CHILD CUSTODY AND
Law and Government Division
AND ACCESS LAW
Divorce Act - Custody and Access Applications
"Best Interests" and Other Tests for Custody and Access
Joint Versus Sole Custody
Access Arrangements and the Rights of Access Parents
Enforcement of Custody and Access Orders
A Joint Parliamentary Committee on Custody and Access Issues
Outstanding Custody and Access Issues
The 1968 passage of the
first federal Divorce Act enabled many more Canadian couples to
divorce,(1) resulting in more
and more disputes over the custody of children and parents' right to access
to them. In Canada, almost 40% of marriages now end in divorce, affecting
the lives of thousands of children. Their parents' struggles, both during
and following a separation, have a lasting impact on these children, as
mental health experts are able to demonstrate. Custody and access determinations
can be readily made by some parents, with little or no acrimony; however,
in other cases there are long-term conflicts that resist resolution. This
paper looks at the law governing the custody of and access to children
in Canada, with particular attention to federal law, as well as at some
related legal issues such as child abduction and enforcement. It also
discusses a number of new policy and legislative options for Canada.
AND ACCESS LAW
Family law is an area of
divided legislative responsibility in Canada. While the Constitution
Act, 1867 reserves the area of divorce to the federal Parliament,
it grants jurisdiction with respect to property and civil rights to the
provincial legislatures. Parliament has exclusive jurisdiction to legislate
in the area of substantive divorce law, which includes corollary matters
such as support and custody. Provincial legislation in the family law
area covers all matters related to the separation of unmarried couples;
it also applies to matters such as property division, enforcement of support
and other obligations, as well as support and custody in cases involving
unmarried couples or married couples where no divorce is sought. Provincial
law also governs adoption, child protection, change of name, and matters
related to the administration of the courts. Because of the overlapping
nature of family law jurisdiction, most reform initiatives are developed
through coordinated federal-provincial-territorial efforts. Nonetheless,
there are significant differences amongst the provincial family law statutes
that are in place.
Custody and access disputes
in Canada may be resolved under the federal Divorce Act(2)
if the action is brought within the context of an application for divorce,
or under provincial or territorial family law legislation in other cases.
The application of these laws to custody and access matters does not mean
that the decisions are always made by judges, however. Indeed, most custody
and access matters are settled between parents, with or without the assistance
of lawyers, mediators or social workers. Very rarely are the courts called
upon to make final custody determinations.
Custody of children is a
broad concept encompassing all of the rights and obligations related to
a child or the children of a marriage. During the marriage, these rights
are vested equally in both parents. In cases of separation or divorce,
custodial rights and obligations are usually divided, most often so that
one parent has custody and provides the main residence for the child,
while the other parent is granted access, or visitation and information
rights. This area of family law is perhaps the most difficult, given the
emotional issues involved and the serious consequences of a determination
that may be seen as "taking the child away" from a parent who
loses custody to a former spouse. It is when parents are unable to resolve
their conflict with each other, or at least to prevent their children
from being drawn into it, that the harmful consequences of divorce are
likely to be most severe.
Divorce Act - Custody and Access Applications
Custody of and access to
children are two of the forms of corollary relief that may be granted
by a court under sections 15 to 19 of the Divorce Act, 1985. Corollary
relief may be sought by a petitioner in his or her application for a divorce,
or by the responding spouse in a counter-petition. Along with the granting
of a divorce, a court may make orders for child or spousal support, or
custody of or access to a child or children of the marriage, or an order
varying a custody or support order.
Applications for custody
of or access to a child are made under section 16 of the Divorce Act,
and may be made by either or both spouses, or by any other person with
leave of the court.(3) These
orders may also be made on an interim basis pending a final resolution;
in some cases an order for joint custody may be made rather than custody
being granted to only one spouse. Section 16(5) provides that a spouse
who is granted access to a child is entitled to make enquiries of the
custodial parent and be given information about the health, education
and welfare of the child. The factors to be considered in making a custody
and access determination, as provided in subsections 16(8) and (9), include
the best interests of the child of the marriage as determined by reference
to his or her condition, means, needs and other circumstances; the past
conduct of any person must not be taken into consideration unless that
conduct is relevant to the ability of that person to parent the child.
