Terminology in Family Law Fuelling Conflicts

The potential for conflict in litigation is likely no higher than it is in family law. This tension is created in part by an adversarial system around children, which should in most cases be collaborative or at least solution-oriented (child-centred, by another name), but also the terminology that is used in these conflicts.

The current legislative scheme in Ontario was recently summarized by Justice McArthur in Morrison v. Morrison, as follows,

[14] The legal issue involves what is in the best interests of the child. The court is required to consider the provisions outlined in Section 24(2) of the Children’s Law Reform Act in relation to sole or interim custody. Additional considerations are contained in Section 24(3) and (4) CLRA. Those provisions are as follows:

24 (2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application.

 (3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

[15] The current legislation is permissive and not mandatory. The court may grant custody or access to the child to one or more persons. The best interests of the child in situations of breakdown are better served with considered parenting plans and communications that acknowledge and will work beyond the past difficulties to flexibly address the actual needs of the child.

[16] Unilateral actions and adversarial approaches exacerbate the winner/loser effects and play into dangers of “custody” and “access” terminology. This case is an example how unilateral actions and approaches by both parties that have created conflict and crisis. Conflict, particularly where the children become involved, must be discouraged and can be avoided in circumstances like this.
[emphasis added]

The relationship of children beyond just the parents involved in the family law conflict was added to the CLRA under Bill 34 in 2016. The intent was that the needs and circumstances of a child during high conflict litigation may often be better ascertained by those not directly adding to that conflict.

The federal government introduced amendments to the Divorce Act earlier this year under Bill C-78. Although the Bill received Royal Assent on June 21, 2019, most of the provisions do not come into force until March 1, 2021, which was delayed due to the pandemic.

These changes also add extended family and other important people into the child’s best interests, and also include “the child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage.” Contextual factors about a child’s heritage and upbringing have long been ignored or not prioritized adequately, especially in child protection cases involving minority families.

In discussing the best interests of the child in Young v. Young, the Supreme Court of Canada stated,

The best interests of the child must be approached from a child‑centred perspective. It is not simply the right to be free of significant harm. It is the right of the particular child in question to the best possible arrangements in the circumstances of the parties, taking into consideration the wide spectrum of factors which may affect the child’s physical, spiritual, moral and emotional well‑being and the milieu in which the child lives.

Unfortunately the very terminology behind notions childcare arrangements may not be child-centred and in their best interests. A number of studies have demonstrated that family law litigants would prefer alternative terminology to “custody” and “access,” as they fail to properly describe the dynamics between separated parents. While judges also seem to prefer to use alternative terminology, lawyers still utilize these terms, apparently oblivious to how it can spurn additional and unnecessary conflict.

Consequently, Bill C-78 also amends the Divorce Act by replacing the terms custody and access with “decision-making responsibility” and “contact order.” The former now specifies that it relates to health; education; culture, language, religion and spirituality; and significant extra-curricular activities, which clarifies the domains in which decision-making should occur. The latter still maintains the maximum contact principle under ss. 16(10), 17(9), but it now adds additional responsibilities to the person making the decision-making to do so in the best interest of the children, directly in the statute.

Custody orders are replaced with parenting orders, and parents can submit a parenting plan, which can include areas of agreement around parenting time, decision-making responsibility or contact. Parties to a proceeding also have the responsibility to protect a child from conflict, and to utilize family dispute resolution systems wherever possible.

In combination, the new statute has a strong impetus pushing parties to find resolution outside of court, including ordering them to attend a family dispute resolution process such as negotiation, mediation and collaborative law. Even legal advisors have a responsibility in the the statute to utilized family dispute resolution processes. A notable exception is family violence, which is now defined and added to the statute, and must now be taken into consideration by the court.

The explicit policy reason for these changes, and accompanying amendments to other statutes, is the assumption that family disputes create poverty, especially due to the cost of litigation itself.

Ontario has recently introduced Bill 207, to introduce similar amendments to the CLRA around family law terminology. One significant difference is an equal presumption to decision-making,

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child.

This is an approach that was specifically rejected at the federal level, and an issue that has had divided support across Canada. Although this presumption can be rebutted based on a number of factors, including family violence, it’s unclear whether this approach will encourage parties to collaborate, or force parties who shouldn’t be working closely together to do so anyways.

Section 27 of the proposed CLRA stays any provisions that are commenced under the Divorce Act, so we may see very different approaches towards parenting plans emerge at the Ontario Court of Justice and the Superior Court of Justice. This distinction alone may provide further insight into how reduce high conflict situations, and the best ways to ensure that parents continue to work together in the best interests of the children, even after the dissolution of the relationship.