Experiments in Child Custody Reform

• Author: Martha Shaffer
• Pages: 373-388

Experiments

in

Child

Custody

Reform

Martha

Shaffer*

A.

INTRODUCTION

For

the

past

fifteen

years

or so, a

wave

of

custody

law

reform

has

been

sweeping across many western nations. Although

the

specifics

of the

laws

differ

across jurisdictions, these custody

law

reforms

tend

to be

characterized

by

three

major

themes:

(i)

they involve

a

change

from

the

language

of

custody

and

access,

(2)

they move

in the

direction

of

shared

parenting

by

emphasizing

the

continuity

of

parental roles

and

respon-

sibilities post-separation,

and (3)

they encourage greater reliance

by

par-

ents

on

alternative dispute resolution processes

as a way of

resolving

family

law

disputes generally

and

custody disputes

in

particular.

Despite

the

fact

that Canada does

not

have

a new

(federal)

custody

law

on the

books, Canada

has not

been immune

from

the

reform

agenda.

Reforms

to the

custody provision

of the

Divorce

Act1 were introduced

in

late

2002

by

Jean Chretien's Liberal government, only

to die on the

order

paper

in

2003.

Those proposed

reforms,

contained

in

Bill

C-22,2

*

Martha

Shaffer

is a

Professor with

the

Faculty

of

Law, University

of

Toronto.

The

author

wishes

to

thank

Jessica

Norman

and

Ruthie Wahl

for

their

excellent

research assistance

and

Denise Reaume

for her

helpful comments,

with

additional

thanks

to

Susan Boyd

and

Helen Rhoades

for

helping

to

sort

out the

recent

law

reform

developments

in

Australia.

1

Divorce

Act, R.S.C. 1985,

(2d

Supp.),

03.

2

Bill

C-22,

An Act to

amend

the

Divorce

Act,

2d

Sess., 37th

Par!.,

2003.

373

374

MARTHA

SHAFFER

were

the

product

of a

long history, beginning with

the

hearings

of the

controversial Special

Joint

Committee

on

Custody

and

Access

and its

often

heated,

and

highly publicized, gender politics.

Had it

passed,

Bill

C-22

would have been consistent with

this

general

law

reform

trend:

it

would have done away with

the

language

of

custody

and

access

and

replaced those terms with

the

notion

of

parental responsibility,

and it

would have replaced custody

and

access orders with generic parenting

orders that would have allocated "parenting time"

and

decision-making

responsibilities between

the

spouses.

Since

the

demise

of

Bill

C-22, there

has

been

no

movement

on the

legislative

front

at the

federal

level,3 although

we

have

had

judicial

ex-

periments with parallel parenting. Although

the

Liberals made noises

about reintroducing

Bill

C-22, they

did not

bring custody

reform

back

onto

the

legislative agenda

before

being

defeated

earlier this

year.

Now,

in

2006,

there

is a

Conservative government

in

Ottawa with

the

ability

to

amend

the

Divorce

Act if it so

chooses.

At

present,

family

law

reform

is not

among

the top

five

priorities

on the

Conservative government's

agenda.4

In

fact,

it is

doubtful

that

the

Harper government will want

to

tackle custody

law

reform

at all

given

the

fairly

tenuous minority

it

has in the

House

and the

fact

that custody

reform

is

always highly con-

tentious. However, several prominent Conservative MPs, most notably

Chief

Government Whip

Jay

Hill, have publicly stated that they will

at-

tempt

to

force

custody

law

reform

onto

the

government's agenda.5

Although there

is no way to

know

for

certain what

the

Conserva-

tives would

do if

they were

to

introduce

new

custody legislation,

we do

know that

it is

likely

to be

different

from

Bill

C-22

and

that

it is

likely

to

move much more strongly toward some notion

of

shared parenting.

When

Bill

C-22

was

introduced

by the

Liberals,

it

faced

harsh criticism

from

Canadian Alliance

and

Progressive Conservatives

MPs for

failing

to

enshrine

a

presumption

of

shared parenting.6 Some

of

these

MPs now

sit as

members

of the

Harper government.

Of

even greater

significance,

3

There has, however, been some

reform

activity

at the

provincial level.

For

example,

Alberta enacted legislation

in

2005

that

is

similar

in

many respects

to

Bill

C-22.

In

particular,

the law

replaces custody

and

access with parenting orders

and

contact

orders.

See

Family

Law

Act, S.A. 2003,

c.

$-4.5,

s. 32.

4

The

only family-related items that appear

to be on the

government's

agenda

are the

government's child-care plan (one

of its top

five

priorities)

and a

promise

to

revisit

the

issue

of

same-sex marriage. Policy Declaration

(19

March

2005),

Conservative

Party

of

Canada,

online:

www.conservative.ca/EN/2692 [Policy Declaration].

5

Cristin Schmitz, "Jay Hill

favours

presumptive

joint

custody

on

divorce"

The

Lawyer's

Weekly

(3

February

2006).

6

House

of

Commons

Debates,

No. 052 (4

February

2003).