Y R- A R_co B co W LI- cLoO A-CO L N ——= o^ KI S LA--CO A R O co B CHILDREN IN FAMILY LAW COURSE MATERIALS Volume I Philip Epstein and Carol Rogerson Faculty of Law University of Toronto 1999-2000 Prepared with the assistance of Brendan Van Niejenhuis These materials are distributed solely for classroom use by students in the Faculty of Law, University of Toronto Digitized by the Internet Archive in 2018 with funding from University of Toronto org/details/childreninfamily01epst_0 Children in Family Law VOL. I 1999—2000 TABLE OF CONTENTS 1. CUSTODY LAW: HISTORICAL OVERVIEW AND CURRENT TENSIONS Jay Folberg, “Custody Overview”. ] Nicholas Bala, “A Report From Canada’s ‘Gender War Zone”: Reforming the Child- Related Provisions of the Divorce Act.5 Susan Boyd, “Women, Men and Relationships with Children Is Equality Possible9”...33 “For the Sake of the Children Report of the Special Joint Committee on Child Custody and Access”, Dec 1998, Summary of Recommendations.37 Government of Canada’s Response to the Report of the Special Joint Committee on Child Custody and Access”, May 1999.45 H. CHILDREN AND DIVORCE A. SOME BACKGROUND READINGS ON CHILDREN’S RIGHTS Michael Wald, “Children's Rights A Framework for Analysis.51 Martha Minnow, “Rights for the Next Generation A Feminist Approach to Children’s Rights”.63 Jeremy Roche, “Children and Divorce A Pnvate Affair?”.69 U N Convention on the Rights of the Child.78 B. WHAT THE SOCIAL SCIENCES TELL US ABOUT CHILDREN AND DIVORCE Goldstein, Freud and Solnit, Beyond the Best Interests of the Child.79 Wallerstein and Kelly, Sun’iving the Breakup: How Parents and Kids Cope with Divorce.83 Wallerstein and Tanke, “To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce”.86 Joan Kelly, “Current Research on Children’s Postdivorce Adjustment”.91 C. MAKING THE SYSTEM WORK BETTER FOR CHILDREN: ISSUES ON THE TABLE-CONTACT, CONFLICT AND IMAGES OF POST-DIVORCE PARENTING Rhonda Freeman, “Parenting after Divorce: Using Research to Inform Decision-Making about Children”.102 “For the Sake of the Children Report of the Special Joint Committee on Child Custody and Access”, Dec 1998, Introduction, Chapter 1 (“The Divorcing Family”) and Chapter 2 (“Improving Outcomes for Children’).114 i Government of Canada’s Response to the Report of the Special Joint Committee on Child Custody and Access”, May 1999, “Element 3: Managing Conflict .143 Bran Neale and Carol Smart, “In Whose Best Interests'? Theorizing Family Life Following Parental Separation or Divorce”.148 III. CUSTODY AND ACCESS DECISIONS WITHIN THE CURRENT LEGAL FRAMEWORK: THE “BEST INTERESTS” TEST AND SOLE CUSTODY DETERMINATIONS A. INTRODUCTION: DEFINITIONS AND FACTORS RELEVANT TO CUSTODY DETERMINATIONS P Epstein, “Custody and Acess”.156 Department of Justice, Custody; and Access: Public Discussion Paper.164 Robert H. Mnookin, “Child Custody Adjudication Judicial Functions in the Face of Indeterminacy”.168 Susan B Boyd, “Women, Men and Relationships with Chldren Is Equality Possible? .169 B. JUDICIAL APPLICATIONS OF THE BEST INTERESTS TEST Sherrettv. Sherrett,.171 Talskyv. Talsky.172 Klachefsyv. Brown.177 R. v. R. ..182 Fishback v. Fishback.191 Doe v. Doe (Dist. Ct.).196 Doe v. Doe (Ont C A.).197 C. PRIMARY CAREGIVER PRESUMPTION Department of Justice, Custody> and Access: Public Discussion Paper..202 S. B. Boyd, “Potentialities and Penis of the Pnmary Caregiver Presumption”.203 Harden v. Harden.209 K. v. K.. 212 D. THE ROLE OF THE LAWYER IN PARENTING DISPUTES Doug Moe “Minimizing Conflict in Parenting Disputes”.215 IV. JOINT CUSTODY M. Roman and W Haddad, The Disposable Parent: The Case for Joint Custody’.253 Jay Folberg, “Joint Custody”.261 Judy Ryan, “Joint Custody in Canada: Time for a Second Look”.267 Baker v. Baker.270 ii Kruger v. Kruger and Bonn.277 Mol v. Mol. 293 J Wilson and A Seaton, “Parallel Day Parenting Agreements Negotiating Custody and Access Without Using the Legal Terms.303 Department of Justice, Custody’ and Access: Public Discussion Paper, “Joint Custody”.310 Catherine R Albiston, Eleanor E. Maccoby and Robert R Mnookm, “Does Joint Legal Custody Matter?.3 j 2 Arthur Leonoff, “Joint Custody and Beyond”.318 J Johnston, “Children's Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision-Making”.324 Final Draft of the “Black” Parenting Plan 330 For the Sake of the Children: Report of the Special Joint Committee on Custody> and Access, 1998, “Shared Parenting and Parenting Plans”.185 iii