There’s No Hurt Like It
A Position paper on Custody, Access and Child Support
Canadian Council for Co-Parenting
Written by: Patrick Mullin / (former) CCC Chair
The CCC mandate and purpose
The Canadian Council for Co-Parenting (CCC) is an Ottawa-based non-profit group whose members are mothers, fathers, step-parents, grandparents and other concerned family members. Established in the early 1980s, the Council is run by volunteers and meets monthly. The mission of the CCC is to advocate the rights of children of separation and divorce to close, frequent and continued contact with both parents. Our members, who have experienced the traumas of separation/divorce are willing to assist anyone currently involved in this complex, emotional time of turmoil.
The CCC has three pillars:
1) To promote joint custody as a policy and as the preferred choice of family law
2) To promote the concept of co-parenting through mediation as mandatory in family law
3) To promote the rights of children to free and unhindered access to their parents, grandparents and extended families
It is difficult not to recognize the extreme complexity of a couple separating. Children compound the situation. There is anger, frustration, distrust, disappointment and sometimes violence. There is simply no hurt like it. It is the CCC’s position that the current adversarial system aggravates rather than ameliorates the situation. Changes, for the children’s sake, have to be made. We ask all government levels to consider them now.
Our Limitations
The CCC recognizes its limitations. As a completely volunteer organization with no outside funding sources, we recognize that custody, access and support issues are wide-ranging and that there is no shortage of literature in this area. We cannot claim to be experts. Applied research takes time and money. Our limitations are prescribed by the nature of our organization…..our beliefs and concerns through our personal experience.
The Current Debate
The CCC recognizes the intense emotional nature of the occurrence of separation and divorce. CCC also recognizes that no matter how hard governments and the legal system try to address this, fairness and justice are difficult behaviors to legislate especially in times of hurt, distress, and emotional upheaval.
For the children, the adjustment and negative impacts of separation and divorce can be lifelong. The present adversarial nature of the justice system does little to ameliorate this situation. In Children’s Self Concepts: Are They Affected by Parental Divorce and Remarriage:
“It is ironic, and of some interest, that we have subjected joint custody to a level and intensity of scrutiny that was never directed toward the traditional post-divorce arrangement (sole legal and physical custody to the mother and two weekends each month of visiting to the father.) Developmental and relationship theory should have alerted the mental health field to the potential immediate and long range consequences for the child of only seeing a parent four days each month. And yet, until recently, there was no particular challenge to this traditional post-divorce parenting arrangement, despite growing evidence that such post-divorce relationships were not sufficiently nurturing or stabilizing for many children and parents.”
Our position is that we need a change in emphasis via a statutory statement of policy or principles, to eliminate the win/loser aspect of separating individuals and the chattel-like partitioning of children. In Long Term Effects of Divorce on Children: A Developmental Vulnerability Model:
“The continued involvement of the non-custodial parent in the child’s life appears crucial in preventing an intense sense of loss in the child…. The results of this study indicate that arrangements where both parents are equally involved with the child are optimal. When this type of arrangement is not possible, the child’s continued relationship with the non-custodial parent remains essential.”
Our society is littered by the carnage of loving parents and children destroyed by a system that purports to perform in “the child’s best interests.” Professor Julien D. Payne, Faculty of Law, University of Ottawa has studied the economic, emotional and parenting crises of marriage breakdown. Prof. Payne puts our adversarial system in this perspective:
“To the extent that our courts continue to resolve parenting disputes on the basis of competing quasi-proprietary parental claims, the “best interests” doctrine, which supposedly governs custody adjudications, will remain more myth than reality.”
Indeed we know of situations that even when two parents have agreed to co-parent after a marriage breakup, the effect of legal representation in the process aggravates and destroys their initial good intentions of co-parenting. How can we consider it legal justice that when two loving parents face the anger and disappointment of separation and divorce, they are given the option to go into battle to hurt, maim and discredit? Current family law, federal and provincial, as written in the statutes, allows this to happen.