Section 16(10) requires
the court, in making a custody and access order, to give effect to the
principle that a child of the marriage should have as much contact with
each parent as is consistent with that child's best interests, and that
therefore the court must consider each parent's willingness to facilitate
the exercise of access by the other. This provision is often referred
to as the "friendly parent" rule. It is based on the premise
that maintaining close contact with both parents is in the child's best
interests, and that any conduct by a parent that interferes with the other
parent's relationship with the child is to be discouraged.
Section 17 of the Act sets
out the requirements to be met in an application to vary a support or
custody order. The maximum contact or "friendly parent" rule
is reiterated for consideration in the context of applications to vary
custody orders in section 17(9). The test to be applied, as set out in
subsections 17(4) and (5), is that there must have been a change in the
condition, means, needs or other circumstances of the spouse or the child
since the making of the original order. Judges generally require this
material change of circumstances to be demonstrated in order to justify
altering the status quo.
Section 16(9) of the Divorce
Act specifically precludes the court from considering the past conduct
of a parent in making a custody or access order, unless that conduct is
relevant to the person's ability to act as a parent to the child. This
provision was intended to prevent evidence about marital misconduct from
entering into the court's consideration of custody and access matters;
however, its impact has become more controversial now that many divorces
proceed on a no-fault basis. The provision has had the effect of excluding
consideration of certain types of information about the family's history
in the custody and access context. For example, until very recently the
courts had generally held that violence by one spouse against the other
did not necessarily indicate anything inappropriate or negative about
the former's parenting; only violence directed toward the child would
be considered relevant to the custody determination. This counter-intuitive
reasoning prevailed until the 1989 Young v. Young case,
in which the judge's finding of abuse during the marriage was held to
relate directly to the father's "ability to parent the children on
a full-time basis."(4)
Since 1989, it has been
argued (and demonstrated) more frequently that witnessing any family violence
or other form of abuse does have an impact on a child's well-being, and
should be considered relevant to an evaluation of the abuser's parenting
abilities.(5) Though most
American states have legislation that specifically mentions domestic violence
as a factor relevant to determinations in child-related cases,(6)
in Canada, only Newfoundland's family law statute makes specific reference
to violence as relevant in this context.(7)
"Best Interests" and Other Tests for Custody and Access
Where the parents are not
able to settle the custody and access issues themselves, the determination
will be made by a court. Family law lawyers often advise their clients
that leaving it to a stranger to decide where their child will live should
be a remedy of last possible resort, and that they would be wise to attempt
to settle the question by agreement with their former spouse. Indeed,
such matters are often resolved outside of litigation. When resort to
the courts is necessary, however, case law provides several tests to guide
the decision-making judge. The most commonly applied test in custody and
access matters, whether under the Divorce Act or provincial law,
is the "best interests" test.(8)
Section 16(8) of the Divorce
Act requires the court to take into account the best interests of
the child of the marriage in making the custody and access order. The
"best interests" test has been criticized as being too ambiguous,
but it is also supported on the grounds that it provides the only criterion
flexible enough to enable the courts to reach the right result for each
child in his or her particular circumstances. In applying it, the court
will generally consider any evidence about the child's welfare, whether
provided by the parents, other interested relatives or friends, or mental
health professionals retained as expert witnesses by a parent.
The test requires that any
consideration relevant to the child's interests be taken into account;
some of the most important considerations have been held to include the
child's relationship with each parent; the child's moral and emotional
welfare; the wishes of the child, if he or she is old enough to express
them; the desire to avoid separating siblings; and the willingness of
each parent to facilitate the other parent's access to the child. The
preservation of the status quo, so as to disrupt the child's living arrangements
as little as possible, is often a factor of overriding influence, particularly
in interim custody and access determinations. In some jurisdictions, legislators
have spelled out in family law statutes a list of criteria to be considered
by the courts in determining the child's best interests. Where this mechanism
has been employed, it has been seen as an effective method of incorporating
and giving formal support for some of the previously unregulated aspects
of custody and access law, such as the desirability of maintaining contact
between children and their grandparents.
