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When Bill C-22, An Act to Amend the Divorce Act, died in November 2003, a long chapter in NAWL’s work on reforms to custody and access legislation came to a close. We now find ourselves in a position to consider the broader question of women’s equality within family law generally. This issue of Jurisfemme, largely focused on the topic of family law, is the start of that work. This first article provides a brief update on Bill C-22.
Bill C-22 was many years in the making. The federal government began its most recent examination of custody and access law in 1997 with the establishment of the Special Joint Committee on Child Custody and Access, which released its report “For the Sake of the Children” in December 1998. (For more background information on this report and the history of activities undertaken by women’s rights organizations, visit the NAWL website at nawl.ca or the Ontario Women’s Justice Network website at www.owjn.org.)
Since the release of the 1998 Report, the Federal, Provincial, Territorial Committee on Family Law, various Ministers of Justice, women’s equality-seeking and anti-violence organizations and other Canadians, including “fathers’ rights” groups, have all been actively involved in the legislative reform process.
Both before and after the introduction of Bill C-22 in December 2002, the following issues have been of particular concern to organizations working for women’s equality:
* The language to be used to describe custody and access arrangements between parents
* The best interests of the child test
* Women’s access to justice
NAWL’s strong position with respect to each of the issues can be summarized as follows:
* While there are difficulties with the existing language of custody and access, the proposed language of parenting orders, parental responsibility, parenting time and shared decision making will prove even more difficult. It will endanger women and children leaving abusive relationships, expose children in some situations to international kidnapping, confuse the existing child support guidelines and greatly increase litigation.
* There needs to be a best interests of the child test with specific criteria, including past caregiving history, the presence of violence, the ongoing safety of the children and their primary caregiver, violence risk factors, race and ethnic origin and Aboriginal heritage.
* Women must be assured access to justice through properly funded legal aid, independent, community-based services and mandatory training on violence against women and children for lawyers, judges and all family court personnel. Mediation must never be mandatory.
It is important that we continue to advance these positions with the new federal government and the new Minister of Justice. “Fathers’ rights” organizations have been a powerful lobby force, with friends both inside the Liberal caucus and within other parties. We must assume the organizations will continue their campaign for a presumption in favour of shared parenting and reduced child support responsibilities for non-custodial parents.
The present Divorce Act desperately needs amendment. The “friendly parent” rule and its lack of criteria for the use of the best interests of the child test leaves women and children without adequate protection. Legislative reform alone will do little to improve either women’s equality or the best interests of children, so it must be coupled with increased services, including those outlined above.
It is anticipated that this government will call a federal election before reconsidering amendments to the Divorce Act. This would provide NAWL and other women’s rights organizations with time to develop a long-term lobby strategy that can be used both during and after an election campaign. To this end, NAWL is bringing together custody and access activists from across the country to a meeting in Ottawa in late March, at which we will discuss custody and access and a variety of other family law issues. It is intended that this meeting will produce the beginnings of a national strategy that can then be further discussed and developed in communities across the country.
To be kept informed about the development of NAWL’s family law strategy through our listserv, please contact Pamela Cross, Family Law Reform Coordinator at firstname.lastname@example.org.
Pamela Cross is NAWL’s Family Law Reform Coordinator and the Legal Director of the Ontario Women’s Justice Network and Metropolitan Action Committee on Violence Against Women and Children.