Why Family Courts Should Consider Children's Special Needs
In May, 2018, the Federal Government tabled Bill C-78 which will amend the Divorce Act. One of the key amendments creates an expanded list of factors that courts will be required to consider before making parenting orders. (See the proposed amendments to subsections 16 (2) and (3) of the Divorce Act, below.)
The current legislation requires that Judges consider "only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child". The broad language of section 16 does not provide Judges with much direction, although the case law which has evolved over the past several decades has interpreted it in a fairly consistent way.
The proposed amendment, which is most welcome and represents a giant leap forward, will change the vocabulary that we use to describe parenting arrangements. The terms "custody" and "access" are replaced with "decision-making responsibility" and "contact orders". The amendments will also require Judges to consider a long list of very specific factors before making temporary or final parenting orders.
In my view, what still needs to be added to the list of factors that Family Court Judges are required to consider before making parenting orders are children's special needs. I believe that special needs should be added as a separate consideration because special needs are not inherently absorbed into any of the other factors reflected in the proposed amendments.
There are a significant number of children in separated families who have a broad range of special needs, including Autismn spectrum disorder, Down Syndrome, Cerebral Palsy, ADHD, learning disabilities, chronic developmental disorders, profound cognitive impairment, sensory impairment, serious medical conditions with many complicated symptoms, mobility issues, complex behavioural issues, anxiety, depression and a variety of other mental health issues, to name only a few. Some children with special needs are only able to reside with their families at home or independently with exceptional supports in place, including personal support workers, caregivers, respite workers and a variety of therapists attending at their homes daily. Parents of children with special needs often spend a massive amount of time liaising with medical specialists, mental health professionals and educators. Families are often emotionally, physically and financially taxed. Separation and divorce often add a variety of complications, particularly when the physical separation has occurred and children are being cared for by only one adult at a time.
Before making decisions about the allocation of parenting decision-making responsibility and parenting time, courts should receive evidence from parents and experts about those issues which are relevant to every child with special needs. These children may face very unique challenges moving back and forth between two homes and may be more vulnerable to conflict between their parents if there are disputes about diagnosis, treatment, supervision or care.
The addition of "a child's special needs" as a separate factor to be considered in the determination of parenting arrangements will require Judges to receive and consider evidence about all aspects of the child's assessment, diagnosis, treatment and care, including :
- whether there is a clear and current diagnosis for the child;
- whether there is a clear prognosis for the child;
- whether the parents agree about the diagnosis and / or its impact on the child;
- if there is no clear diagnosis, whether the parents agree about whether and how the child should be assessed, including the discipline and identity of the assessor and when the child should be assessed or re-assessed;
- whether the parents agree about medication, diet, dietary supplements or therapeutic services;
- whether the parents agree about the level of supervision a child may require and / or the child's capacity for independence;
- whether the parents agree about how to manage the child's safety;
- whether the parents are similar in their approach to managing the child's behaviour;
- whether the parents agree about who may care for the child in the absence of one or both parents;
- whether the parents communicate well and are able to share important and necessary information to avoid putting the child at risk or facing unnecessary challenges;
- whether the child is able to express views, preferences or opinions about living arrangements, treatment or care;
- the child's ability to adapt to change;
- whether it benefits the particular child for both parents to be involved in decision-making about specific aspects of assessment and care or whether the complexity of the child's needs makes it safer, more predictable and less of a challenge for the child to have only one parent manage specific aspects of assessment, interface with all of the child's healthcare professionals and make decisions about medication, supervision and care and / or the provision of specific services;
- whether continuity of care is preferable, important or crucial for the child; and
- any other factor which may have a bearing on a child's stability, health, comfort, vulnerability, ability to succeed or general well-being.
Decisions about parenting arrangements have a huge and long-term impact on children. It is important that Judges have available to them all of the information they require to be able to appreciate each child's unique circumstances and make the best possible decisions for their benefit.
** The proposed amendment to section 16 of the Divorce Act (which does not refer to "a child's special needs") is:
16 (2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.
16 (3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child's needs, given the child's age and stage of development, such as a child's need for stability;
(b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;
(c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;
(d) the history of care of the child;
(e) the child's views and preferences, by giving due weight to the child's age and maturity, unless they cannot be ascertained;
(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child's care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person engaged in the family violence to care for and meet the needs of the child;
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.