Problem:MarriageThemes of Work and Discussions:DivorceDefinition: The Civil Marriage Act of Canada defines marriage as a lawful, consensual union of two people “to the exclusion of all others” (Civil Marriage Act, 2005, p. 3). It is limited by a minimum age of consent and the requirement that all previous marriage contracts have been dissolved by the death of a spouse or annulled by a court order (Civil Marriage Act, 2005).The second Divorce Act of Canada declared that a marriage can be annulled when one or both spouses apply for a divorce based on the breakdown of their marriage (Divorce Act, 1986). A breakdown of marriage requires that the partners have lived “separate and apart” for at least one year preceding the application to divorce. Also, this includes when one or both spouses have committed adultery or treated the other with intolerable “physical or mental cruelty” over the course of their marriage (Divorce Act, 1986, p. 7). Issues:Custody and AccessChild SupportSpousal Support Division of PropertyHistorical and Social Foundations: Marriage has been an important institution in Canada since confederation; there have also been many changes made in regard to marriage.
Since the end of World War II, the customs, regulations and societal expectations surrounding marriage and divorce have changed (Ward, 2006). In the beginning of the country’s history, Canada followed traditional Christian concepts of marriage. It has since become more secular and inclusive (Ward, 2006). There are also certain conditions to getting married in Ontario. Religious ceremonies in Ontario must be performed by recognized religious bodies, whereas civil ceremonies can be performed by a judge, justice of the peace, or municipal clerk (Government of Ontario, 2016). Furthermore, another important change took place when the Civil Marriage Act of Canada redefined marriage to include the union of same-sex couples and uphold values of respect, tolerance, and equality in the Canadian Charter of Rights and Freedoms (Civil Marriage Act, 2005). This is important as it provided equal rights to the Canadian population, regardless of sexual orientation. In addition, before World War II, Canada had one of the lowest divorce rates amongst western societies; however, the Divorce Act of 1968 opened up access to more comprehensive judicial divorce (Ward, 2006).
In recent decades, common law partnerships have become more popular. Partners who live together for over a year receive the same legal rights and obligations as married couples (Ward, 2006). This way, partners no longer have to get married in order to gain certain rights. The social impact of divorce is easily observable as it is more common in today’s society. One of the most noticeable effects is the divide that happens within social circles during and following a divorce.
For the sake of loyalty, friends may feel like they have to take the side of one spouse and lose the friendship of the other. Children of divorce are also likely to face social hardships as they interact with the world. Due to the psychological impacts of divorce, the children often face difficulties adapting to new social situations or dynamics.
Their social skills may not be as polished as children with happily married parents (Amato, 2000). Psychological Foundations: The psychological effect of divorce is not limited to childhood, seeing as the impact extends into adulthood for those who experienced it as children. Children who have experienced divorce in their lives generally have a harder time achieving the same sense of wellbeing and success than children who have not (Amato & Keith, 1991). They become prone to depression, anxiety, and other mental illnesses (Wauterickx, Gouwy, & Bracke, 2006).
When discussing the school environment, which can be a difficult setting for some youth, children of divorce may face bullying because their parents are no longer together. In addition, they may have an internal dialogue telling them they are the cause of the divorce. As these children grow older, they have a difficult time finding positive role models in their lives, and often make impulsive decisions in romantic or sexual situations (Wauterickx, Gouwy, & Bracke, 2006). They may even mimic the dynamic of their parents’ relationship. In some divorces, parents may be cordial and pleasant with each other because they prioritize their children’s feelings. However, there are other instances where it can be especially bitter and the children can be used as a means of getting back at the other spouse.
Moreover, the act of breaking off a serious relationship can reflect poorly on a child’s understanding of love and commitment (Lengua, Wolchik, Sandler, & West, 2000). As a result, they either adapt their behaviour to cope with the trauma or because they did not have a positive role model to learn from (Amato & Keith, 1991). Young adults who experienced divorce as children may find themselves with a fear of commitment and serious relationships (Amato & Keith, 1991). For this reason, they may have a difficult time remaining monogamous, and decide to seek multiple sexual partners to reflect the relationship their parents had (Belsky, Steinberg, & Draper, 1991). This illustrates how impactful certain experiences can be on a child as they grow up and learn from their environment. Religious Foundations: Religion has a strong influence on the outlook of marriage and divorce.
As previously defined, marriage is a lawful, consensual union of two people (Civil Marriage Act, 2005). Said differently, it is viewed as a commitment between two partners. For this reason, when a divorce takes place between a Christian couple, it is not viewed positively. This is due to the traditional outlook on divorce. As stated in the Bible, “But I tell you that anyone who divorces his wife, except for sexual immorality, makes her the victim of adultery, and anyone who marries a divorced woman commits adultery” (Matthew 5: 31-32, The New International Version).