Much has been written about the effect of divorce on children. The CCC’s position is that there is, and has been, enough evidence for lawmakers to do whatever needs to be done in order to better encourage co-parenting in the 90′s and beyond. It is in all our best interests.
Child Support Issue
The intent of the Federal / Provincial / Territorial Family Law Committee’s Report and Recommendations on Child Support (January 1995) was an attempt to standardize a formula that could be used as guidelines for custodial / non-custodial support decisions throughout Canada. The CCC applauds that effort in order that there is consistency in judgments. However, the CCC does not support many of the recommendations of the report. The entire picture, child support, custody, and access must be looked at together.
We consider the report unbalanced and biased in favour of the custodial parent to the detriment of the “access parent”. In short, we believe that the report, although laudable in its intentions, will aggravate and not ameliorate the situation of divorcing couples. Its thrust accentuates the concept of winner / loser to the detriment of the best interests of the children. According to Prof. Payne:
“The judicial dissolution of a marriage is intended to sever the marital bond – not child/parent bonds. The twin legal concepts of “custody” and “access”, terms used by lawyers and the courts to define parenting privileges and responsibilities on marriage breakdown or divorce, tend, however, to stress individual rights, rather than the interests of the family as a whole. The integrity of the fragmented family is thus threatened.”
Our fear is that if the guidelines are adopted as presented in the report, it will lead to even greater bitterness, acrimony and suffering for all parties, particularly the children. The CCC believes that the report’s recommendations if adopted, will result in an increase in the number of custody battles. To the “victor” , the children, the support, and the continuing opportunity to be a parent. To the “loser”, dismay, distrust and “deparenting.” Too often, the results of this affront on the non-custodial parent fuels intense depression due to the complete loss and meaning of life. Family violence is often the outcome as we have too often most recently seen.
It is simply unfair and unjust to expect complacency when the parenting function has been taken away. Kids need both parents….and both parents need their kids.
Child support is more than just a dollars and cents issue. It is also about biological ties and human feelings. Improvements in the fairness of custody and access will yield tangible results. From the U.S. Bureau of Statistics, 1995, it was more likely that those noncustodial parents with visitation and/or joint custody paid support (79 % versus 56 %) . 5 The report did not deal with this irrefutable linkage and therefore not giving priority to “the best interests of the children.” Although we have not been able to uncover any similar data from federal, provincial or any other sources, the CCC believes that compliance figures are probably similar in Canada. Before legislating enforcement measures, governments must consider this critical evidence.
Enforcement/ The “Dead-Beat” Parent
Current government initiatives, both federal and provincial, are expected to move in the direction of tough enforcement measures for parents who are in default of support payments. While there is no argument that there are indeed millions of dollars owing in support arrears and that it is contributing to child poverty in Canada, the CCC feels that the total issue., support… custody… and access are all a part of the problem. We want to be part of the solution in a fair and balanced way.
The Canadian Council for Co-Parenting does not support any parent who has access but, for no good reason, does not assist in the financial responsibilities of his or her children. Indeed, in some cases, enforcement may be necessary. Co-parenting, by definition, means caring and sharing. It means an equal chance at parenting; it means living up to those responsibilities consistently.
The “dead-beat” scenario is not that simple. Unfortunately, many loving parents are “deparented” by a legal system content with a win/loser approach. Losing your children is a hurt like no other. Many individuals simply withdraw, disgusted, dismayed and angered by the inequities and imbalance of many court decisions. The Family Law Committee’s Report and Recommendations would aggravate that situation.
What is particularly surprising is a total lack of accurate information in Canada which supports the often reported “dead-beat” perception of the issue. The CCC has not been able to locate reliable recent data which conclusively establishes a specific percentage of those who legally should pay support and do not. We have been unable to find information that clearly establishes the percentage of “access parents” who by necessity and not by choice, default on support. As well, it appears that there is no information, no recent studies done in Canada documenting the reasons why some “access” parents default.