One useful criterion for
determining which arrangement will be in a child's best interests, the
"primary caregiver" rule, has been relied upon by many judges
and by lawyers who are assisting their clients in custody negotiations.
This rule is based on the premise that it will be in the child's best
interests to continue to be in the care and custody of the parent who
has been his or her primary caregiver throughout the marriage.(9)
In most families, one parent (often the mother) has provided most of the
child care throughout the lives of the children. Indeed, although our
family law statutes put parents on an equal footing with regard to applications
for custody and access, it should be noted that, although there are exceptions,
parents rarely share parenting responsibilities equally during a marriage.
Clearly there is a basis for maintaining the primary caregiver's role
in order to limit the upheaval experienced by children, especially young
children, after a separation. Regardless of the final custody and access
arrangement, it has been observed that the termination of an unhappy marriage,
and the resulting opportunity for each spouse to parent independently
of the other, may offer a previously less-involved parent the chance to
become a better parent, to the ultimate advantage of the child.
Joint Versus Sole Custody
Although they are commonly
used, the terms "custody" and "access" are frequently
misunderstood. Custody of a child includes the responsibility and power
to make decisions with respect to the child, in areas such as schooling,
medical care, religious upbringing, and other important aspects of the
child's life. Traditionally, the decision-making power always went along
with the day-to-day care and control of the child and the provision of
the child's home. The non-custodial parent is generally granted access,
which comprises both visitation privileges and a right to be given certain
information about the decisions being made by the custodial parent.
Under pressure from advocates
for joint custody and other new approaches to post-divorce parenting,
some of which have altered the traditional pattern of severing custody
and access rights, a wide range of options have been tried and modelled,
so that families, particularly those best able to resolve their disputes
amicably, can choose the division of custody and access rights and obligations
that best suits them. Custody and access arrangements can now be found
at various points along a spectrum between the traditional arrangement
of custody to one parent (usually the mother), with access to the other
(generally the father) on Wednesday evenings and every other weekend;
and the type of joint custody arrangement where the child spends alternative
weeks or months in each parent's home, with decision-making power being
shared equally by both parents.
The courts rarely impose
joint custody orders in the absence of the consent of the parties. It
is thought that unless the parents can work together amicably and constructively
enough to set up their own custody and access arrangement, joint custody
would not be in the child's best interests. Joint custody implies sustained
and frequent contact between the parents as they resolve together all
of the parenting issues that arise in relation to the child over time.
These parents need to be able to communicate frequently and share authority
to decide schooling, religious, medical and other contentious questions
as they come up. The courts have generally held that such an arrangement
should not be imposed on unwilling parents. Joint custody also has important
repercussions for the future mobility of the parents, and has been a factor
in a number of cases where a joint custodial parent has been denied approval
for a proposed move outside the jurisdiction in which both parents have
been residing after separation or divorce.
A joint custody order means
that the parents will have equal decision-making authority with respect
to the child. It does not always mean that the child spends an equal amount
of time with each parent, although this is often the objective of a parent
who is seeking joint custody. Under a joint custody arrangement, the details
of where the child will reside are spelled out. The order may look like
a traditional custody and access order, with the child having a regular
residence with one parent, and spending alternate weekends with the other.
Many families find that the children are more comfortable staying with
one parent most of the time, especially during the school year, and visiting
the other frequently. At certain stages of a child's development, it may
be unduly disruptive to be moving back and forth regularly between parents.
Where they are able to do so, some parents can make these moves easier
by providing homes in the same neighbourhood, so that children will at
all time be close to the same friends and school.
The movement toward joint
custodial, divided-residence arrangements reflects the desire of many
parents to maintain close, involved and meaningful relationships between
both parents and their children following divorce. Equally important,
from a mental health perspective, is to protect children from being drawn
into post-separation conflict between their parents; in some cases, the
shared decision-making required for joint custody would exacerbate parental
conflict. Courts need to exercise caution where the non-custodial spouse
(or the one who has been less involved in parenting before separation)
advances as an argument for joint custody that the child's time should
be divided equally between the parents on grounds of fairness. Such arguments,
which give undue weight to the interests of the parents, could readily
obscure the chief objective of the custody-access determination, the child's
best interests. Attention must be on whether the child's best interests
can be met by an arrangement that involves frequent moves between his
or her parents' residences. When such an arrangement is attempted, there
may be a long period of tinkering before a schedule is finalized within
which all the parties are comfortable.