This quote discusses the one situation that divorce is acceptable in Christianity, which is when sexual immorality has taken place. Also, the citation mentions the lasting effect divorce would have on a woman. Since the divorce reflects poorly on her, the next man to marry her would be viewed as an adulterer. When discussing the Islamic faith, as prescribed in the Quran, marriage is the lawful union of a man and a woman based on mutual consent.
In Islam, the purpose of marriage is to foster a state of tranquillity, love and compassion. Islam discourages divorce, however, unlike certain religions, it makes divorce provisions for either party (IslamWeb, 2016). Islam encourages the husband and wife to appoint arbitrators in order to reconcile before considering divorce proceedings. As established in the Quran, both the husband and wife are guaranteed the right to divorce if reconciliation fails; each party has to go through different procedures during a divorce. When a divorce is initiated by the man, it is known as Talaaq (IslamWeb, 2016).
Conversely, divorce initiated by a woman is called Khul’ (IslamWeb, 2016).Statistics:There is a population of 14,242,188 married people in Canada (Statistics Canada, 2017).There is a population of 1,924,838 divorcees in Canada (Statistics Canada, 2017). Research by Ambert discovered that over 20% of all divorces in Canada are a repeat divorce for at least one of the spouses (2009, p. 9). Ambert found that the average age of divorce in 2005 was 44 years for men and 41.4 for women (2009, p. 9).
Clarifications:Custody and Access: Custody is the right to “make important decisions about how to care for and raise a child” including education, healthcare, and living arrangements; the different types include joint or sole custody (Community Legal Education Ontario, 2016, “Custody”). Access is the right to spend time with a child, even if the child lives with the other parent. This includes reasonable, fixed, supervised, or no access (Community Legal Education Ontario, 2016). Additionally, a parenting plan is an agreement outlining arrangements concerning the child; upon separation, this agreement is signed by both parents and a witness (Community Legal Education Ontario, 2016). Child Support:Child support is the amount of money a parent pays to financially support their child after a separation or divorce (Government of Canada, 2017). If parents cannot agree on an amount, the Canadian court system uses federal and provincial, or territorial guidelines, to determine the child support payments (Government of Canada, 2017).
Spousal Support: Upon divorce, spousal support is the amount of money paid by the partner with more income, or assets, to the less fortunate party (Ministry of the Attorney General of Ontario, 2016). A number of factors influence the amount of money and time to expect in a spousal support agreement (Ministry of the Attorney General of Ontario, 2016). The Divorce Act of Canada states that child support must be considered before spousal support (Divorce Act, 1986). This illustrates that children are prioritized during a divorce. Division of Property: Upon divorce, the contribution of both spouses is considered and the value of property acquired during the marriage is split between them (Ministry of the Attorney General of Ontario, 2016). This includes assets, pensions, and the matrimonial home (Ministry of the Attorney General of Ontario, 2016).
This demonstrates how both partners are treated equally during this stage of a divorce.Arguments:Custody and Access: Child custody is an important part of a divorce. According to the updated Children’s Law Reform Act, “A child’s parents are equally entitled to custody of the child” (2016, p. 20).
This quote explains that parents have equal rights to custody and access regarding their child. This is fair for both the child and the parents, as it keeps both parents in the child’s life. Conversely, since the child’s wellbeing is high on the list of priorities during a divorce, child custody should not be given to a parent who is unable to provide care or a healthy living environment. Child Support: In the case where the non-custodial parent is paying child support, it allows the child to keep the same quality of life with each parent despite income discrepancies.
Contrarily, if the non-custodial parent has a much lower income, they should not be required to pay child support as it may put them in a difficult financial situation.Spousal Support:In some cases, the spouse who initiates the divorce may not be in a good financial position. This can make it difficult for them to find a place to live and pay their expenses. When the partnership ends, the party in a better financial situation should pay spousal support to the other partner; this would help make the transition easier (Government of Canada, 2017). Conversely, adults are expected to be self-sufficient.
If both partners are in good financial situations, pursuing spousal support may not be necessary, particularly if there is no legal requirement to pay it. If either spouse is paying child support, it could be viewed as sufficient.Division of Property:In a divorce, the division of property protects the economic interests of both parties (Divorce Canada, 2017). By writing a contract ahead of time, spouses can divide property to best suit their own needs. Conversely, dividing family property during a divorce can be quite difficult, especially if significant assets are threatened. Economic abuse is when one spouse tries to control the other by preventing their access to shared assets or running up large debts in joint accounts (Divorce Canada, 2017).Proposed Model of Resolution:NegotiationPreparation: Sam and Nina live in the province of Ontario and have decided to divorce.
As negotiators, we have spent time gathering information about their situation, exploring potential issues, and rehearsing strategies (Chicanot & Sloan, 2009). Sam works the night shift at his own cleaning company, and has an annual income of $100,000, whereas Nina works from home as a daycare provider with an annual income of $40,000. They share a marital home worth $300,000 in suburban Ottawa.
