INTRODUCTION

Children whose parents divorce experience a fundamental rearrangement of the households in which they have been living. The foundation under their lives shifts, and for many, the resulting disadvantages - economic, social and emotional - may endure for the rest of their lives. Rising public concern about this issue came to the attention of parliamentarians in 1996 and 1997. During parliamentary study of Bill C-41, which amended the Divorce Act to provide for the establishment of mandatory child support guidelines, witnesses came forward in large numbers with compelling stories about the inadequacy of the legal system's mechanisms to deal with custody and access, or parenting arrangements, following divorce.

Particularly when the bill reached the Standing Senate Committee on Social Affairs, Science and Technology, Senators such as Duncan Jessiman, Anne Cools, and Mabel DeWare, Chair of the Committee, made sure that the concerns expressed to them by witnesses were not ignored. Too many witnesses had pleaded with the Senate Committee for consideration of their custody and access-related concerns for Senators to pass the bill without first securing the federal government's commitment that those issues would also be studied. In accordance with the agreement reached between the Senate Committee and the Hon. Allan Rock, Minister of Justice at the time, a parliamentary committee consisting of Senators and Members of the House of Commons was struck to study the issues facing children whose parents divorce, and to look for better ways to ensure positive outcomes for these children.

The Special Joint Committee on Child Custody and Access met first in December 1997 to outline the critical issues concerning parenting arrangements after divorce. Public hearings began in February 1998. The Committee's Terms of Reference comprise the following objectives:

That a Special Joint Committee of the Senate and the House of Commons be appointed to examine and analyze issues relating to custody and access arrangements after separation and divorce, and in particular, to assess the need for a more child-centred approach to family law policies and practices that would emphasize joint parental responsibilities and child-focused parenting arrangements based on children's needs and best interests.

Senators and Members of the House of Commons, from all political parties, approached their task with a great deal of empathy for the suffering of the many adult witnesses, and their children, who had the courage to share their personal tragedies so openly with the Committee. Members were particularly affected by the evidence given by the small number of children and young adults who participated. Most Members of the Committee had some personal or professional experience involving divorce, and so were partially prepared for the evidence they would hear. However, during the 39 often extended public meetings across Canada, at which more than 500 witnesses were heard, Members were continually moved by their many heart-wrenching stories.

The Committee determined from the beginning of its study that its approach would be as open as possible. Every effort was made to accommodate all the individuals and groups that asked to appear as witnesses, and although every possible community and professional organization was offered an opportunity to appear, the huge numbers of individuals who asked to participate made it impossible to hear them all. In every city to which the Committee travelled - including Vancouver, Edmonton, Calgary, Regina, Winnipeg, Toronto, Montréal, Fredericton, Charlottetown, Halifax, St. John's, and Ottawa - the Committee heard from at least a representative sample of the individuals who had submitted requests to appear as witnesses. It had been the Committee's desire to travel more extensively, but time and financial constraints prevented us from doing so. Witnesses presented a vast diversity of opinion; among them were individual parents, children, fathers' organizations, women's groups, and professionals, including lawyers, judges, social workers, psychologists, physicians and others.

Of course, individuals whose divorces had been more or less amicable were underrepresented among the pool of witnesses who asked to appear. Given the nature of the study, Members understood that those who were least satisfied with the divorce process would be most motivated to testify. Some stories did not therefore represent the full spectrum of views of divorced parents. As a result, Members were cautious about solutions based on exceptional cases or worst-case scenarios. Nonetheless, Members recognized the importance of the painful testimony they heard. There is clearly a need for some dramatic revisions in the way parenting arrangements are decided following separation and divorce.

Most witnesses emphasized the importance of custody and access decision making - the current terminology for parenting arrangements after divorce - in the lives of children. Indeed, a certain number linked their unhappy situations with their own suffering stemming from their parents' divorce. As Nick Bala, Professor of Law at Queen's University, told the Committee:

The issues that arise affect the child's life not only while the child is in that stage of life, but through adolescence and indeed through adulthood and through their entire lives. (Meeting #6)

Witnesses before the Committee were in general agreement that most couples who divorce do so without involving the legal system or with, at the most, some lawyer-assisted negotiation and possibly an interim motion or two. Only rarely do people have their custody and access decisions made by trial courts. Although witnesses generally believed that 10 to 20% of divorcing couples become involved in litigation, there was some disagreement about whether this indicates the predominance of amicable decision making or a reluctance to become engaged in litigation, possibly because of a feeling on the part of at least one parent that litigation would be costly and futile, given the likelihood of a decision in favour of the other parent. Even as a forum of last resort, however, the courts were seen invariably as less than desirable places to make decisions about parenting.

