Renaming conflict will not change the outcome. Only truly addressing it can.

Family law is in the news again. I am always glad when it is because we need to talk about family law to and with average Canadians, often and with passion.

The proposed changes to the wording of the Divorce Act, dealing specifically with children, have prompted numerous articles, as well as TV and radio shows, on the impact of the proposed changes and on occasion, to pat ourselves on the back for "modernizing" family law in Canada. Several of my colleagues have written very compelling and informative pieces on why the amendments to the Divorce Act and other family law legislation do not go far enough and how more could have been accomplished with virtually no added effort, so I will not spend time rehashing that territory.

I seize this opportunity, while family law is fresh on the minds of many average Canadians, to explore other ways the government might consider assisting separating parties to address more effectively issues arising out of the breakdown of their relationships and, most importantly, issues related to their children.

I am still asked fairly frequently what percentage of marriages in Canada end in divorce. From my perspective, the statistic is irrelevant. It also is not illustrative of the rate of success of Canadian relationships. Common-law unions now represent a significant percentage of unions resulting in the birth of children and let us not forget children born of situations in which the parents do not cohabit with one another. Irrespective of the statistics, the reality is that most Canadians have come in contact with separation and family law one way or another, either directly or by experiencing the separation of a family member, friend or neighbour. There is a concerning, but not surprising, volume of misinformation out there about the most basic law relating to children, including how a court determines who will make decisions about them in the short and long run, where they will reside, how often the non-primary residential parent will spend time with them and on a myriad of other issues.

Many couples resolve issues related to their children through direct discussion and on the basis that they themselves, as parents to these children, are in the best position to decide about their futures. That represents the “perfect world” and how, ideally, all children’s issues should be resolved – through consensus between their parents. Sadly, many, many parents become adversaries once a separation takes place. Family courts in Ontario are filled with cases of varying degree of conflict which involve parents who cannot see eye-to-eye on the most basic of concepts, like whether a child should have telephone contact with the other parent or whether both parents should be permitted to attend a school recital.

When parents are in conflict, their children are profoundly and very directly impacted by that conflict. There are no two ways about it. I have heard parents tell me that while they do fight with the other parent, these fights are "quiet" or “after the children go to sleep”. There is no such thing as a quiet disagreement and children, at every age, are very astute at picking up their parents' conflict. When parents fight, or when there is tension for example, at access pick-up and drop-off, children of all ages sense the tension and their reaction to that tension can manifest itself in a whole host of ways, not immediately identifiable as being rooted in the conflict. When preschoolers hear their parents argue or have one parent denigrate the other in front of them, they experience that negativity with acute precision. It creates a sense of imbalance and disruption, both of which are fundamentally harmful to young children. When grade school children are involved by their parents in issues which should be left to adults, loyalty struggles may follow and children often feel pressured to express their preference for one parent over the other. Some grade schoolers internalize the tension and become sullen and withdrawn. Other children “act out”. In many cases, school grades suffer and medical issues crop up. When teenagers experience their parents’ fights, are involved by either parent in financial issues with which they should not be burdened under any circumstances, they withdraw, act out, turn to substances to alleviate their stress or even leave home altogether.

In situations where parents separate, children must be shielded from their parents' conflict to the greatest extent possible. Children must never be used as pawns in the dispute between their parents. Children must never be used as messengers between their parents. Children must never be expected to take sides as between their parents or engaged as a team player in a campaign to subvert the other parent. Children are children. Their full-time job is being kids. They are innocent bystanders to their parents' separation and to disputes on any of the issues arising out of it. We have all heard these statements before and by now, they sound like clichés but it is truly astounding how many parents still either forget or do not appreciate the very important messages sent by these statements.

Toxic, prolonged conflict between separating parents has a very profound impact on children. This impact can be long standing and in many cases, it is irreversible. There is ample scientific research on the impact of high conflict separation on children and if the government is truly interested in modernizing Canadian family law and advancing the way average Canadians deal with separation, the government must devote more resources to educating separating parents on this issue.

Adult children of separated parents give us invaluable insight into their experiences as children and very practical feedback on the impact of these experiences on their adult lives. They sometimes speak of feeling as if they had an “out of body experience” and they resent being exposed to conflict and not being consulted around decisions relating to their futures. Children who experience high conflict separations sometimes have difficulty forming healthy adult relationships, trusting others and believing in positive outcomes.

Family law lawyers are often in a position to educate their clients as to the impact of conflict on their children but with the ever – increasing numbers of self-represented litigants before Ontario's family courts, some of that education is simply not available, unless specifically sought out.

The changes proposed by the federal government to the wording of the Divorce Act and other family law legislation are important but changing the word "custody" to "decision-making" does not address the initial reason the words have to be used in the context of a family law case, namely, the level of conflict between separated parents which calls for the involvement of the court.

Renaming conflict will not change the outcome. Only truly addressing it can. The federal government's plans are definitely a step in the right direction but it is one of many steps which must be taken.