Access Arrangements and the Rights of Access Parents
Whenever one parent is awarded
custody of a child, the other is generally awarded access. Again the test
applied is the best interests of the child. The access provisions usually
spell out the schedule of visits year-round, specifying how holidays such
as birthdays and summer vacations will be divided. In cases where there
is a high degree of parental cooperation, there may be a very flexible
award of "generous" or "reasonable" access. This type
of order is more difficult to enforce, however, should a dispute arise
between the parents; a specific access schedule becomes necessary where
cooperation is not maintained. Even where a specific schedule has been
set out in a court order, parents may have to become more flexible in
order to accommodate the wishes and extra-curricular activities of children
as they get older. Restrictions on access, such as preventing a parent
from removing the child from the jurisdiction, requiring that access privileges
be exercised under the supervision of a third party, or specifying that
the access parent refrain from consuming alcohol or drugs, may be ordered
Two Supreme Court of Canada
decisions on the rights of access parents were released in 1994: Young
v. Young, and its companion case from Quebec, Droit de la famille-1150
D.P. v. C.S.(10)
These decision dealt with the rights of access parents, both fathers,
to involve their children in religious activities and discussions. Although
the results in the two cases differed, some common threads ran through
the decisions. Access determinations are made on the basis of the best
interests test, which the judges all agreed is a fact-based, child-focused
test. The interests or desires of the custodial parent are not relevant
unless they coincide with the child's best interests.
Facilitating the exercise
of access is an important priority in family law, as is indicated by the
Divorce Act "friendly parent" rule. Maintaining close
ties with both parents can be a very important means of reducing the negative
impact of divorce on children, and access is rarely denied altogether.
This presumption is borne out in the social science literature, where
it has been shown that continued contact with both parents, without friction
or conflict being felt by the child, can enable the child to recover more
quickly from the parents' divorce and to avoid negative repercussions
for his or her own development.(11)
However, it has been pointed out that, although the role of access parents
is being strengthened, so as to encourage the maintenance of meaningful
relationships between a child and both parents, the most important factor
in the welfare of a child following separation is the child's relationship
with the custodial parent.(12)
Therefore, judges who are considering enhancing the role of an access
parent must exercise caution, in order to avoid exacerbating conflict
between the parents or undermining the custodial parent's relationship
with the child, thereby adding to that parent's stress.(13)
In extreme cases, access
to the child by the non-custodial parent may present a risk that outweighs
any potential benefit to the child from this continued relationship. A
court may order that a non-custodial parent's access be supervised where
the circumstances, such as physical or sexual abuse of the child, dictate.
In cases involving violence by the non-custodial parent against the custodial
parent, the exchange of the child might be ordered to take place in a
public place, such as a shopping centre or the lobby of a police station,
or the court order may require that a specified individual supervise the
exchange. In the worst cases, where a court finds that continuing the
access relationship is no longer in the best interests of the child, access
may be terminated altogether. A complete denial of access is a very rare
outcome, and is unlikely to happen except in protracted cases of repeatedly
harmful or destructive conduct by the non-custodial parent.
Applications for custody
or access may be made by persons other than the parents of a child, if
they are granted leave of the court.(14)
Such leave will usually be granted unless the third party application
is being made for frivolous or vexatious reasons. Even if a leave application
is successful, custody or access will be granted to a third party only
in accordance with the child's best interests. Usually this type of order
will be made in situations where there is a close family member, such
as a grandparent, who has played a particularly important role in a child's
life and whose regular and close contact might be interrupted to the child's
detriment by the parents' divorce.
