NAWL Submission to the Standing Senate Committee on Legal and Constitutional Affairs

Public Hearing on Bill S-202

December 13, 2017, 5:15 pm.

SUBMISSION BY PAM CROSS ON BEHALF OF THE NATIONAL ASSOCIATION OF WOMEN AND THE LAW 

Good evening. Thank you for this opportunity to speak with you on the important matter of possible amendments to Section 16 of the Divorce Act.

The National Association of Women and the Law works for the equality rights of all women in Canada, working collaboratively with other women’s equality-seeking organizations. One important component of our work is law reform advocacy.

We oppose Bill S-202, as we have various other attempts to change the Divorce Act over the past two decades, because it does not reflect principles of women’s equality. In particular, these reforms would place women fleeing abusive relationships and their children at serious risk of ongoing abuse and violence by their former partners.

Family violence is a serious and entrenched social problem in Canada, as detailed in the Fall 2016 report of Canada’s Chief Public Officer of Health Dr. Gregory Taylor, who noted that the majority of victims of violence within the family are women. Just under 9 million, or about one in three Canadians, said they had experienced violence before reaching the age of 15.

The violence that thousands of women and children flee each year in this country does not end when the relationship ends. In fact, risk factors for abuse, including lethality for both women and children, escalate at the time of separation, just when many families are turning to family law to resolve their disputes. Legal bullying through the family court process is a common strategy used by abusers to try to maintain power and control over their former spouse at this time.

Those who seek to resolve custody and access issues as part of a divorce proceeding rely on the provisions in the Divorce Act, which require such decisions to be made using the best interests of the child test, as set out in section 16(8).

Bill S-202 would introduce what amounts to a presumption in favour of shared parenting. This is not appropriate, as the correct use of the best interests of the child test is significantly dependent on the unique circumstances of each child and their family. Case law has clearly established the inappropriateness of joint custody where parents cannot communicate effectively or where one parent is fearful of the other.

Creating a shared parenting presumption in the Divorce Act would create a different, and less safe, regime for women than is available under provincial legislation, most of which recognizes the unique realities of families where there has been a history of violence and abuse.

NAWL supports amendments to the Divorce Act that recognize and respond to the diversities and realities of families in this country, including the reality of violence against women and children in the family.

In particular, we support the following:

• The elimination of the maximum contact provision in section 16 (10) of the Act, as appropriate contact with each parent should be determined by application of the best interests of the child test
• The development of meaningful criteria for the best interests of the child test including mandatory consideration of:

• Any history of violence and abuse within the family
• The impact of violence against women on children
• The safety and well-being of the child and mother
• The past history of parenting
• Stability and continuity for the child

(We refer you to British Columbia’s Family Law Act, sections 37 and 38 for what we consider to be an appropriate approach to the factors to be considered in the best interests of the child test, including factors relating to family violence  and safety,)

While not directly related to  Bill S-202, NAWL also wishes to urge the federal government to increase its financial support for provincial legal aid family law programs to address the all-time high rate of family court litigants who are unrepresented.

At the present time, with no legal presumption in favour of shared parenting, close to half of all custody cases across the country end with either an agreement or an order for joint custody. Furthermore, parents who are able to co-parent after separation in a way that is positive for their children are not turning to the courts; they are establishing their own parenting regimes based on their mutual commitment to what is best for their children.

In other words, the amendments proposed in this Bill are, at best, unnecessary and, at worst, harmful to women and children.