency.

The use of shared parenting by the Special Joint Committee only exemplifies this problem. The Committee defines shared parenting as "including all the rights, obligations and common law and statutory interpretations embodied previously in the terms custody and access." As a definition, this provides absolutely no guidance as to how this parenting authority ought to be shared between parents. As used by the Committee, the term shared parenting has something to do with shared decision-making authority ("parental decision-making roles should, in most cases, continue beyond divorce") and with keeping parents involved in the lives of their children ("the Act must ensure that parent-child relationships survive marital break down"). At the same time, the Committee insists that shared parenting is not about joint physical custody (the Committee is not recommending a presumption that equal time-sharing is in the best interests of children), nor about establishing a formula for the allocation of parenting responsibility ("the new term… leave(s) decisions about allocating the various components to parents and judges"). Again, the meaning of shared parenting remains extremely unclear—it is not clear what is to be shared, nor how it is to be shared.

These problems with the lack of precision in the term’s scope and content, and its relationship with parenting orders could, theoretically, be specifically addressed in and through careful legislative drafting. Shared parenting would need to be more carefully defined, and its relationship with parenting orders more carefully articulated. But, it may be very difficult to reach such a consensus on the precise meaning of shared parenting. As discussed above, there is no consensus around the idea of joint physical custody, and even the Special Joint Committee rejected the idea that shared parenting should mean joint physical custody. Joint legal custody is also an extremely controversial idea.

Shared parenting could be defined as sharing major decision-making authority (decisions about major medical problems, education and religion) with day-to-day decision-making vested in the parent with whom the child resides. Although this approach would have the virtue of some clarity, it is an approach based on the controversial idea of joint legal custody. At a minimum, such an approach would have to delineate very carefully the limits to this shared decision-making—that is, the circumstances in which shared decision-making would be inappropriate.

Alternatively, it would be possible to follow the U.K. and Australian models, which are not seen to establish a presumption in favour of either joint physical or legal custody. However, as discussed above, there has been considerable confusion within the case law over what the idea of shared or joint parenting does actually mean. Following the U.K. and Australian models, therefore, is not a solution to the problems of legislative ambiguity and confusion.

Legislative Reform and Litigation

As discussed above, any major legislative reform is likely to generate, at least in the short term, an increase in litigation. This prediction is consistent with the experience of several jurisdictions that have experimented with shared parenting.

In the U.K. and Australia, which have both adopted regimes of shared parenting with a range of parenting orders, there has been no reduction in parental conflict and litigation. Studies on the impact of the Children Act 1989 in the U.K. found the following:

…disputes over what are now termed residence and contact orders appear to have intensified. In the 1990s we have seen the development of the ‘implacably hostile’ parent and the parent who ‘alienates’ the child’s affection for the other parent. The Children Act 1989 has not succeeded in taking the heat out of disputes around children on divorce despite its introduction of a concept of ‘parental responsibility’ which would endure beyond the end of the marriage.362

As discussed above, the number of contact orders made in the U.K. between 1992 and 1996 increased by 117 percent.363 Initial research on the impact of the reforms in Australia has similarly revealed an increase in the number of applications for parenting orders, and an increase in the number of litigated disputes arising out of alleged breaches of parenting orders.364

A number of reasons have been offered for this increase in litigation. Many lawyers, counsellors and mediators in Australia have commented on the unrealistic expectations the reforms create. Even those professionals who were most supportive of the reforms (counsellors and mediators) have commented that many contact parents, who are still overwhelmingly fathers, have misinterpreted the reforms, which has "led to anger and frustration and to increased litigation by fathers seeking to assert their rights. This view relates to the perception of some contact parents that the Reform Act had ‘promised’ them ‘equal time’ or ‘half time’ with the children."365 Lawyers were also of the view that the majority of disputed cases were instigated by non-resident fathers.

Some solicitors said this was a result of the ‘unrealised hopes’ and ‘increased bitterness’ of fathers who had expected to obtain greater parenting rights under the reforms, and/or were critical of mothers for failing to share decision-making responsibilities. Others said the increase in disputes stemmed from contact fathers who expected mothers to do "the lion’s share of the work" but "took every opportunity" to challenge their care of the children and/or the lack of consultation about day-to-day decisions.366

Solicitors and judges have also commented on a significant increase in trivial and unmeritorious applications, described as "a waste of time." A number of judges similarly described contravention applications as "brought predominantly by fathers who act for themselves and interpret the Reform Act as giving them ‘more rights than they have’, particularly in relation to day-to-day matters."367

Similar observations have been made about the increased litigation in the U.K., where commentators have suggested that these reflect "a change in parental attitudes—especially, perhaps, a change in fathers’ attitudes—contributing to a growing tendency to assert the importance of their role in their children’s lives."368

Any legislative reform invariably creates new legal ambiguities and uncertainties that will produce increased litigation in the short term. It remains to be seen whether the increased litigation rates in these other jurisdictions are simply short-term adjustments to a new legal regime, or whether the reforms will ultimately prove unable to take the conflict out of the resolution of parenting disputes for many separating and divorcing parents.