Enforcement of Custody and Access Orders
While the area of enforcement
falls primarily within provincial legislative competence under the provinces'
authority with respect to "property and civil rights in the province,"
several federal statutes form important components of the system for enforcing
family law orders and agreements. Traditionally, the enforcement of a
support or custody order, as of any other obligation in a civil court
order, fell to the individual support creditor, usually the custodial
parent. Creditors could privately enforce family law orders and agreements
in a number of ways, such as summoning the parent not in compliance, usually
the payor,(15) to a judgment-debtor
examination, garnisheeing wages or other money due to the payor, seizing
property, registering writs against the debtor's name or real estate,
or committal for contempt. This last remedy applied most readily to contraventions
of custody or access orders or agreements.
Since the mid-1980s most
Canadian provinces have established state-run agencies that are responsible
for the enforcement of spousal and child support obligations at no cost
to the creditor.(16) Unacceptably
high levels of non-compliance with support orders and agreements had been
demonstrated for many years, with dire economic consequences for both
the children who were the intended beneficiaries of these orders and agreements,
and their custodial parents (usually mothers). Many of these custodial
parents turned to public assistance for financial relief, to the extent
that eventually the enforcement of support obligations could no longer
be treated as a private matter.
Custody rights under court
order, or stemming from an agreement or implied agreement, are enforceable
under the Criminal Code of Canada. The applicable Criminal Code
provisions were enacted to protect the rights of children to security
and stability by preventing a child's abduction by a parent following
a divorce. Children are protected from being abducted out of their province
of residence, or internationally, by provincial reciprocal enforcement
legislation and by the Hague Convention on the Civil Aspects of International
The enforcement of access
orders and agreements remains a private obligation, usually carried out
by way of contempt of court proceedings, where the penalty may be a fine
or even imprisonment of the custodial parent. Provincial legislation,
such as Ontario's Childrens Law Reform Act, may permit the
court to order the police or sheriff to apprehend and deliver the child
to the access parent. Advocates for non-custodial parents have argued
that the no-fee enforcement assistance with support enforcement provided
by the provinces in the last decade, while not improving access enforcement
mechanisms, has unfairly benefited custodial parents, usually mothers,
without responding to the often-expressed concerns of non-custodial parents,
usually fathers. While some jurisdictions have considered new access enforcement
methods, to date no proposals have gone ahead.
Any form of automatic access
enforcement is particularly controversial; custodial parents often argue
that they may not make the child available as required because of concerns
for the child's well-being. When resort to the courts is necessary in
order to enforce an access obligation, a judge is given the opportunity
to assess the evidence of potential risk to the child before altering
an access schedule or levying a penalty against the custodial parent.
In 1989, Ontario passed new access enforcement legislation (the Childrens
Law Reform Amendment Act, 1988, Bill 124), to allow for speedier access
to the courts and empower the courts to award compensatory access; however,
the Act was never proclaimed. The proposed law was opposed primarily by
women's groups, who claimed that it would make it too easy for non-custodial
parents to draw custodial parents into costly and time-consuming litigation.
Family law issues have featured
on the federal legislative agenda relatively frequently in recent years.
The issue of the right of grandparents to apply under the Divorce Act
for access to their grandchildren was raised by way of a Private Member's
bill that was studied by a House of Commons committee, and defeated in
the spring of 1996. In the same year, the federal government introduced
Bill C-41, which amended the Divorce Act and two other federal
statutes to create the Federal Child Support Guidelines and strengthen
federal legislative measures dealing with the enforcement of child support
obligations. Bill C-41 came into force on 1 May 1997, at the same time
as new Income Tax Act provisions changed the tax treatment of child
support payments, so that they would no longer form part of the taxable
income of the recipient, usually the custodial parent of the child.
Both child support and custody
issues had been on the policy agenda for a decade. As more and more Canadian
families deal with separation and divorce, questions are increasingly
raised about the effectiveness of the family law system as the forum for
resolving disputes and enabling families to recover and move on. In the
course of hearings on Bill C-41, both the House of Commons Standing Committee
on Justice and Legal Affairs and the Standing Senate Committee on Social
Affairs, Science and Technology heard a number of witnesses express pronounced
dissatisfaction with the government's order of priorities, according to
which child support guidelines had been developed before an attempt had
been made to develop legislative reforms in the areas of access to and
custody of children. Members of the Senate Committee were unhappy with
the speed with which Bill C-41 was studied and passed, and felt that the
important custody and access issues raised by witnesses had not been adequately
examined. To facilitate the passage of the bill by the Senate Committee,
the Minister of Justice and the Leader of the Government in the Senate
agreed that a joint Parliamentary Committee would be established to deal
with the issues of access to and custody of children.
