Bill C-22, An Act to Amend the Divorce Act

Bill C-22 proposed amendments to the Divorce Act that could have a huge impact on women’s lives as well as on those of their families. NAWL wrote to Minister of Justice in French and to the Standing Committee on Justice and Human Rights in English to share our thoughts on Bill C-22.

Letter to Minister of Justice in French available as a PDF.
Letter to the Standing Committee on Justice and Human Rights available below:

Mr. Irwin Cotler, MP
Member of the Standing Committee on Justice and Human Rights
House of Commons
Parliamentary Buildings
Ottawa (On) K1A 0A6

July 16, 2003

Dear Mr Cotler

I am writing in the name of the National Association of Women and the Law with respect to Bill C-22, An Act to Amend the Divorce Act.

This Bill has the potential to have a significant impact on families across Canada for many years to come. We agree that changes are needed. The present Divorce Act does not reflect the experiences, needs and concerns of all family members equally. In particular, it does not acknowledge the reality that, in most families, mothers are the primary caregivers both before and after separation and that violence against women is the experience of women in many families. The “maximum contact” principle contained in the present legislation underlines how little the Act understands these realities.

Bill C-22 takes some important steps in the right direction of ensuring that the interests of all members of the family are protected upon marriage breakdown. We are happy to see:

  • the elimination of the maximum contact principle
  • the introduction of criteria to be used in applying the best interests of the child test: in particular, past caregiving history, violence within the family and cultural consideration
  • the absence of a shared parenting provision

We encourage you to support these provisions contained in Bill C-22, as they enhance the rights of all family members and do not take away the rights of any.

However, Bill C-22 falls short in some areas. We have grave concerns about:

  • the elimination of the terms custody and access. Changing this familiar language will create confusion in our courts and increase litigation as courts (and families) struggle to understand what is meant by the undefined concept of “parental responsibility,” which is the new term introduced in Bill C-22. The current terms of custody and access should be maintained. If that is not possible, then the new legislation must:
    • clearly tie together the responsibilities of caregiving and decision making
    • provide clear guidance as to where a child will actually reside
    • identify how “supervised parenting” will work
    • address the gap that will arise between the new terms and the child support guidelines
    • make appropriate provisions to protect children from international kidnappings;
  • the narrow definition of “family violence” contained in the best interests of the child test. Presently, Bill C-22 identifies only physical violence. Both sexual and psychological abuse should also be included. Violence risk factors need to be identified. Supervised access/visits should be provided for in cases of family violence;
  • the possibility of shared parenting becoming a de facto reality. The circumstances in which shared parenting and/or decision-making are inappropriate must be spelled out and a presumption against shared parenting in cases of family violence must be added;
  • the absence of any reference to race and ethnic origin in the best interests test. These should be added to the list that now exists. Further, reference to Aboriginal heritage should appear in its own paragraph in order to specifically address the balance that must be achieved to effectively respect and promote the collective rights of Aboriginal peoples and the equality rights of Aboriginal women, as well as the best interests of each specific child;
  • the lack of provisions to ensure women’s access to justice. Mediation must never be mandatory. Legal aid services must be viewed as a right and funded accordingly. All family court personnel, including judges and lawyers, must receive mandatory training in family law, violence against women and the impact of that violence on children.

Finally, to ensure that the new Divorce Act is interpreted and applied appropriately, it should begin with a Preamble that recognizes the historic and ongoing inequality of women and the disproportionate responsibilities for childcare assumed by women in many families. It must also acknowledge the ongoing experiences of racism and its negative impact on racialized communities and Aboriginal peoples, as well as the pervasiveness of discrimination based on sexual orientation, disability and class. It must promote the human rights of all Canadians as protected by sections 7, 15 and 28 of the Canadian Charter of Rights and Freedoms, as well as by international agreements such as the Declaration on the Elimination of Violence Against Women, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Elimination of Racial Discrimination and the Beijing Platform for Action.

The Preamble should also contain a provision mandating an annual report to Parliament of the application of the Divorce Act, including a gender-based analysis of the impact of the Act on women and children.

Bill C-22, once passed, will have a profound impact on divorcing families for many years to come. Now is the time to ensure that it is written in such a way as to protect the interests of the most vulnerable – most often, women and children. We strongly urge you to support those sections of the Bill that move positively in this direction and call for changes to those that do not.

In short, we recommend that you support legislation that keeps the current notions of custody and access, that improves the definition of the best interests of the child test to better protect children and their caregivers, that adds a Preamble that provides an equality rights framework and that ensures women and children have access to justice.

Finally, Mr Cotler, we are hoping that you will help ensure that as many women and equality-seeking groups are invited to present their submission to the Standing Committee as possible. It is very important that this Committee not be overwhelmed by fathers rights advocates, as has happened in other hearings, in the past.

I am enclosing a copy of the Brief (in English and in French) that we have prepared on Bill C-22 which provides greater elaboration on all of the above points. I thank you for your interest in this issue, and I hope that NAWL can count on your support.

Yours very truly,

Andrée Côté
Director of Legislation and Law Reform