Protecting Children from Harm

A shared parenting regime presents particular challenges to the general legislative objective of protecting children from harm. Cooperative dispute resolution and decision-making are simply not appropriate norms for these families. Indeed, there may be circumstances in which it would not be possible to promote meaningful parent-child relationships among these families, and that parent-child contact may not be in the best interests of the child. A regime that focuses on promoting parental cooperation, joint decision-making and meaningful relationships runs the risk of marginalizing the needs of these children.

Any regime that attempts to promote some idea of shared parenting must make a clear and cogent exception for violence, high conflict families and inadequate parenting. It would be crucial, as discussed above, that the legislative framework ensure that these families do not inadvertently fall into the shared parenting stream.

The U.K. legislation fails on this front. It does not specifically address the needs of children who have experienced violence, high conflict or inadequate parenting, and the results under the legislation illustrate the dangers of failing to do so. The presumption of joint parental responsibility has become a presumption in favour of contact, and contact orders are routinely made in circumstances of violence, high conflict and inadequate parenting. The Australian legislation scores considerably better, insofar as the legislative regime specifically addresses the unique needs of children who have experienced family violence. However, the legislation does not address high conflict or inadequate parenting.

The Washington Parenting Act, although not based on a model of shared parenting, continues to represent the best model for protecting children from these harms in the allocation of parenting responsibility. It could be used as the basis for establishing the exceptions to the presumption in favour of shared decision-making authority, as well as the basis for restrictions in the allocation of the child’s residential schedule in a shared parenting regime.

Broad Implications of Reform for Other Laws

Finally, a move towards a shared parenting regime has serious implications for a broad range of federal and provincial legislation, which relies on the language of custody and access. If the Divorce Act abandons this language in favour of shared parenting, it would be necessary to consider, and possibly reform, all legislation that includes references to custody and access.369

While many of these laws would require only a minor change in language, there are some that would have to be changed more drastically.

The Federal Child Support Guidelines, for example, presuppose a regime of custody and access, 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 prescribed amounts in the event of shared custody—that is, for when a child lives with the other parent for not less than 40 percent of the time. A regime based on shared parenting could mean that this exception to the Guidelines would become the norm for parenting arrangements.

The sustainability of the existing Guidelines depends on whether a shared parenting regime resulted in a substantially different allocation of a child’s residential time between the parents. If a shared parenting regime simply resulted in increased decision-making authority for the non-residential parent, the existing Guidelines could be maintained. A regime of shared parenting in which a residential parent was still identifiable (and the child spent more than 60 percent of the time with that parent) could also be consistent with the existing Guidelines.

However, if shared parenting resulted in a substantial increase in the amount of time a child spends with the non-residential parent, so that it would no longer be possible to identify a residential parent, then the Guidelines would need to modified. If most parenting arrangements came to look like shared physical custody, with the child spending no more than 60 percent of the time with one parent, the existing Guidelines would no longer be sustainable. In a regime in which children spent roughly equal amounts of time with both parents, the Guidelines would need to take both parents’ incomes into account, and would have to be based on a formula different from that in the existing Guidelines.

Other laws are similarly based on the language of custody and access, distributing rights or responsibilities to custodial parents and access parents. As discussed above, shared parenting presents a serious challenge to a number of legislative schemes, including, for example, the Ontario Works Act, which depends on the identification of a custodial or primary caregiver parent. Joint custody arrangements, wherein a custodial or primary caregiver parent is not identifiable, are already causing problems for parents who are seeking benefits under this Act. A shared parenting regime would only intensify the problems, by increasing the frequency of shared parenting arrangements.

A shared parenting regime could include a provision that allowed one parent to be identified as a custodial or residential parent for the purposes of other federal and provincial laws. However, a parenting responsibility model does not preclude one parent being identified as a custodial-like parent. As mentioned above, it would be possible to allow the parents in a shared parenting regime to designate one parent as the custodial or residential parent "solely for the purpose of other provincial and federal statutes that require a designation of custody but the designation would not affect either parent’s rights or responsibilities under this Act." Such a provision might be helpful for separating and divorcing parents who were able to agree on their parenting arrangements, and able to agree on such a designation, but it would likely prove to be highly contentious for those parents who are unable to agree on their parenting arrangements. By effectively returning to the term custodial parent such a provision would reintroduce the very language that is said to produce parental conflict.

Moreover, it is not a provision that fits well with the spirit of shared parenting. The basic idea of a shared parenting regime is that all parenting responsibilities—generally defined as "all the powers, duties, responsibilities and authority which, by law, parents have in relation to children"—are shared between the parents, except to the extent that a parenting order or parenting plan provides otherwise. The designation provision described above can be seen to be significantly qualifying this assumption of shared parenting responsibility, by deeming one parent as the custodial parent, and, thereby, vesting him or her with all the powers, duties, responsibilities and authority created by those laws that require a custodial parent.

A shared parenting regime would, therefore, likely require a significant review and reformulation of a number of federal and provincial laws that currently rely on the language of custody and access.