A Joint Parliamentary Committee on Custody and Access Issues
The decision to establish
a Joint Committee on custody and access issues reflects the feelings of
Senators who studied Bill C-41 that significant areas of custody and access
law raised by witnesses had not been addressed in the bill, or in any
of the amendments to it. The Senators had also expressed concerns that
the Guidelines, as regulations under the Divorce Act, would not
be subject to the same form of parliamentary review as is applied to new
legislation. In response to this concern, it was agreed that the Senate
Committee would have an ongoing role in scrutiny of future amendments
to the Guidelines.
Many of the access and custody
issues raised by witnesses before the Senate Committee had been outlined
in the Department of Justice report Custody and Access: Public Discussion
Paper, released in March 1993. This paper resulted from the federal
government's participation in the review of the legal regime governing
child custody and access undertaken by the Federal/Provincial/Territorial
Family Law Committee (the "Family Law Committee"), and was intended
to encourage public participation in the review process. To date, no follow-up
or summary document has been published on the results of this consultation
effort. Departmental officials told the Senate Committee that priority
had been given to child support and enforcement issues by both the Family
Law Committee and the federal Justice Department; the government's view
was that adequate custody/access and access enforcement remedies already
exist under the Divorce Act or provincial laws.
Outstanding Custody and Access Issues
Some of the very contentious
issues raised by witnesses before the Senate Committee and likely to be
considered by a Joint Committee studying custody and access issues include:
the adequacy of current access enforcement mechanisms; the rights of second
or subsequent families; the desirability of mandatory mediation of divorce
disputes; the rights of grandparents or other third-parties to apply for
access or custody; mobility rights of parents after divorce; the information
and other rights of non-custodial parents; and the psychological and developmental
effects of divorce on children. The Senators were also very interested
in testimony about the impact of the current "language of divorce"
on divorcing parents, and their children. Witnesses argued that the expressions
"custody" and "non-custodial parent" have an undesirable
alienating and diminishing impact on families, and particularly on the
parent who does not provide the child's primary residence after divorce,
most often the father.
A Joint Committee might
also study examples of new measures in place in other Canadian jurisdictions,
or in the United States or Europe. For example, some witnesses on Bill
C-41 spoke favourably of the "parenting plan" approach to custody
and access, adopted in a number of American jurisdictions, whereby a legislative
presumption in favour of joint custody or shared parenting has been created;
joint custody is presumed to be the optimal solution for every divorcing
couple, and sole custody will only be granted if the contrary can be proven.
However, this mechanism is very strongly opposed by some, and a significant
number of those jurisdictions that had implemented a presumption in favour
of joint custody have since retreated from it. Other witnesses referred
to divorce education, a model that has been implemented in several Canadian
cities as well as some in the United States, whereby parents who are divorcing
are given courses on the possible impact of their post-separation behaviour
on their children. The aim of these programs, which have had differing
levels of success so far, is to prevent parents from engaging in some
of the types of conduct, such as involving the children in their own ongoing
conflict, that have been shown to be most likely to inflict psychological
damage on their children.
As others have noted, the
solutions to the difficulties inherent in meeting children's needs following
divorce and securing the best possible outcome for their development and
mental health, may not come from legislative change. More and more families
are now undergoing divorce and working through the long-term challenge
of parenting in two households; their experiences will offer lessons to
other parents about how to do what is in their children's best interests.
The majority of divorcing couples in Canada make their post-separation
arrangements for their children with very little guidance from legislation
or courts. Positive or negative outcomes for children seem to be more
dependent on the level of conflict between their parents, and the ability
of those parents to shield them from it, than on the types of legislative
provisions that apply to the divorce litigation.
