Shared Parenting and Mediation: Lawyers and Judges Support Reforms

There is considerable concern in Canada about how to reduce the adversarial nature of family law proceedings and promote better relationships between separating parents. We report here on a recent survey of Canadian legal professionals that reflects support for mediation and certain amendments to the parenting provisions of the Divorce Act.

Context

Mediation is playing an increasingly significant role in the resolution of disputes between separating parents. A number of Canadian jurisdictions, such as Alberta, British Columbia, and Ontario have increased government support to mediation, especially for lower income groups, and established parenting education programs to encourage use of mediation. There are, however, concerns about whether victims of family violence are being appropriately screened before being sent to mediation. There are also questions about whether legally trained professionals, as key “gate-keepers of dispute resolution” are supportive of mediation.

There is also a growing interest in various forms of shared parenting. British Columbia’s new Family Law Act, which came into force in 2013, establishes a presumption of mutual parental guardianship, before and after separation. Like Alberta’s Family Law Act, which came into force in 2005, the B.C. law uses the concepts of “parenting time” and “parental responsibilities” as the basis for post-separation parenting arrangements. However, the parenting provisions of the federal Divorce Act are almost three decades old and continue to use the concepts of “custody” and “access,” language that does not reflect present values and practices on post-separation parenting. In the spring of 2014, a Private Member’s Bill (C-560) that would have created a presumption of “equal parenting time” was defeated in Parliament, with professional groups, like the Canadian Bar Association opposed to its enactment. There are questions about whether legal professionals support reform, or prefer to continue to use the language of “custody” and “access.”

CRILF Survey Participants: Views and Practices

With the support of the CRILF (Canadian Research Institute for Law and the Family), we surveyed family law lawyers and judges who attended the National Family Law Program in Whistler, BC, in July 2014, to learn about their views and experiences with shared parenting, mediation and self-representation in family courts in Canada. In this article, we present a summary of the results of the survey regarding shared parenting and mediation data.

One hundred seventy four of the attendees, about a third of program registrants, responded to the survey: 83% were lawyers, 13% were judges and 4% were from other professions. The relatively high response rate from a busy group of professionals suggests a strong interest in sharing their views about these important topics.

The respondents consisted of 72% females and 28% males, with an average of 18 years of experience in their current practice, and 82% of their case load involved family law matters—a significant group of very experienced family law lawyers and judges. There was somewhat more representation from the West (55% were from BC or Alberta).

Mediation

Respondents reported that, in 38% of their family law cases, mediation is attempted for some or all of the issues. Of those cases referred to mediation, 49% resulted in a complete resolution of all issues, and 17% resulted in the resolution of no issues. The balance of cases resulted in settlement of some issues.

In addition, respondents reported that, in only 6% of their mediated cases does the mediator meet with the child, and that in another 17% of their cases the mediator makes other arrangements for ensuring that parents have independent information about the children’s wishes and views. It is clear that in large majority of cases mediators assist parents in making parenting plans without ensuring that children’s views of the arrangements are considered.

The majority of participants reported that government supported or subsidized mediation is available where they practice, with a relatively small minority indicating that only private mediators are available in their jurisdiction. Participants’ comments were generally very supportive of mediation, though they reflected an awareness of its limitations, including these:

• “Judges and courts need to put their money where the government’s mouth is — Kick out of the courts parties who ought to be in mediation and ADR…”
• “The mediation offered by court is fairly popular, and is a new program…”
• “I recommend mediation to my clients 100% as an alternative to court…”
• “It [mediation] does not work for all situations.”

When asked if they screen for domestic violence before referring a case to mediation, the majority of participants reported that they always screen (77%), though most of those who screen (64%) said that they do not ask standardized questions or use a standardized form.

Shared Parenting

 

There is only limited and incomplete Canadian data available on the incidence of various types of parenting arrangements. Swiss & Le Bourdais (2009) reported between a 9-15% prevalence rate of equal parenting time.

In our survey, the respondents reported that an average of 46% of their cases involve some form of equal parenting time (“joint physical custody,” “shared custody,” or “shared residence,” in which the children spend at least 40% of their time with each parent). They also reported that an average of 68% of their cases involve some form of shared parenting (“joint legal custody” or “joint guardianship,” in which both parents play a role in decision-making).

The lawyers and judges surveyed also reported a substantial increase in the use of equal parenting time over the past five years: 31% of participants reported a substantial increase in such arrangements; 53% reported somewhat of an increase; 16% reported no change; and less than 1% reported a decrease in such arrangements.

An overwhelming 78% of the participants said that they support the amendment of the Divorce Act to use language other than “custody” and “access,” suggesting instead terms like “parental responsibility” or “parenting time.” However, the vast majority of participants (77%) did not support the enactment of legislation like Bill C-560 that would amend the Divorce Act to create a presumption of equal parenting time.

Comments on the need to change the language used to describe post-separation parenting arrangements included the following:

• “Custody and access make me think of prison. Using parenting language is a frequent reminder for some people of what their role really is;”
• “Parties find that custody/access language is loaded with negative implications, including winner/loser.”

Other comments expressed concern that legislation imposing a presumption of equal parenting time would cause harm to children:

• “An equal presumption could be dangerous in certain circumstances. I believe it is more prudent to protect children who may be in a dangerous situation from the outset;”
• “Should be no presumptions;”
• “Some children do not function well in this type of schedule, and it would lead to substantially more litigation, in my opinion, if we had to start with that presumption.”

Many of the comments expressed a concern that whatever concepts are used should be consistent between the Divorce Act and the different provincial family law statutes; coordination between the federal and provincial governments should reduce the confusion resulting from different concepts and principles. Many comments also support changing the legislation to address the present “winner takes all” mentality.

Policy Implications: Support for Mediation and Divorce Act Reform

While this survey only provides a limited picture of the attitudes and experiences of family law lawyers and judges, it potentially has significant policy implications. The survey reveals broad support among these legal professionals for the utilization of mediation. This would suggest that there is support for discussions about changes in court rules and in the professional culture to encourage more use of mediation. Other issues that need to be addressed include how to involve children in mediation, and how to ensure that there is adequate screening for cases of domestic violence. And, there is strong support for reform of the parenting provisions of the Divorce Act to promote some form of shared parenting, but not establish a presumption of equal parenting time.

————————

*This is a revised version of an article published in Family Mediation Canada, Nov. 2014.

**The authors wish to acknowledge funding support from the Social Sciences and Research Humanities Council.

This article was originally published in the Fall 2014 issue of The Professional Family Mediator.

 

About the Authors

 

Rachel Birnbaum is Associate Professor, Cross appointed in Childhood & Interdisciplinary Studies and Social Work, King’s University College, Western Ontario, London, Ontario, Canada.

Nicholas Bala is Professor of Law, Queen’s University, Kingston, Ontario, Canada.

John-Paul Boyd is Executive Director, Canadian Research Institute for Law and the Family.

Lorne Bertand is Senior Research Associate, Canadian Research Institute for Law and the Family.