Parenting Arrangements after Divorce

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



  

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 ch ildren have a higher r isk of living i n

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

ter nutritional, hea lth, and educational problem s that signic antly aect

their adult lives.

Less than  percent of al l divorce proceedings resu lt in full -blown con-

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

Less than  percent of contested divorce ca ses are conned to custody a nd

access disputes.

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

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

disguise a n issue relating to money a nd property, rather than t he children.

A custodia l parent may, for example, obtain an order for exc lusive 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 parenti ng 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 custodia l parent has the authority to m ake decisions th at 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 m ade pursu-

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

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

to the jurisdic tion of the courts to va ry, rescind, or suspend such orders. It

may also prove to be of sign icance with resp ect to appellate proceed ings

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, upbr ing-

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

custody” in the st atutory denition of “custody ” facilitates a cour t-ordered

division of the va rious incidents of custody b etween the respect ive claim-

ants, where an order for custody or any var iation thereof is made pu rsuant

to section  or section  of the Divorce Act. Sect ion () 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 priv ileges to make inqu iries and receive infor mation concern-

ing the health, educat ion, or welfare of the chi ld. is rig ht 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-custodi al spouse to seek t he relevant informat ion

unless the court s pecical ly directs th at custodia l 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 c hild’s health, educ ation, and welfare. If, for exa mple, 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 impreci se and has in the past b een 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 .