It's virtually a truism to say that divorce, by definition, is a hurtful, hostility-provoking process. To the extent that the process involves litigation about parenting, the process is even more hurtful and more painful. The current legal framework-that is, the adversarial process for custody and access determination-has proved to be absolutely, atrociously ill-suited to the needs of the child. (Ian Solloway, Lawyer, Meeting #15, Montréal)

Members of the Committee agree that struggles pitting parents against each other are far from being in the interests of children. Indeed, they obscure the very focus the Committee was seeking to maintain by emphasizing adults and their preoccupations. Cerise Morris, a Montréal psychotherapist, articulated a concern shared by the Committee:

Some women's advocacy groups have argued that fathers' rights systematically take precedence in custody and access disputes in the Canadian justice system, thereby perpetuating women's inequality and even placing some women and children at risk of violence from abusive ex-partners. Advocacy groups popularly known as "men's rights groups" charge that women are unfairly favoured in custody decisions and are allowed by the justice system to arbitrarily and unfairly deprive fathers of sufficient or any access to their children, even when they're meeting their parental and financial obligations. Of course, sometimes truth can be found in both sets of claims. But the danger, as I see it, lies in allowing this area of family law to become the battleground for gender politics. (Meeting #16, Montréal)

Because it had a mandate to focus on children affected by divorce, rather than on parents who were divorcing, the Committee set out to learn what it could about patterns of divorce in Canada at the end of the twentieth century, the developmental and psychological impact of divorce on children, the array of legal and other mechanisms available to assist with child-centred custody and access decision making, and the potential for improving outcomes for children. One of the first things Members wanted to identify clearly was the prevalence of divorce in Canada and the numbers of children affected.

In 1994 and 1995, according to Statistics Canada, there were 78,880 and 77,636 divorces in Canada.1 In each of these years, more than 47,000 children were the subjects of custody orders.2 Divorce rates rose steadily in Canada after 1968, when the first federal divorce legislation was passed, and peaked immediately following the 1985 amendments to the Divorce Act, which introduced marriage breakdown as the single ground for divorce, most often based on a separation of at least one year. Although the fault-based grounds of adultery and physical or mental cruelty are still present in the legislation, 1985 is recognized as the beginning of no-fault divorces in Canada. This trend was described by Adrienne Snow, Policy Coordinator for the National Foundation for Family Research and Education:

Ironically, no-fault divorce legislation, as you know, was intended to reduce divorce rates and remove acrimony from divorce proceedings, but in Canada the numbers are stark. Before the introduction of the Divorce Act in 1968 the divorce rate sat at 8%. By 1987, the year after the institution of no-fault divorce, that figure had skyrocketed to 44%. Last year it fell to a stable rate of around 40%, according to the Vanier Institute of the Family in Ottawa. (Meeting #36)

The increase in the number of divorces has led to the presence of a wide variety of living arrangements for Canadian children. Most Canadians continue to live in family settings, but the form these families take varies increasingly.

According to the 1996 census, 84% of the Canadian population in 1996 lived in a family setting. Married couples with children made up 45% of all families, married couples without children, 29%, lone-parent families, 15%, common-law couples with children, 6%, and common-law couples without children make up the remaining 6%. ... In 1996 ... 15% [of all children under 17] lived in lone-parent families headed by women, as compared to 2% in families headed by men. (Jim Sturrock, Researcher, Department of Justice, Meeting #3)

It is often difficult to uncover Canada-wide family law statistics. As a result, a number of the Committee's key questions about family law and parenting arrangements went unanswered. Divorce statistics are drawn largely from the Central Divorce Registry, which is a repository of information about pleadings filed in divorce cases. Its chief purpose is to monitor the commencement of proceedings, to ensure that two actions do not go ahead between the same two people simultaneously. Its information is limited strictly to what can be read on the face of divorce documents. No information about informal arrangements, rearrangements, variations in court orders, or other important developments can be derived from Central Divorce Registry data. Joe Hornick, Executive Director of the Canadian Research Institute for Law and the Family, cautioned the Committee about

the difficulty of reviewing laws and making proposals for law reform of the Divorce Act without sound empirical research. In the absence of good, objective evidence, all too often decisions are made on the basis of anecdotal and personal experience. (Meeting #20, Calgary)

