Parenting Arrangements After Divorce

• Author: Julien D. Payne, Marilyn A. Payne
• Pages: 468-545

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 

Parenting Arrangements After

Divorce

A. INTRODUCTION

Since , more than  million Canadian c hildren have been aected by the

divorce of their parents. More th an , of these children have w itnessed

the breakdown of a second long- term relationship of their custod ial parent.

Divorced mothers and their chi ldren have a higher risk of l iving in pov-

erty. Children who are ra ised in poverty by a si ngle parent often encounter

nutritional, hea lth, and educational problem s that signic antly aect thei r

adult lives.

Less than  percent of a ll divorce proceedin gs result in ful l-blown con-

tested trial s and, of these, very few involve disputes concern ing the children.

Less than  percent of contested divorce c ases are conned to custody a nd

access disputes.

Contested custody litigation is of ten a reection of continued and u n-

resolved personal hostil ity between the spouses. Custody litig ation may also

disguise a n issue relating to money and proper ty, rather than the chi ldren.

A custodia l parent may, for example, obtain a n order for exclusive posses-

sion of the matrimoni al home or an order for spousal support that wou ld be

unavail able if custody were denied to that parent. Or a non-cu stodial parent

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

child support pay able.

A custodial parent has the authority to ma ke decisions that a ect the

growth and deve lopment of a child but is expected to exercise that authority

 For sweeping propos als to change the l aw, see Canada, Parl iament, Report of t he Special

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

and House of Commons, De cember ), Summar y of Recommendations – at x vii–xx iii.

MP v NM,  BCS C .

Chapter : Parenting Arrangements After Divorce 

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

may institute legal pro ceedings to have the dispute resolved by a court .

B. DEFINITION OF “CUSTODY ORDER”

Section () of the Divorce Act provides that “cu stody order means an order

made under subsection ()” of the Act. Hav ing regard to the provis ions of

section (), the term “custody order” includes an order for access. It do es

not include, however, an interim order for custody or access m ade pursuant to

section () of the Divorce Act. e distinction between interim a nd perma-

nent orders for custody or access is of specia l signicance with respect to t he

jurisd iction of the cour ts to vary, resci nd, or suspend such orders. It may als o

prove to be of signica nce with respect to appel late proceedings i nsofar as

these proceedings a re governed by provincial ru les of practice and procedure.

C. DEFINITIONS OF “CUSTODY” AND “ACCESS”

Section () of the Divorce Act provides that “custody” includes care, upbring-

ing, and any other i ncident of custody. e reference to “any other incident of

custody” in the st atutory denition of “custody” f acilitates a court ordered

division of the va rious incidents of custod y between the respect ive claim-

ants, where an order for custody or any va riation thereof is made pu rsuant

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 visite.” Section () of

the Divorce Act qualies this de nition of “accès” by entitling a spouse who is

granted access priv ileges to make inquiries and receive infor mation concern-

ing the health, educat ion, or welfare of the ch ild. 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 has been granted access privileges. Section () entitles a

spouse who is granted access pr ivileges to direct releva nt inquiries to the cus-

todial parent or to a t hird party, such as the chi ld’s doctor or school principal.

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

 RSC  (d Supp), c .

 See Chisholm v Bower (),  RFL ( d)  (NS Fam Ct).

 See Section L, belo w in this chapter.

Divorce Act,s().

Crawford v Crawford (),  RFL (d)  at   (Ont Gen Div).

Moss v Boisver t (),  Alta LR (d)  (M aster); see also Boyd v Wegrzynowicz (),

 RFL (d)   (BCSC); Amaral v Myke (),  RF L (d)  (Ont UFC); and s ee Ham-

    

e onus is on the non-custodial spouse to seek the relevant information

unless the cour t specical ly directs t hat custodia l parent to provide the in-

formation. Se ction () does not expressly require the cu stodial parent to

consult with the sp ouse who has access privileges before decisions a re taken

that aect the c hild’s health, e ducation, and welfare. If, for ex ample, the

parents cannot agree on where t heir child should go to school, the custo dial

parent has the ultim ate decision-making power, subject to a court’s right to

override that decision.

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

wide and a narrow sen se. In Hewar v Bryant, Sachs LJ, of the Court of Appe al

in England, obser ved that in its wide sense, custody is v irtually equiv alent to

guardia nship, whereas in its narrow sense, custody refers to t he power to ex-

ercise physical control over t he child. In Canadian d ivorce proceedings, case

law tends to support the conc lusion that, in the absence of directions to t he

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

todial parent sha ll exercise all the powers of the legal g uardian of the child.

e non-custodial pa rent with access privileges is thus deprived of the r ights

and responsibilities t hat previously vested in that parent as a joint c ustodian

of the child. Although a parent who has been granted access privileges may

have some limited powers to ma ke decisions where an emergency necessi-

tates action and the custod ial parent is unavai lable, these limited powers fall

short of a fundamenta l right to equally part icipate in decisions aecting t he

child ’s welfare and development.

ilton v Hamilton (),  RFL ( d)  at  (Alta QB) (express wa iver of right to contact

third par ties upheld by court).

Hume v Hume (),  Nd & PEIR   (PEISCTD). Compare Perillo v Peri llo (), 

RFL (th)  (A lta QB).

 McLean v Goddard (),  NSR (d)  (Fam Ct) (cu stodial parent requ ired to provide

a monthly list of t he child’s upcomin g events); Hess v Hess (),  RFL (t h)  (Ont

Gen Div) (onus placed on cu stodial parent to gi ve access parent “fu ll and meaningf ul

notice” of children’s activities).

 See Anson v Anson (),  BCLR (d)  (Co Ct); compare A bbott v Taylor (),  RFL

(d)  at  (M an CA); and see Berend Ho vius, “e Chan ging Role of the Access Pa r-

ent” ()  Can Fa m LQ .

 Ducas v Varkony (),  RF L (th)  (Man QB).

 See Perron v Perron,   ONCA .

 []  QB  at – ( Eng CA).

 Young v Young, []  SCR ,  RFL ( d) , L’Heureux-Dubé J; Ross v Ross,  BCSC

.

 See Young v Young, ibid;Anson v Anson (),  BCLR (d)   at  (Co Ct); ASP v NNJ,

 BCSC ; McCutcheon v McCutcheon (),  RFL (d)  at  (N BQB); Glasgow

v Glasgow (No ) (),  NSR ( d)  at – (Fam Ct); Gubody v Gubody, [] OWN

 (HCJ); Mi sch v Pster,  ONSC ; Gunn v Gunn (),  RFL  at –

(PEISCTD); Droit de la famille — (),  RFL (d)  at  (Que CS), rev ’d (),