When economic disputes arise on separation or divorce, lawyers and courts insist on full financial disclosure as a condition precedent to resolving issues relating to property division and spousal or child support. The need for access to all relevant and available information is no less compelling when custody and access disputes arise. All too easily, however, the interests of children can be overlooked in custody and access litigation as parents engage in forensic combat for the purpose of ventilating their personal hostilities. Although it is generally acknowledged that separation and divorce sever the marital bond but should not sever parent-child bonds, adversarial conflict on marriage breakdown can present major obstacles to a meaningful relationship being preserved between children and a non-custodial parent.
The difficulty faced by a court when embittered spouses engage in custody litigation was exposed in the dissenting judgment of Bayda JA, of the Saskatchewan Court of Appeal, in Wakaluk v Wakaluk.343He stated:
From the standpoint of custody the hearing of the petition was, in my respectful view, quite unsatisfactory. Virtually no evidence was directed to this issue. The parties primarily concerned themselves with adducing evidence to show whether, on the basis of the many marital battles engaged in by them, one or the other of them should be favoured by the trial judge in his determination of the issue of cruelty.
No one bothered to bring forward much information in respect of the two individuals who of all the persons likely to be affected by these
proceedings least deserve to be ignored - the children. We know their names, sex and ages, but little else. Of what intelligence are they? What are their likes? Dislikes? Do they have any special inclinations (for the arts, sports or the like) that should be nurtured? Any handicaps? Do they show signs of anxiety? What are their personalities? Characters? What is the health of each? (This list of questions is not intended as exhaustive or as one that is applicable to all contested cases but only as illustrative of those questions which may be relevant.) In short, no evidence was led to establish the intellectual, moral, emotional and physical needs of each child. Apart from the speculation that these children are "ordinary" (whatever that means) there is nothing on which to base a reasoned objective conclusion as to what must be done for this child and that child, as individuals and not as mere members of general class, in order that the welfare and happiness of each may be assured and enhanced.
Nor was any direct evidence led to show which...