Parenting Arrangements after Divorce

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 373-410

 

PARENTIN G ARR A NGEM E N TS

AFTER DIVORCE1

A. INT RODUCTION

Since , more than . million Canadian children have been af‌fected

by the divorce of t heir parents. Approximately , of these chi ldren

have witnessed the breakdown of a second long-termrelationship of their

custodial parent.

Divorcedmothersandtheirchildrenhaveahighriskoflivinginpov

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erty. Child ren who are raised in povert y by a single parent often encoun-

ter nutritiona l, health, and educationa l problems that signif‌ica ntly af‌fect

their adult lives.

Mattersrelatingtothecustodyofandaccesstochildrenofdivorcing

or divorced parents rarely occupy the time a nd attention of the courts .

Less than  percent of all divorce proceedings are contested and, oft hese,

very fewinvolve disputes concerning the children. Lessthan  percentof

divorces result i n a custody or access tria l.

More often tha n not, contested custody l itigation is a ref‌lection of

continued and unresolved personal hostility between the spouses. Cus-

tody litigation mayalso disguise the real issue— whichsometimes relates

to money and propert y, rather than the chi ldren. A custodial parent may,

 Forsweepingproposalstochangethelaw,seeReportoftheSpecialJointCom-

mittee onChild Custody and Access, For the Sake of the Childre n, December ,

Summary of Recommendations,–,at xvii–xxiii.



 CANADIAN FAMILY LAW

for example, obtain an order for exclusive possession of the matrimonial

home or an order for spousal s upport that would be unava ilable if custody

were denied to that parent.

A custodial parent has the authority to make decisions that af‌fect

the growth and development of a child, but is expected to exercise that

authority in the best interests of the child. Where the parents disagree,

either of them may institute legal proceedings to have the dispute re-

solvedbyacourt.

B. PRESERVATION OF FAMILY BONDS; JOINT

CUSTODY; MAXIMUM CONTACT PRINCIPLE

e history of custody during the last century has w itnesseda radica l ju-

dicialshiftfromastrongpaternalpreference,throughastrongmaternal

preference, to the present-day phi losophy that both parents a re for ever

and marriage breakdown shouldnot preclude continuing meaningful re-

lationships betweenthe child and both parents. Commonsense suggests

that separat ion and divorce should not sever the bond b etween a child

andparent,butthisisbynomeansself-evidentiftheparentscontinueto

engage in persistent con f‌lict after their s eparation. e notion of child/

parent bondin g also loses much of its force if a p arent totally wit hdraws

from the child’s life or when a child is born extra-maritally and never

establishes a bond with an absent parent.

Increasedlegalrecognitionoftheimportanceofpreservingthebond

betweenchild and parent that evolvedduring the marriageis manifested

by changes in orders for joint custody and access. Before , orders for

jointcustody were statistically insignif‌icant. Today, they represent per-

cent of all cu stody dispositions on d ivorce. irty yea rs ago, access orders

entitled the non-custodial parent to spend a few hours with the child at

the weekend and a few days with thechild during schoolholidays. Today,

a non-custodial parent is likely to be granted access privi leges on one

evening e very week and overnig ht access from Friday to Sund ay on alter-

nate weekends. During the summer vacation, the non-custodial parent

is frequently granted access for four to six weeks. Other vacations and

statutory hol idays will often be e qually shared bet ween the parents on a

rotational ba sis.

Subsections(),(),and()oftheDivorce Actgo s ome way toward

recognizing that divorce should not undermine the family bonds that a

childdevelopsduringthemarriageofhisorherparents.

Parenting Arrangements after Divorce

Subsection () of the Divorce Act empowers the court to make or-

ders “granting cu stody of, or access to, any or all ch ildren of the marriage

to any one or more persons.” i s subsection is of fu ndamental impor-

tanceinthatitrecognizesaplaceforjointcustodyarrangements;italso

entitles third parties, such as grandparents or other relatives, to enjoy

access to the ch ildren of divorcing or divorce d parents. ird par ty ap-

plications for custody and access can only be brought by leave of court.

Courts w ill only al low third-party appl ications to be brought by person s

whohavebeenpreviouslyinvolvedinthechild’slife.ird-partycustody

disposition s continue to be rare. It is probable, however, that appl ications

for access privileges by grandparents will increase signif‌icantly in thefu-

ture and the y are likely to be favourably recei ved by the courts where such

access wil l provide a measure of ongoing st ability for the child . Grand-

parents have no presu mptive right of access to t heir grandchild ren and

must disch arge the onus of proving that t hey should have a continuing

relationship withthe child, notwithstanding the opposition of thecusto-

dial parent to access.

Subsection()oftheDivorce Act entitles a spouse who is granted

access to make inquiries and to be given information concerning the

health, education, and welfare of the children. Although subsection()

falls short of giving equal participatory rights in the upbringing of the

childtothenon-custodialandthecustodialparent,itprovidesthefoun

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dation for an excha nge of opinions that may faci litate the non-cust odial

parent’s meaningful involvement in decision-ma king.

Althoughsubsection()oftheDivorce Act doesnotconferdeci

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sion-making authority on the non-cus todial parent, a n equal right to

participate in major decisions respecting a child’s health, education, or

welfare may be conferred by a joint custody order, notwithstanding that

one of the parents i s contemporaneously gra nted primary c are and con-

trol of the child ren. Joint custody orders of th is nature may be unneces -

sary where t he parents are and remain resident s of Alberta but they may

take on a special importance where the primary ca regiving parent relo-

cates with the children to a nother province, such as Ontario. In Alberta,

unlike Ontario, guardianshipof the person of a child isnot synonymous

with custody. Section  of the Domestic Relations Act (Alberta) adopts

a rebuttable presumption of continuing joint guardianship of the chil-

dren after a parental separation or d ivorce, unless one of the parents is

declared unf‌it or the court otherwise directs. In the absence of any such

C.M.L.v. R.S.T.,[]S.J. No.(Q.B.).