Parenting Arrangements after Divorce
| Author | Julien D. Payne/Marilyn A. Payne |
| Pages | 474-518 |
PARENTING ARR A NGEMEN TS
AFTER DIVORCE1
A. INTRODUCTION
Since , more than million Canadi an children have been affected by
the divorce of their parents. More than , of these children have
witnessed the breakdown of a second long-term relationship of their cus-
todial parent.
Divorced mothers and their children have a high ri sk of living in pov-
erty. Children who are ra ised in poverty by a single parent often encoun-
ter nutritional, health, and educational problems t hat significantly affect
their adult lives.
Less than percent of all d ivorce proceedings result in full-blown
contested trials and, of thes e, very few involve disputes concerning the
children. Less th an percent of contested divorce cases are confined to
custody and access disputes.
More often than not, contested custody lit igation is a reflection of
continued and unresolved personal hostility between the spouses. Cus-
tody litigation may also disgu ise the real issue — which sometimes relates
to money and propert y, rather than the chi ldren. A custodia l parent may,
Forsweeping proposalsto change the law, see Canada,Parliament, Reportof theFor sweeping proposal s to change the law, see Canada, Pa rliament, Report of the
Special Joint Committee on Child Custody and Access, For the Sake of the Chi ldren
(Ottawa: Senate a nd House of Commons, December ) Summar y of Recom-
mendations – at xvii to x xiii.
474
475Parenting Arrangements after Divorce
for example, obtain an order for exclusive possession of the matrimonial
home or an order for spousal support that would be unavailable if custody
were denied to that pa rent.
A custodial parent has t he 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 t he child. Where the parents disagree,
either of them may institute legal proceed ings to have the dispute re-
solved by a court.
B. PRESERVATION OF FAMILY BONDS; JOINT
CUSTODY; MAXIMUM CONTACT PRINCIPLE
e history of custody during the last century has witnessed a radical ju-
dicial shif t from a strong paternal preference, through a strong maternal
preference, to the present-day philosophy that both parents are forever
and marriage breakdown and divorce should not preclude continuing
meaningfu l relationships between the child and both parents. Increased
legal recognition of the importance of preservi ng the child-parent bond
that evolved during the marriage is manifested by changes in orders for
joint custody and access that have evolved over several decades. Before
the first dominion-wide Divorce Act came into force in , orders for
joint custody were statistically insignificant. In recent years, courts have
moved away from their former practice of granting sole responsibi lity for
the children of separated or divorced parents to one of the parents and
granting only access rig hts to the non-custodial parent. Today, some form
of joint custody disposition is found in more tha n percent of divorce
cases. irty years ago, access orders entitled the non-custodial parent
to spend a few hours with the child at the weekend and a few days with
the child during school holidays. Today, a non-custodial parent is likely
to be granted access privi leges on one evening every week and overnight
access f rom Friday to Sunday on alternate weeken ds. During the summer
vacation, the non-custodial parent is frequently gr anted access for four
to six weeks. Other vacations and st atutory holidays wi ll often be equally
shared between the parents on a rotational basi s.
Subsections (), (), and () of the Divorce Act go some way towards
recognizing t hat divorce should not undermine the family bond s that a child
develops during the marr iage of his or her parents.
Subsection () of the Divorce Act empowers the court to make orders
“granting custody of, or access to, any or a ll children of the marriage to any
476 CANADIAN FAMILY LAW
one or more persons.” is subsection is of funda mental impor tance in that
it recognizes a place for joint cu stody arrangements; it also entitle s third par-
tie s, suc h as gr andp arent s or ot her rel ative s, to enjoy a ccess to the chil dren o f
divorcing or divorced parents. ird-party applications for custody and ac-
cess can on ly be brought by leave of cour t. Courts wi ll only allow t hird-party
applications to b e brought by persons who have been pre viously involved in
the child’s life. ird-party custody orders are rare. Applicat ions for access
privileges by third pa rties, especially gra ndparents, are far more likely to be
favourably received by the courts especially when such access wil l provide a
measure of ongoing stabil ity for the child. Grandparents have no presump-
tive right of access to their g randchildren and must discha rge the onus of
proving that they should have a continuing relationship with the child, not-
withstandi ng the opposition of the custodial parent to access.
Subsection () of the Divorce Act entitles a spouse who is granted ac-
cess to make inquiries and to be g iven information concerning the health,
education, and welfare of the children. A lthough subsection () falls
short of giving equal par ticipatory rights in the upbringing of the chi ld
to the non-custodial and the custodial parent, it provides the foundation
for an exchange of opinions that may facilitate the non-custodia l parent’s
meaningful involvement in decision making. While sec tion () of the
Divorce Act does not confer decision-making authority on the non-cus-
todial parent, an equa l right to participate in major decisions respecting
a child’s health, education, or welfare may be conferred by a joi nt custody
order, notwithstanding that one of the parents is contemporaneously
granted primary day-to-day care and control of the child. e mere fact
that one parent is opposed to sharing major decision-making authorit y
over the children does not preclude an order for joint custody. If the court
is satisfied that the parents are capable of commun icating and that the
child would not be adversely affected, an order aimed at enhanci ng par-
ental involvement in the child ’s life would generally se em consistent with
the best interests of the chi ld.
Ongoing parental conflict is not an automatic bar to some form of
joint custody or shared-parenting order but the degree of conflic t may be
sufficiently high to preclude any such order.However, one parent can-
C.M.L. v. R.S.T., [] S.J. No. (Q.B.).
V.L. v. D.L., [] A.J. No. (C.A.). In Ontario, guard ianship of the person of a
child is subsu med under “custody” of that chi ld. “Guardianship” is a ter m that is
confined to the g uardianship of the proper ty of a child: see Child ren’s Law Reform
Act (Ont.), R.S.O. , c. C., Pa rt III, especial ly ss. , –, and .
C.E.C. v. M.P.C., [] A.J. No. (C.A.) (interi m proceeding), citing Richter v.
Richter, [] A.J. No. at para. (C.A.); see, gener ally, Robinson v. Filyk, []
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