Issue Sheet 3: Law, custody and alternatives – Canadian Council for Co-Parenting Ottawa
Divorce is federal jurisdiction, while common law unions (and their breakup) are provincial responsibility. Both parts of civil law fall under provincially-administered courts, with federally appointed judges. In most cases, differences in procedure or treatment is minor, especially if there are children. There are significant differences between Civil law in Quebec and the rest of Canada. Divorce is not just a legal matter, and you may find yourself dealing with accountants, psychologists, social workers, police, mediators and so on. If there are no children involved, and you agree on division of property, you may be able to use a kit or draw up your own agreement, although we suggest getting a lawyer to file it.
Existing Legal & Court Terms:
Custody: often equivalent to sole custody, is the (sole?) right to make decisions about the children
Access: the right to see & spend time with children.
Joint Custody: a legal agreement where both parents share responsibilities for their children. (In practice can vary widely with jurisdiction.)
Joint Physical custody: a legal agreement for children to reside with both parents. (agreement details can vary widely also.)
Assessment: a report to the court, often by a psychologist or social worker, with an opinion of the parenting ability of one or both parents.
Supervised Access: court-ordered requirement not to see children except at places and times controlled by a court-recognized agency, paid by the parent.
Some Options:
As traditional legal arrangements and procedures have often proven costly, adversarial, and not in the interests of parents and children, many parents (and a few enlightened professionals) have worked out alternative arrangements and methods:
Shared custody: both parents share responsibilities for children after separation
Co-parenting: both parents keep the rights and responsibilities they had before separation. The four axioms of co-parenting are:
1. Children get to keep theirmothers and fathers.
2. Shared parenting generally benefits kids, parents and society
3. Shared parenting reverses the adversarial presumption of a fight for custody, into a rebuttable presumption that both parents are fit, thus reducing conflict
4. Parenting rights and responsibilities of both mothers & fathers continue when a marriage ends.
Parallel Parenting: each parent has decision-making authority on issues while the child is with them. A key is minimizing conflicts and perhaps contacts between parents.
Mediation: parents meet with an mediator, ideally a skilled, impartial specialist, who helps them resolve areas of conflict and design their own custody/access or shared parenting arrangements. Comprehensive mediation deals with parenting, financial and other issues. Closed mediation means that parties agree that statements made cannot be used in court. At the conclusion of mediation, the mediator can provide a letter containing only the terms of the resolved issues and outstanding issues.
Arbitration: Referral of an issue to an agree 3rd party– an option when the parents have specific issues (e.g., choice of school) but are having difficulty choosing among several plans for the children. In binding arbitration, parents agree to be bound by an arbitrator’s decision. In advisory arbitration, (rather misses the point, in our opinion) the parents agree to consider the arbitrator’s recommendation.
Collaborative law: (CL) is a way of practicing law in which attorneys for both parents agree to resolve conflict using cooperative strategies rather than adversarial techniques and litigation. One technique is “four-way” settlement conferences. (You, your CL lawyer, your ex- and CL lawyer)
Advantages: generally less costly and time-consuming than litigation; can produce less anxiety than court proceedings; can create a “win-win” climate;. can be less time consuming –no need waiting for a court date; separating parents can feel more in control of proceedings, rather than controlled by courts.
Disadvantages: if CL doesn’t work, you have to go out and hire other lawyers. CL still works “in the shadow of the law” and can still reflect the biases of court judgments. CL can be sabotaged by a truly recalcitrant ex-partner.