We have also discovered that they have an eleven-year-old daughter, Anna, and a set of six-year-old twins, Jacob and Lydia, who will be affected by the divorce. The parents have decided to negotiate outside of the court system to lessen the stress on the children. As we prepared for the negotiation, we reviewed the Divorce Act of Canada and considered the legal and logistical requirements of a divorce in Ontario. We had individual meetings with Sam, and then Nina, to discuss their best and worst alternatives to a negotiated agreement (their BATNA and WATNA, respectively) (Chicanot & Sloan, 2009). We determined that Sam and Nina would both like joint custody through these meetings.
Also, Sam would like access to the children on the weekends because he works the night shift during the week. Nina would like to receive child support and live in the marital home with all three children.We have chosen an integrative approach (Chicanot & Sloan, 2009), and strategies from the left side of the Negotiation Clock Face (Gates, 2016) because, despite the divorce, Sam and Nina have both expressed the importance of maintaining a positive relationship. Their cordial relationship will help them focus on the best interests of the children and encourage open communication throughout the negotiation. Introduction: Since Sam and Nina are looking to keep a cordial relationship for the sake of their children, we set the tone for a collaborative negotiation. Expressing these expectations ensures that both parties remain on the same page because their shared interests include the wellbeing of their children.
We reminded them that the ideal result would be a mutually beneficial agreement. By mutualizing and building on the common ground, we have eliminated competition between the parents (Chicanot & Sloan, 2009).Sam and Nina have requested that the children are included in the negotiation process.Issues: Due to the amount of time spent on preparation, Sam and Nina began discussing custody, child support, spousal support, and the division of property during the first meeting. They were given a chance to voice their thoughts and concerns regarding the negotiation. The children were encouraged to ask questions and speak their minds because these are important decisions that directly concern them.
Sam and Nina want the children to be happy; for this reason, they asked clarifying questions to ensure that everyone felt heard and valued. As we facilitated the meeting, we encouraged them to regularly seek affirmation amongst their family so that each new decision or point of interest was dissected and discussed (Chicanot & Sloan, 2009). Interests: By listening to each other and reframing the divorce, the parents agreed that the wellbeing of their children is their biggest concern. During this stage, we encouraged Sam and Nina to remain flexible in their interactions and reveal their interests and respective BATNAs (Chicanot & Sloan, 2009). Through probing and clarifying questions, we helped them discern which aspects are more flexible and which are hard limitations. Based on the information we gathered from these questions, Sam and Nina were able to discuss which interests complement each other and which are conflicting.
Sam is willing to move out of the marital home to ensure that the children are not uprooted. However, he would prefer that the children spend the weekends with him whereas Nina would also like to spend some weekends with the children. Sam is flexible and willing to negotiate on the number of weekends per month. Nina is willing to waive spousal support if Sam pays full child support according to the provincial guidelines, as well as sixty percent of extracurricular expenses for the children.
Sam and Nina are both unwilling to negotiate on joint custody. Solutions:After discussing interests and possible issues, we began exploring creative solutions with the parents. Neither of them is willing to negotiate on custody, therefore we needed to think outside of the box and pursue other options to satisfy their conditions while considering the children’s best interests. Through creative brainstorming, Sam and Nina were able to establish a parenting plan which gave them what they wanted and ensured that the children have enough time with each parent. The parenting plan outlines where the children will live, how much time the children will spend with each parent, and each parents’ role in providing for the children (Community Legal Education Ontario, 2016). The parents decide on joint custody and reasonable access, which is open and flexible without a detailed schedule to preserve their congenial relationship; also, we encouraged them to discuss the holidays that are important to their family (Community Legal Education Ontario, 2016). Sam and Nina agree to alternate holidays every other year.
Implementation: Implementing the agreement is the final step in the negotiation process, during which Sam and Nina actualize the decisions they have made together with our help. Sam and Nina will need to wait a year to formally divorce but have agreed to sign documentation concerning custody and child support in the meantime. Sam and Nina sign a parenting plan outlining custody and access after the meeting. The children will live with Nina in the marital home and visit Sam on the weekends. Nina will have the children on the last weekend of every month.
Sam will pay $1,920 per month in child support based on the guidelines set in place by the Ontario government (Government of Canada, 2017). He will also contribute sixty percent of the costs of extracurricular activities due to his higher income, whereas Nina will contribute forty percent. One year of extracurricular activities for all three children costs approximately $14,000; this amounts to $8,400 for Sam and $5,600 for Nina. In conclusion, Nina waives her right to spousal support and they agree to equally split any remaining assets. Sam and Nina inform their family, friends, and the children’s teachers of their separation and new living arrangement.