Parenting Arrangements After Divorce

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 473-535



 

Parenting Arrangements After

Divorce

A. INTRODUCTION

Since , more than  million Can adian children have been af‌fected by the

divorce of their parents. More than , of these children have witnessed

the breakdown of a second long-ter m relationship of their custodi al parent.

Divorced mothers and their chi ldren have a higher risk of liv ing in pov-

erty. Chi ldren who are ra ised in povert y by a sing le parent often encounter

nutritional, health, and educ ational problems that signif‌icantly af‌fect their

adult lives.

Less t han  percent of al l divorce proceed ings result in full- blown con-

tested trials a nd, of these, very few involve disputes concerni ng the children.

Less t han  pe rcent of contested d ivorce cases a re conf‌ined to custody and

access disputes.

Contested custody litig ation is often a ref‌lection of continued and un-

resolved personal hostilit y between the spouses. Custody litigation may also

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

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

sion of the matrimoni al home or an order for spousal support th at 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 a mount of

child support paya ble.

 For sweeping prop osals to change t he law, see Canada, Par liament, Repor t of the Spe-

cial Joint Com mittee on Child Cus tody and Access, For the Sake o f the Children (Ottawa:

Senate and House of C ommons, December ), Summ ary of Recommendat ions –

at xvii–xxiii.

   

A cu stodial parent has t he authority to make decisions th at af‌fect the

growth and development of a child but is expected to exercise that authority

in the best interests of the ch ild. Where the parents disagre e, either of them

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

B. PRESERVATION OF FAMILY BONDS; JOINT

CUSTODY; MAXIMUM CONTACT PRINCIPLE

e history of custody during the last century has w itnessed a radical ju-

dicial shift from a strong paternal preference, t hrough a strong maternal

preference, to the present-d ay philosophy that both parents are forever and

marri age breakdown and divorce should not preclude continuing meaning-

ful re lationships between the child and both parents. Increased legal recog-

nition of the impor tance of pres erving the child-parent bond that evolved

during the marriage is manifested by chan ges in orders for joint custody

and access that have evolved over seve ral decades. Before the f‌irst dominion-

wide Divorce Act came into force in  , orders for joint custody were sta-

tistical ly insignif‌ic ant. In recent years, courts have moved aw ay from their

former practice of granting sole res ponsibility for the children of separ ated

or divorced parents to one of the parents and granting only access rights to

the non- custodial pa rent. Today, some form of joint c ustody disposition is

found in more than  percent of divorce cases. ir ty years ago, access or-

ders entitled the non-custod ial parent to spend a few hours with the child at

the weekend and a few days with the c hild during sc hool holidays. Today, a

non-custodia l parent is likely to be gra nted access privileges on one evening

every week and overnight access from Friday to Sunday on alternate we ek-

ends. D uring the summer vac ation, the non-custodial parent is frequently

granted access for four to six weeks. Other vacation s and statutory holidays

will ofte n be equally shared between t he parents on a rotational basis.

Subsections (), ( ), and () of the Divorce A ct go some way towards

recognizing th at divorce should not undermine the family bonds that a child

develops during t he marriage of his or her parents.

Subsection () of the Divorce Act empowers t he court to make orders

“granting c ustody of, or access to, any or a ll children of the marr iage to any

one or more persons.” is subse ction is of fundamenta l importance in that

it recognizes a place for joint custody arrangements; it also entitle s third par-

ties, such as grandparents or ot her relatives, to enjoy access to the child ren

of divorcing or divorced parents. ird-pa rty applications for custody and ac-

 M.P. v. N.M.,  BCSC .

 S.C. –, c.  .

 R.S.C.  (d Su pp.), c. .

Chapter : Parenting Ar rangements After Divorce 

cess can only be brought by leave of court. Court s will only allow third- party

applications to b e brought by persons who have b een previously involved in

the ch ild’s life. ird-party custody orders a re rare. Applic ations for access

privileges by third parties, especi ally grandparents, are fa r more likely to be

favourably received b y the courts espec ially when such acce ss will provide a

measure of ongoing stabil ity for the child. Gra ndparents have no presump-

tive right of access to t heir grandch ildren and must disc harge the onus of

proving th at they should have a continuing relationship w ith the child, not-

withstand ing the opposition of the custodial pa rent to access.

Subsection () of the Divorce Act entit les a spouse who is granted access

to ma ke inquir ies and to be given inform ation concerning the hea lth, educa-

tion, and welfare of the children. Although subsection () falls short of giving

equal participatory r ights in the upbringing of the chi ld to the non-custodial

and t he custodial parent, it provides the foundation for an excha nge of opin-

ions that may facilitate the non-custo dial parent’s meaningf ul involvement in

decision making. While section ( ) of the Divorce Act do es not confer deci-

sion-making authority on the non-c ustodial pa rent, an equal right to par tici-

pate in major decisions respecting a child’s health, education, or welfare may be

conferred by a joint custody order, notwith standing that one of the parents is

contemporaneously granted pri mary day-to-day c are and control of the child.

ere are no presumptions, either factual or legal, in favour of either sole

or joint custody; each case must be determined on its own un ique circum-

stances. Courts have moved away f rom presuming that if parties have dif-

f‌iculty communicating, joint custody is not appropriate. Ongoing parent al

conf‌lict is not a n automatic bar to some form of joint c ustody or shared-par-

enting order but the deg ree of conf‌lict may be su f‌f‌iciently high to preclude

any such order. e natu re and extent of the conf‌lict must be analyzed .

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

 Robinson v. Filyk (),  B.C.L.R. ( d)  (C.A.); K.K .G. v. D.P.S.G.,  BCSC ;

MacDonald v. MacDonal d (),  Nf‌ld. & P.E.I.R.  (N.L .C.A.); Russell v. Russ ell, 

NLTD(F) .

 B.T. v. B.L.,  BCSC .

 C.E.C. v. M.P.C., [] A.J. No.  (C.A.) (inter im proceeding ), citing Richter v. Richter,

[] A.J. No.  at pa ra.  (C.A.); see, gener ally, Robinson v. Filyk, [] B.C. J. No.

,  B.C.A .C. ; Javid v. Kurytn ik, [] B.C.J. No.  (C.A .); Dubey v. Dubey,

[] B.C.J. No.  (S.C.) (joint custody inappropri ate but joint guardianship ordered);

S.B.G. v. A.D.I .,  BCSC ; Sandhu v. Sandhu ,  BCSC ; A. N.H. v. M.K.C., 

NBQB ; H.S . v. S.S.,  NBQB  ; J.C. v. R.C.,  NBQB ; orn hill v. Hender-

son,  NLUFC  ; Carnell v. Follett,  NLTD(F)  ; Hewitt v.McGrath,  NSSC

; Greenberg v. Greenberg, [] O.J. No.  (Sup. Ct.); Jenkin s v. Jenkins,  ONSC

; Radons v. Radons, [ ] S.J. No.  (Q.B.); E.J.M. v. D.D.I., [] Y.J. No.  (S.C.)

(interim order); C. M.S. v. M.R.J. S.,  YKSC  ; compare C.S. v. S.N.,  YK SC  and

see Children’s Act, R. S.Y. , c. , s.  ().

 LeBlanc v. Khallaf,  NSSC 