M. Parental Conflict Resolution

Author:Julien D. Payne - Marilyn A. Payne

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Custody litigation is relatively rare; access litigation is more common.309It is generally acknowledged that litigation should be the last resort for resolving parenting disputes. It is costly, not only in terms of money, but also in terms of emotional wear and tear. Litigation is not a therapeutic catharsis for the resolution of custody and access disputes. Children pay a heavy price when their parents engage in embittered custody and access disputes that lead to warfare in the courts. If litigation can be avoided without damage to the psychological, physical, or moral well-being of the children, it should be avoided. There will be exceptional cases where allegations of psychological, physical, or sexual abuse necessitate judicial intervention. In the vast majority of cases, however, both parents are fit to continue to discharge their responsibilities to the children after marriage breakdown or divorce.

Roadblocks to shared parental responsibilities after separation or divorce are often attributable to a lack of knowledge and to the inability of parents to communicate and segregate their interpersonal hostility from their role as parents. It is for these reasons that the Law Reform Commission of Canada recommended that a mandatory family conference be held in cases involving dependent children. In its Report on Family Law, the Law Reform Commission of Canada recommended as follows:

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  1. Whenever children over whom the court has jurisdiction in dissolution proceedings are involved, the law should require that there be an immediate informal meeting of the parties - an "assessment conference" - before the court, a court officer, a support staff person or a community-based service or facility designated by the court, for the following purposes:

(a) to ascertain whether the spouses have made appropriate arrangements respecting the care, custody and upbringing of the children during the dissolution process, and if not, to ascertain whether such arrangements can be agreed to by the spouses;

(b) to ascertain whether the appointment of legal representation for children is indicated;

(c) to ascertain whether a formal investigative report by a public authority (e.g. an Official Guardian or Superintendent of Child Welfare) is indicated;

(d) to ascertain whether a mandatory psychiatric or psychological assessment of the situation is indicated;

(e) to acquaint the husband and wife with the availability of persons, services and...

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