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NAWL’s ongoing work in the area of custody and access has been focused on Bill C-22, An Act to Amend the Divorce Act, since Justice Minister Martin Cauchon introduced it into the House of Commons in December 2002. We have prepared a brief responding to the legislation, which has been submitted to the Standing Committee on Justice and Human Rights for consideration. We have prepared and distributed a comprehensive education and lobby kit to women’s organizations across the country (You can read and download this material on NAWL’s Web site at nawl.ca).
We have also met with women’s equality-rights and anti-violence organizations across the country from British Columbia to Newfoundland and Labrador. These meetings, which have been well attended and vibrant, have provided women with an opportunity to receive updates about Bill C-22, discuss local concerns about custody and access and develop organizing strategies. NAWL has come away from these meetings with a very clear understanding of the key issues facing women who must deal with the family court system in this country.
First and foremost, we are hearing from women that the present Divorce Act does not reflect the needs of women and children who are leaving abusive husbands/fathers. The “friendly parent rule” coupled with the absence of any reference anywhere in the Act to family violence makes the realities of these women and children invisible, and leads to expectations that women will engage in shared parenting with men who have been and often continue to be abusive to them and/or their children.
Overwhelmingly, we have heard that access to legal representation is a huge problem for women. In almost every part of the country, legal aid for family law matters is either extremely limited or virtually non-existent. Lawyers are generally very uninformed about the issue of violence against women and children. Court processes and officials often discourage women from bringing up violence in their custody applications.
Women across the country are struggling with a family court system that acts as though joint custody/shared parenting is a legal presumption (which it is not). Joint custody orders have become the norm, with sole custody or limited access a hard-to-achieve exception.
Mobility is a challenge for women everywhere, but especially in remote parts of the country, where women often need to relocate considerable distances to keep safe from their abuser or to find employment or training/education opportunities.
In every meeting, women talked about the importance of amending the Divorce Act to reflect the needs and rights of women and children.
Opinions varied as to whether or not Bill C-22 addresses all of the concerns with the present Divorce Act. Generally, women expressed concern about the elimination of the terms custody and access, about the narrow definition of family violence to include physical violence only, about the ongoing emphasis on alternative dispute resolution and about the lack of commitment to money to support legal aid and other court supports for women and children. On the other hand, women were very happy to see that the bill does not introduce a legal presumption in favour of shared parenting and that it does provide criteria for the application of the best interests of the child test.
Bill C-22 had passed Second Reading and had been sent to the Standing Committee on Justice and Human Rights for hearings, before returning to the House of Commons for Third (and final) Reading.
However, the House of Commons had prorogued, thereby ending this session of Parliament. As a result, all Bills on the Order Paper (including BillC-22) have died.
When the House reconvenes, it will do so with a new Leader of the Liberal Party. The Cabinet is likely to undergo considerable change; and the Liberals will be focused on the next election.
The Divorce Act needs amendment, and with the death of C-22, the government will need to move at some point to create new legislation to speak to this. However, it is difficult to predict what priority a Paul Martin government will give to this issue. It is also difficult to predict what approach it would take to such reforms.
Women across Canada are clearly very concerned about the way in which custody and access are dealt with in the courts. Even in this time of uncertainty about the future of the Bill, we need to continue to speak to politicians, the media and the public about the necessity of reforming the Divorce Act to ensure it reflects the interests and rights of women and children.
Please keep in touch with NAWL via our Web site for ongoing updates on Bill C-22 and by email to firstname.lastname@example.org to let us know what is happening in your community.
Pamela Cross is a feminist lawyer working as the Legal Director of the Metropolitan Action Committee on Violence Against Women and Children and the Ontario Women’s Justice Network. She is presently serving as NAWL’s Family Law Reform Coordinator, and has been actively involved with custody and access law reform for many years.