Focus: Movement away from word 'custody' gathers steam

The word custody may not be an expletive, but there’s a growing movement to bleep it out in family law disputes.

In a culture given to competition, winning and losing are loaded terms, especially when access to children is the perceived prize.

In family law, experts say the sting of losing custody harms children caught between sparring parents, according to a recent Court of Appeal decision that may affect the language of decision-making with respect to the children after separation or divorce. “For over 20 years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of ‘custody’ and ‘access.’ These words denote that there are winners and losers when it comes to children,” wrote Court of Appeal Justice Mary Lou Benotto in M. v. F.

“They promote an adversarial approach to parenting and do little to benefit the child. The danger of this ‘winner/loser syndrome’ in child custody battles has long been recognized.”

In that decision, Benotto found a trial judge had made no errors in not awarding custody to either parent. She said it was “open to the trial judge to adopt the ‘parenting plan’ proposed by the assessor without awarding ‘custody.’ It was also in keeping with the well-recognized view that the word ‘custody’ denotes ‘winner’ so consequently the other parent is the ‘loser’ and this syndrome is not in the best interests of the child.”

The court’s words are music to the ears of anyone working in this area of law, says Toronto family lawyer Julie Stanchieri.

“It’s something that we’ve been talking about for many years and it’s just nice that the Court of Appeal has endorsed it because that now allows us to go back to our clients and say, ‘Don’t put so much of an emphasis on the word custody,” says Stanchieri.

“Many battles have been fought over that word and probably needlessly so.”

Family lawyer Bill Rogers has a similar view. “If you award sole custody to one parent, the other parent is a loser. That’s what the court said: You have a winner and a loser.
And that’s not good for the kids. It promotes an adversarial relationship between the parents. If one of them has custody, then they’re calling all the shots and the other one is a second-class parent or what the court calls a loser.”

When clients first come into her office, Stanchieri says the first thing they often say is they’d like custody of their children. Few of them, however, actually know what the word means.

“What they really mean by that and what they think it means is that they want to play a meaningful role in their children’s lives and they want to see their children as much as possible,” she says.

“There are ways to address those things without using the word custody,” Stanchieri adds.

Family therapist Stella Kavoukian has also seen the eroding effect of the term. The word  custody can be “potentially be triggering for parents,” she says.

The ideal scenario arises when parents can sit down with a third party, such as a mediator, and “discuss what they feel would be in the best interests of their child taking, for example, the child’s developmental stage, personality, and parental and situational factors into account,” adds Kavoukian.

Kavoukian, who works with families to draft parenting plans, says parents often express relief when she tells them they don’t have to use the word custody to map out a plan for how they’ll take care of their children. She says the court is right to push for discussions that don’t involve the term.

“What it does do is it probably reduces the level of anxiety,” says Kavoukian.

It also “sets a better platform for the parents to work in good faith,” she adds. “It creates the opportunity for more goodwill between the parents and the hope that the parents will have a better co-parenting relationship in the long term.”

Once the parties agree on a parenting plan, Kavoukian sends it to their respective lawyers who will be witnesses when the parents sign the agreement.

Stanchieri says that in addition to being an emotionally charged term, the trouble with the word custody is also that it’s out of date.

“It treats children like property,” she says. “And that’s really not helpful to anyone anymore.”

Although the Court of Appeal highlighted a linguistic preference, it also pointed that the letter of the law doesn’t require judges to make custody orders. “The Ontario legislation does not require the trial judge to make an order for custody. Section 28(1) (a) of the [Children’s Law Reform Act] is permissive, not mandatory: The court . . . by order may grant the custody of or access to the child to one or more persons,” wrote Benotto.

So in a practical sense, how is approving a parenting plan different from awarding custody?

“The law defines custody as decision-making power for the child for three main things: education, health care, and religion,” says Rogers.

“Parenting plan is all those three things plus everything else: more day-to-day stuff [such as] what are we going to do on the birthday? That’s not really a legal custody question but it’s a big problem for a lot of people.”

A parenting plan, then, offers more details, he notes. “So a parenting plan is a detailed recipe book for making decisions. If you can co-operate enough to do that, you can avoid using the word custody. It’s a word that creates a lot of problems because it really does create a winner or loser mentality.”

In situations where parents are “fighting so bad and one of the parents is a real jerk, a drunken, violent jerk,” awarding custody to one parent maybe necessary, according to Rogers.

But those are a minority of cases, he adds, noting many people could resolve disputes with parenting plans.

Generally, the more acrimonious the relationship between the parents, the more detailed the parenting plan has to be, says Stanchieri.

“Now that the Court of Appeal has said you don’t need the word custody, that gives us all the freedom to not be a slave to the term. So if you have two people who are both so sure that in some ways they need to seek custody in an order, you can say to them, ‘Well, we actually don’t need custody in an order,’” she says.

But in its recent decision, the Court of Appeal wasn’t doing away with directions to parents, Stanchieri notes.

“We’d still need a decision about how decisions are to be made,” she says. The judge might then say the parties will make decisions together after consulting with one another, she notes.

In some cases, it may be difficult for lawyers to convince their clients that the word custody isn’t necessary.

But Stanchieri believes they can overcome that issue. “I’ll keep telling people what I always tell them, which is don’t get too held up on the word custody,” she says.

“Then the next step is [asking them] what is it that you really want and how do we achieve that? If it is that you want to be consulted before major decisions are made, then that is something we should aim for to make sure that it is included in a final order.”

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