Parenting Arrangements after Divorce

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 545-633

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  

Parenting Arrangements after

Divorce

A. INTRODUCTION

Since , more than  mil lion Canadian chi ldren have been aected by the

divorce of their parents. More tha n , of these children have witnesse d

the breakdown of a second long-ter m relationship of their custodia l parent.

Divorced mothers and their children have a higher risk of living in

poverty. Childre n who are raised in poverty by a single pa rent often encoun-

ter nutritional, health, and educational problems that signicantly aect

their adult lives.

Less than  percent of all divorce proceedings result in full-blown con-

tested trial s and, of these, very few involve disputes concer ning the children.

Less than  percent of contested divorce cases are conned to custody and

access disputes.

Contested custody litigation is often a reection of continued and un-

resolved personal hostil ity between the spouses. Custody liti gation may also

disguise an issue relating to money and property, rather than the children.

A custodial parent may, for example, obtain an order for exclusive posses-

sion of the matrimonia l home or an order for spousal support that would be

unavaila ble if custody were denied to that parent. Or a non-custod ial parent

may seek an order for shared parenting in order to reduce the amount of

child support paya ble.

 For sweeping prop osals to change t he law, see Canada, Pa rliament, Rep ort of the Specia l

Joint Committee on C hild Custody and A ccess, For the Sake of the Children (Ot tawa: Senate

and House of Commons , December ), Summar y of Recommendat ions – at xvii–x xiii.

  

A custodial parent has the authority to make decisions that aect the

growth and deve lopment of a child but is expecte d to exercise that authority

in the best interests of the ch ild. Where the parents disag ree, either of them

may institute legal procee dings to have the dispute resolved by a court.

B. DEFINITION OF “CUSTODY ORDER”

Section () of the Divorce A ct provides that “custody order means an order

made under subsection ()” of the Act. Hav ing regard to the provisions of

section (), the term “custody order” includes an order for access. It does

not include, however, an interim order for custody or access made pursu-

ant to section () of the Divorce A ct. e distinction between interim and

permanent orders for custody or access i s of special signic ance with respect

to the jurisdiction of the courts to vary, rescind, or suspend such orders. It

may also prove to be of signicance with respect to appellate proceedings

insofar as these proceed ings are governed by provincia l rules of practice and

procedure.

C. DEFINITIONS OF “CUSTODY” AND “ACCESS”

Section () of the Divorce A ct provides that “custody” includes care, upbring-

ing, and any other inc ident of custody. e reference to “any other incident of

custody” in the statutory denition of “custody” facilitates a court-ordered

division of the various incidents of custody between the respective claim-

ants, where an order for custody or any variation thereof is made pursuant

to section  or section  of the Divorce Act.Section () of the Divorce Act

provides no denition of “access” in the Engl ish language, but the French ver-

sion provides as follows: “‘Accès’ comporte le droit de vi site.” Section () of

the Divorce Act qualies t his denition of “accès” by entitling a spouse who is

granted access privileges to make inquiries and receive information concern-

ing the health, education, or welfare of the child. is right exists in the ab-

sence of a court order to the contrar y. It does not extend to any person other

than a spouse who ha s been granted access privileges. Sec tion () entitles a

spouse who is granted access pr ivileges to direct relevant inqui ries to the cus-

todial parent or to a th ird party, such as the child ’s doctor or school principal.

 MP v NM,  BCSC .

 RSC , c  (d Supp).

 See Chisholm v Bower (),  RF ( d)  (NS Fam Ct).

 See Section L, bel ow in this chapter.

 Divorce Act,s  ().

 Crawford v Craw ford (),  RFL (d)   at  (Ont Gen Div).

Chapter : Parenting Arrangements after Divorce

is right may not ex tend to being entitled to be involved in school activ ities.

e onus is on the non-custodial spouse to seek the relevant information

unless the court specically directs that custodial parent to provide the in-

formation. Section () does not ex pressly require the custodial parent to

consult with the spou se who has access privileges before decisions a re taken

that aect the child’s health, education, and welfare. If, for example, the

parents cannot agree on where t heir child should go to school, the custodi al

parent has the ulti mate decision-making power, subject to a cour t’s right to

override that dec ision.

e term “custody” is imprecise and has in the past been used in both a

wide and a narrow se nse. In Hewar v Bryant, Sachs LJ, of the Court of App eal

in England, obser ved that in its wide sense, custo dy is virtual ly equivalent to

guardia nship, whereas in its narrow sense, custody refer s to the power to ex-

ercise physical control over the c hild. In Canadian d ivorce proceedings, case -

law tends to support the conclus ion that, in the absence of d irections to the

contrary, an order granti ng sole custody to one parent signies that the cus -

todial parent sha ll exercise all the powe rs of the legal guardian of t he child.

e non-custodia l parent with access privileges is t hus deprived of the rights

and responsibilities t hat previously vested in that parent as a joint cu stodian

of the child. A lthough a parent who has been granted access privi leges may

 Moss v Boisvert ( ),  Alta LR (d)  (Maste r); see also Boyd v Wegrzyn owicz (),

 RFL (d)   (BCSC); Amaral v Myke (),  RFL ( d)  (Ont UFC); and see

Hamilton v Hamilton (),  RFL (d)  at  (A lta QB) (express waiver of r ight to

contact thi rd parties upheld by cou rt).

 Hume v Hume (),  Nd & PEIR   (PEISCTD). Compare Perillo v Perillo (), 

RFL (th)  (A lta QB).

McLean v Goddard ( ),  NSR (d)  (Fam Ct) (custodi al parent required to pr ovide

a monthly list of t he child’s upcomi ng events); Hess v Hess (),  RFL (t h)  (Ont

Gen Div) (onus placed on cu stodial parent to g ive access parent “f ull and meani ngful

notice” of chi ldren’s activities).

 See Anson v Anson (),  BCLR (d)  (Co Ct); compare Abbot t v Taylor (),  RFL

(d)  at  (M an CA); and see Bere nd Hovius, “e Cha nging Role of the Acce ss Par-

ent” ()  Can Fa m LQ .

Ducas v Varkony (),  RFL (th)  ( Man QB).

 See Perron v Pe rron, ONC A .

[]  QB  at – (En g CA). But compare Dipper v Dipper, [] Fam  (Eng CA).

 See JR v NR,  BCSC  , citing Young v Young, []  SCR  at paras – ; see

also BDM v AE M,  BCSC ; JM v JA ,  NBQB ; MacDonald v MacDonald,

 NSSC ; Jack son v Mayerle,  ONSC . B ut see contra: Walsh v Binet,  AB QB

, citing V L v DL, [] AJ No  (CA) at pa ras –. And se e John-Paul Boyd,

“A Regime of Peacefu l Coexistence, Pa rt , Disentangl ing Custody and Gua rdianship

under the Divorc e Act and the Family La w Act” () : e A dvocate  at , cited

with approva l in Rana v Rana,   BCSC .

Young v Young, []  SCR , L’Heureux-Dubé J; Ros s v Ross,  BCSC .