After 12 months of study that included 55 meetings and more than 520 witnesses, the Special Joint Committee on Child Custody and Access released its report entitled “For the Sake of the Children” in December 1998. The 48 recommendations propose not only legal changes, but also a cultural shift in how adults must deal with the impact of divorce on children.
The Committee heard testimony from groups and individuals representing the many facets of the issue –including legal, mental health, child development, child protection, and academic experts, as well as separated and divorced parents — in an attempt to examine the issues relating to custody and access agreements after separation and divorce with a special emphasis on making marriage breakups easier on children.
Although the information-gathering process itself was widely accused of being biased against women and mothers, the Committee’s final recommendations are generally evenhanded. The report calls for both parents to be treated equally under the law to ensure that both mothers and fathers share the job of raising their kids after a separation or divorce, and to ensure that children have a close and continuous relationship with both parents. Although the Committee doesn’t call for 50-50 custody of children, it strongly recommends that children have access to both parents – except in cases where there’s a proven history of family violence.
Other recommendations include:
- The words “custody” and “access” would be wiped from the books. They would be replaced by “shared parenting,” which is defined as shared decision-making about the child’s welfare and upbringing; for example, where the child will live and go to school, whether there will be religious education, and what kinds of medical treatment the child will receive (orthodontics, vaccines, elective surgery, etc.).
- Parents would be expected to devise a parenting plan guaranteeing that both partners remain involved in the child’s life. The plan would set out details about each parent’s responsibilities for residence, care, decision-making, and financial responsibilities, as well as outlining how disputes would be settled. If parents are unable to agree on a parenting plan, each one would be required to submit his or her plan to a judge for a decision. If the judge finds neither plan acceptable, the parents would have to attend mediation to try to work out a plan; if mediation failed, the court would impose a parenting plan. An acceptable plan would also require parents to share with each other any health, educational, and other information related to the child’s development and social activities.
- Grandparents and other extended family members would enjoy easier access to children of divorce; provisions for maintaining and fostering such relationships would also be included in the parenting plan.
- Unless a court rules otherwise, both parents would get automatic access to records from schools, doctors, hospitals, etc.
- The children would be given the opportunity to be heard when parenting decisions affecting them are being made.
- The Committee also recommended that the federal government work with the provinces and territories towards the development of a nation-wide response to failures in respect to parenting orders. Measures would include early intervention, parenting education programs, make-up policy, counseling for families experiencing parenting disputes, mediation, and punitive solutions for parents who persistently wrongfully disobey parenting orders.
One of the best received recommendations from the Committee was its call for mandatory education sessions before any disputes are heard by the court. These sessions would focus on the post-separation reaction of parents and children, children’s developmental needs at different ages, the benefits of cooperative parenting during and after divorce, parental rights and responsibilities, and the availability and benefits of mediation and other forms of dispute resolution. A certificate of attendance at a post-separation education program would be required before the parents would be able to proceed with their application for a parenting order. Parents in a dispute would not be required to attend sessions together.
Even before the Committee recommended divorce education as a way to help parents and children through a difficult time, many Canadian groups and institutions have started to embrace it. Currently, there are 140 parental education programs across Canada in schools, churches, and other community organizations, as well as pilot projects taking place in certain jurisdictions.
In 1998, the province of Alberta completed a five-year pilot program for parental divorce education in Edmonton. The six-hour course — which is now mandatory for couples who file for custody, access, or child support through the court system — is funded by social services and the justice department. Free to parents, the course provides information about the effects divorce has on them and their children, discussing issues as parental alienation and the “DO’S” and “DON’TS” of divorce and mediation.
Since August of 1998, couples in Toronto involved in a family law proceeding have been required to attend a two-night “Family Information Session.” The three-hour sessions, run by a volunteer mediator or social worker and a lawyer, are designed to provide its participants with information on the emotional and legal aspects of separation, the effect of divorce on children, the benefits of mediation and other dispute resolution options, and specific information about the court process in which they’re involved. Until they’ve received a certificate stating that they’ve completed the Session, they can’t go ahead with their lawsuit. Both spouses have to attend, on separate nights, unless they can come up with an acceptable reason not to. The program was established after Toronto’s Justice George T. Walsh saw a similar program in Australia in 1995 and brought the idea back to the Family Law Committee. “The committee spent years fine-tuning the program — from deciding on the content to the logistics of how the program should be run, ” said G. Ross Davies, a committee member and a lawyer with Bennett, Best, Burn. “The eight-member committee consisted of Ontario lawyers, mediators, and ministry workers to ensure that all aspects of the process were covered.”
The session includes the viewing of an hour-long video called “Separate Ways,” which draws on the experience of divorced and separated couples for their insights into the separation process. The Family Information Sessions are made possible with the help of volunteers and the assistance of sponsors such as Brent Valuations, Cole Valuation Partners, Eckler Partners, Fuller Landau Roher, Levitsky Feldman Valuators, Pricewaterhouse Coopers, and Rudson Valuation Group. “We decided to sponsor the sessions because we wanted to assist in the education of people going through this rough time,” said sponsor Wayne Rudson, president of Rudson Valuation Group. “We wanted to help make the process a little easier for people who have to go through divorce.”
The “Separate Ways” video has been distributed to family lawyers in Ontario, and it’s available in public libraries and several government offices. For more information, or if you would like to attend an information session in Toronto, call program coordinator Karen Small at (416) 362-6214.
In October of 1997, professors at Osgoode Hall Law School began a pilot project for those appearing in court for separation or divorce-related proceedings without legal representation — or the emotional resources to help them deal with divorce-related issues. The “Parent Information Pilot Project,” which is usually offered four times a month on Monday nights at various locations across Toronto, is designed to address the lack of legal knowledge and the emotional difficulties that go hand-in-hand with divorce. The session covers topics such as proper jargon and procedures of court appearances, as well as introducing alternatives to litigation — such as negotiation or mediation. On the emotional side, parents learn what they can expect from both themselves and their children as the process advances, and what traps divorcing couples commonly fall into. In order to avoid conflict, separating couples aren’t allowed to attend the same session, and seminar leaders take issues such as abuse into consideration before suggesting alternatives to court and explaining emotional reactions. For more information about the project, call Shirley Kierstead at (416) 650-8104.