Witnesses were agreed that in the vast majority of post-divorce arrangements, children are placed in the custody of their mothers. Usually this is by agreement of the parties. Many witnesses felt that this pattern reflects the division of child-care responsibilities in intact households and that parents make this arrangement because it continues the arrangement that existed pre-divorce, or is otherwise in the best interests of their children. Several witnesses cautioned that some men might be inclined to agree to such an arrangement because they believe that their chances of being awarded custody by agreement or by a court are limited. According to Statistics Canada's 1995 report on divorce, 11% of dependent children were placed in the custody of fathers, 68% were placed in the custody of their mothers, and the custody of a further 21% went to the parents jointly.3 These figures include cases where consensual arrangements were made and then formalized by a court, as well as cases where the determination was imposed by a court. They do not include arrangements that were not legally formalized as part of a divorce.

However, the 1995 Statistics Canada numbers on joint custody probably indicate a larger proportion of children in joint custody arrangements than is the actual case, for they reflect only the formal attribution of custody - that is, the parties or the court have identified the custodial arrangement as a joint one. These situations are not all cases where the physical custody of children is split in an equal fashion between the parents. Indeed, the number of children living in arrangements involving substantially shared custody - in terms of time with each parent - is significantly smaller than the 1995 figures indicate. As Statistics Canada reported on 2 June 1998, in the latest release of data from the National Longitudinal Study on Children and Youth, "most children (86%) lived with their mother after separation. Only 7% lived with their father, about 6% lived under a joint custody arrangement, and the remaining (less than 1%) lived under another type of custody agreement."4 This number more accurately reflects the proportion of children living in an equally shared physical custody arrangement. As social worker Denyse Côté reported from her research on joint custody in Québec,

We cannot rely on the statistics that Statistics Canada provides us on joint custody. The statistics we are given are those concerning agreements reached in Court and they do not reflect what is happening in real life. ... However, I can say that there is currently shared physical custody in approximately five to seven percent of cases. These are very limited figures, which vary across the different studies. They never exceed 10%. (Meeting #16, Montréal)

Another key finding from the latest National Longitudinal Study on Children and Youth data is that children are increasingly likely to experience parental separation at a younger age. "One of five children born in 1987 and 1988 had experienced their parents' separating before they reached the age of five. For people born between 1961 and 1963, this same rate was not attained until they were 16 years old." (Yvan Clermont, Statistics Canada, Meeting #35) Clearly this fact will have implications for our understanding of the developmental impact of divorce on these children, as well as the therapeutic and other interventions we need to adopt as a society to improve outcomes for them.

In the course of this study, it became clear to the Committee that while there must be respect for the constitutional delineation of legislative authority in the area of family law, there is an even greater need for co-ordinated or multi-jurisdictional efforts to resolve many of the problems brought to light. In fact, it has long been recognized in Canada that family law is an area of shared jurisdiction, and although the federal Parliament has exclusive jurisdiction to legislate in the area of divorce, most family law initiatives depend upon federal/provincial-territorial co-ordination. Canadian governments have established the Federal/Provincial/Territorial Family Law Committee to work toward this very purpose. In making many of its law reform and other recommendations, this Committee is fully cognizant of shared federal/provincial jurisdiction in the family law area and of the fact that reforms are best initiated in a co-ordinated, multi-level fashion.

Constitutional expert Peter Hogg notes that most family law is within provincial jurisdiction, the exception being the exclusive federal power in relation to "marriage and divorce."5 The power over divorce extends to matters of corollary relief flowing from a divorce, including support and custody/access. This federal power acknowledges "the desirability of nation-wide recognition of marriages and divorces".6 Provincial legislatures derive their jurisdiction from the power they have in relation to "property and civil rights in the province,"7 which includes property, civil and contract law. This authority extends to the areas of matrimonial property, adoption, support enforcement, the establishment of paternity, change of name, child protection and, in cases other than those where a divorce is sought, child and spousal support, as well as custody and access.

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1 Statistics Canada, Divorces 1995, Catalogue No. 84-213-XPB, Ottawa, p. 2.

2 Many other children, of course, will have experienced parental separation during the same period, in situations where their parents were unmarried or did not seek a divorce.

3 Statistics Canada, Divorces 1995, p. 20.

4 Statistics Canada, Daily, 2 June 1998, available on-line at http://www.statcan.ca/Daily/English/980602/d980602.htm.

5 Constitution Act, 1867, section 91(26), cited in Peter W. Hogg, Constitutional Law in Canada, 4th Edition (Scarborough: Carswell, 1997), p. 26-1.

6 Ibid., p. 26-2.

7 Constitution Act, 1867, section 92(13).