We know that there is real hurt out there. In terms of custody and access, the CCC feels that a new emphasis towards co-parenting and joint custody is a critical component in the support default problem. The State of Washington, noting the effect of ensured visitation rights, is providing “administrative redress” for non-custodial parents who are having access problems. They note that studies show a link between enforcement of visitation and payment of support, and further that “the state has become involved in the enforcement of support, but provides no assistance in enforcing visitation”. ”
In Canada it was reported in Canadian Research Institute for Law and The Family (May 1992) that almost 3 out of every 4 non-custodial parents reported problems in visiting with their children. The CCC asks that family law in Canada ensure a similar approach to fairness in monitoring visitation rights, as in the Washington State effort.
Balance in the Courts?
The CCC believes that shared parenting is an egalitarian approach which allows each fit parent substantial time with their children. Loving relationships with both parents are not lost. Balance, by definition implies equality. Unfortunately, if this is the premise of the current legal system, then the record paints an altogether different picture.
According to Statistics Canada in 1992, mothers were given sole custody of children in 71.9% of cases, as compared to 11.7% for fathers. The U.S. Bureau of Statistics in May 1995 reports that custody was given to mothers 86.2% of the time, fathers 13.8% .
The CCC would like to see an in-depth study of this situation. We look for an analysis of custody decisions in the courts to further understand the whole picture. If accurate, these figures do underscore the need for a new direction and emphasis in family law. The CCC believes that co-parenting /joint custody should be a principle to be encouraged and followed for the good of society as a whole. That implies a concerted effort to be fair and equitable to both parents.
The Washington State Principle
The comment that most often appears when there is any mention of mediation/co-parenting is that no one can force a couple to “get along” upon separation/divorce. The CCC concurs. People who are angry and bitter are adversarial. However, the CCC believes that there should be a new emphasis through a statutory declaration in family law that, unless there are good reasons to the contrary, joint custody/co-parenting is a principle which federal and provincial governments recognize as the most equitable and beneficial for all. The adversarial option regarding children and loving parents should be the exception rather than the rule. Can it be done?
In the Revised Codes of Washington State: Dissolution of Marriage-Legal Separation (26.09.002) , the above principle is clearly stated as policy:
“The state recognizes the fundamental importance of the parent-child relationship to the welfare of the child, and that the relationship between the child and each parent should be fostered unless inconsistent with the child’s best interests. The best interests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, health and stability and physical care. Further, the best interest of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents, or as required to protect the child from physical, mental or emotional harm.”10
The CCC is not aware of any federal or provincial statutes in family law that state as clearly and unequivocally that the “child’s best interests” is indeed a continuing, loving and lasting relationship with both parents. Compare the above with Section 16(1) of the Divorce Act of Canada:
“Order for Custody.- A court of competent jurisdiction may, upon application by either or both spouses or by any other person, make an order respecting the custody of, or the access to, or the custody and access to, any or all of the children of the marriage..” And The Children’s Law Reform Act of Ontario Section 20 (1) ….:
“Father and mother entitled to custody.- Except as otherwise provided in this part, the father and the mother of the child are equally entitled to custody of the child.”12
It is interesting to note that in the Ontario Family Law Act, its emphasis of fairness and equality is applies solely in dividing up the property and chattels of the separating couple: family property, matrimonial home, financial statement, support obligations, etc. Sadly, this principle of equity and balance as stated in the preamble does not apply to the children….nor to parenting.
In Ontario, couples are required to file a financial statement in order to equalize their affairs. But when it comes to the children who cannot be “separated” so to speak as can tangible assets, they are left….parenting is left….to the win / lose expensive legal fisticuffs which so often throws the original intent of fairness and equality out the window. It quickly becomes a lose / lose situation. All for the lack of a simple co-parenting principle.