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Lecture 5

POL 3126 Lecture Notes - Lecture 5: Child Custody, Child Support, Tender Years Doctrine

5 pages109 viewsWinter 2017

Political Science
Course Code
POL 3126
Miriam Levitt

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January 27th, 2017: The family, Law and Public Policy Chapter 8
Three policy areas
1. Divorce and support
- Divorce rates are half in Canada than in the US, and has declined since 1987
- If you lived in NL or QB you couldn’t get divorced under Provincial law, and had to
appeal to the federal senate to dissolve the married
o Only grounds were for adultery or matrimonial cruelty
2. Child Custody
3. Family Violence
1968: National Divorce act
- First divorce act was created
o Easier to obtain
o Many issues beyond adultery and matrimonial cruelty brought to court
- Federal government amended divorce act to a no fault system
o Allowed divorces to be claimed over the breakdown of relationships
o No need to prove spouse’s actions
Evolution in divorce policy in the 2000s
- Guidelines for courts and lawyers to refer during negotiations and rulings on spousal
support awards
- Guidelines based on incoming sharing and narrowing the disparities in income
- Calculation based on length of marriage and dependant children
Feminist perspective
- In 1967L the act was removed and replaced with the equality of Support rights and
o Court made it so spouse would not dependent for life, rather until there self
o Equal division of assets after marriage
- Feminist argues that women and men are treated differently and the division of
assets should not be based of equal division and rather take account of the differing
economic positions
- Traditional norms of the male breadwinner and the female being the second income
can leave the female in a disadvantage after the divorce
o This is a structural norm they face and has be influenced into the legal system
Judicial system: acknowledges that the barriers to equality that women face are structural and
come as a result of past adherence to traditional gender norms
Child support
- Court favours child support over spousal support
- 95% of court orders for child support were for the child in custody of the mother
- Parents who don’t pay child support are punished heavily
Support payments
- Government passed the Family responsibility and support arrears enforcement act of
o Suspends bank accoutns
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January 27th, 2017: The family, Law and Public Policy Chapter 8
o Inability to leave country
o Licence suspension
o Informing employers of such
o Incarceration
Child custody: Key terms
Custody: Rewarding decision making ability with major subjects affecting their child
(education, healthcare, religion)
Legal Custody: Both parents are given authority over major subjects pertaining to welfare
Physical Custody: Where child resides majority of the time
Joint Legal Custody: Both parents are given authority over major decisions affecting their child
Joint Physical Custody: The child lives part time with one parent on rotation
Custodial Parent: Parent who is given physical or legal custody of the child by court order
women are less financially stable based upon to pay gap, so therefore they might not have access
to all the resources that men do for custody
Child care timeline
1. 19th century: children were seen as fathers property therefore paternal custody was
granted- this was a norm
2. Mid 19th century: Britain: mothers were allowed the right to petition for custody of
young children provided that they had not committed adultery- however paternal
preference was still the norm
3. Beginning of the 20th century: norm shifted from paternal to maternal preference
4. 1970’s challenges arise: fathers rights advocacy groups- fathers were no longer seen as
providers and disciplinarians, but also participants of childbirth and in the nurturance and
the physical care of the children - therefore, they should be allowed to play a role in
parenting even if the marriage breaks down
- Father’s advocacy groups began the discussion of women having an unfair advantage
in custody determinations based upon gender roles and discrimination
5. 1986 Divorce Act- 16(8): The concept of “Best Interest” of the child was introduced,
however, the overall decision for custody remained to judicial discretion as to who can
provide the necessities of life
- best interests of the child, courts to determine each parent’s parenting skills and
compare the environments each parent can provide provincially based
Who can best provide the necessities of life determining best interests of the child: courts favour
a. preservation of the status quo if a child is already in a stable home environment
b. granting custody to the mother if she was the primary caregiver during the marriage
c. keeping siblings together
other factors: patterns of past care and responsibility- primary caregiving, the type of
relationship each parent has with a child, whether there have been patterns of domination,
climate of coercion and fear between the adults and children- whether the parents have
elected a shared arrangement- degree of geographical proximity between parental residences-
ability to communicate- confidence in other parent’s parenting competence and the impact of
proposed arrangements on a caregivers ability to be emotionally available and attentive to the
child's needs
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