For those parents who are
unable to settle their differences, the family law system can sometimes
be an effective tool for terminating conflict. Litigation provides a formalized,
objective forum in which conflicting versions of events can be weighed,
decisions made, and mental health professionals involved when this is
appropriate. One of the most crucial roles of the legal system is to ensure
that in the most extreme high-conflict divorces, children are protected
from violence, other abuse, or abduction. However, the family law system
is expensive, time-consuming, and adversarial; the outcome of litigation
is usually unpredictable and almost always disappointing to at least one
of the participants. Much more work will have to be done in order to ensure
an optimal outcome for all children whose parents divorce. One step is
already being taken, as academics, policy-makers and legislators critically
analyze family law and consider the experiences of those who have been
affected by it.
The 1986 changes to the
Divorce Act, altered the grounds for divorce in an effort to reflect
the needs of spouses who wished to end unhappy marriages without the rancour
that might arise from a claim based on evidence of marital misconduct.
Since that time, the attention of many involved in or observing the family
law system has been transferred to the children, who are so profoundly
affected by parental decisions made at the time of a divorce. Although
the needs and welfare of these children are inextricably tied up with
those of their parents, any policy or legislative change must be made
in the context of a concerted effort to distinguish and separate the desires
of their parents from the consideration of the children's interests. This
approach reflects the shift away from looking at marriage (and divorce)
as merely a set of legal rights and obligations between adults, to a recognition
of its importance as the context for the development and nurturing of
healthy, happy and secure children.
Bala, Nicholas. "Spousal
Abuse and Children of Divorce: A Differentiated Approach." (1996)
13 Canadian Journal of Family Law, 215.
Department of Justice. Evaluation
of the Divorce Act: Phase II. Ottawa, May 1990.
Douglas, Kristen. Divorce
Law in Canada. Current Issue Review 96-3E. Parliamentary Research
Branch, Library of Parliament, Ottawa, up-dated 12 June 1997.
Hovius, Berend. Family
Law: Cases, Notes and Materials. Third Edition. Carswell, Toronto,
There were over 77,000 divorces per year in Canada between 1991 and 1994.
Statistics Canada, "Divorces, Canada, the provinces and territories"
[24 July 1997].
Divorce Act, R.S.C. 1985, c.3, (2nd Supp.), as amended.
Ibid., section 16(3).
Young v. Young (1989), 19 R.F.L. (3d) 227, at 235 (Ont.
S.C.), cited in Nicholas Bala, "Spousal Abuse and Children of Divorce:
A Differentiated Approach," (1996) 13, Canadian Journal of Family
Law, 215, at p. 253.
Peter G. Jaffe, David Wolfe, Susan Kaye Wilson, Children of Battered
Women, Sage Publications, Newbury Park, California, 1990, Chapter
2, cited in Department of Justice, Custody and Access: Public Discussion
Paper, Ottawa, March 1993, at p. 12.
Bala (1996), p.252.
Children's Law Act, R.S.N. 1990, section 31(3).
All Canadian jurisdictions apply the "best interests" test as
the primary factor in custody and access matters, except the Northwest
Territories, where the Domestic Relations Act requires consideration
of the welfare of the child and the conduct and wishes of the parents.
Karen M. Munro, "The Inapplicability of Rights Analysis in Post-Divorce
Child Custody Decision-Making," (1992) Vol. XXX, No. 3, Alberta
Law Review, p.852 at 895.
(1994), 49 R.F.L. (3d) 117; (1994), 49 R.F.L. (3d) 317.
See for example Susan Maidment, Child Custody and Divorce, Croom,
Helm, London, 1984, cited in Department of Justice, Custody and Access:
Public Discussion Paper, at p. 9.
Judge Weisman, "On Access After Parental Separation," (1992)
36 R.F.L. (3d) 35, cited in Berend Hovius, "The Changing Role of
the Access Parent," (1993) Canadian Family Law Quarterly,
Vol. 10, p. 123.
Hovius (1993), p. 185.
Leave is required under the Divorce Act, but many provincial family
law statutes permit applications for custody or access by "any person."
Support payers are referred to as "payors" in family law.
For more information about the enforcement systems in place in the provinces,
and other issues in child support law, see "Child Support: Quantum,
Enforcement and Taxation," BP-345E, Parliamentary Research Branch,
Library of Parliament, February 1996.