In December 2002, the federal Minister of Justice introduced Bill C-22. If enacted, the Bill will significantly change the child custody and access provisions of the Divorce Act. Women’s groups, including NAWL, have long called for changes to the Divorce Act to acknowledge the ways in which power imbalance, caregiving responsibility and woman abuse influence the dynamics of custody disputes. These calls have been answered to some extent in Bill C-22. However, some of the proposed changes are cause for concern and reflect the lobbying of fathers’ rights advocates over recent years. Although a presumption in favour of shared parenting or joint custody has not been introduced, certain aspects of the Bill may allow such a presumption to become entrenched in practice, threatening the well-being of some children and their mothers.
The proposed changes should be considered carefully and cautiously by those who are concerned with both the best interests of children and with women’s equality interests. Despite the government’s focus on a child-centred family justice strategy, evidence from other countries with similar legislation suggests that Bill C-22 may not result in less acrimonious disputes over children. Nor will it necessarily resolve many of the problems facing women and children in custody disputes, particularly those related to economic insecurity, power imbalance, and unequal responsibility for childcare. We need to consider whether the Bill offers tools with which to redress women’s inequality within family law or further “tilts” the family law system against women and children, as two Australian family law professors, John Dewar and Stephen Parker, have suggested. If family law does not contribute to women’s equality, it will not ensure the best interests of children.
Changing the Language to Parental Responsibilities
Bill C-22 introduces radical changes to the language and framework for determining disputes about children when parents divorce. Following the lead of England and Australia, Bill C-22 would eliminate the concepts of “custody” and “access” from the Divorce Act. Judges would no longer award custody or access to parents, but rather would make “Parenting Orders”. These orders would regulate the “exercise of parental responsibilities”. As in England and Australia, the aim of the change to the language of parental responsibilities is to create a new normative standard of co-operative parenting behaviour for separated couples with children. The idea is to focus parents’ attention on children’s needs and to reduce conflict.
No one could disagree with these goals, but the key question is whether the proposed changes will generate improved behaviour by those parents who seem unable to focus on children’s needs. Studies of the effects of similar legislative changes in England and Australia indicate that litigation has actually increased over the meaning of parental responsibility and the extent of parental rights. This has occurred largely because the new wording generated an expectation of equal parental rights, regardless of where actual responsibility for children rested (still typically with mothers). Ironically, the language of custody and access continues to be used in practice by many parents, lawyers and judges in Australia.
Similar uncertainty and increased litigation might arise in Canada, given that Bill C-22 contains no guidelines for how parenting orders should be made. Nor does it caution parents or judges or other decision-makers not to make particular orders in certain circumstances, for instance, where high conflict between parents or spousal abuse is at issue. Increased litigation will create considerable hardship for mothers, especially given the cuts to legal aid and women’s difficulty in accessing legal advice and the legal system. In contrast to England and Australia, Bill C-22 does not even direct judges to make orders for “residence”, “contact” and “specific issues”. Rather, it leaves the content of parenting orders vague and grants judges considerable discretion. “Parental responsibilities”, and therefore parenting orders, would include “parenting time, by way of a schedule unless a schedule is unnecessary in the circumstances” and decision-making responsibilities, including responsibility for making major decisions about health care, education, religious upbringing and responsibility for making decisions relating to a specific matter.
Bill C-22 does address two points that might cause confusion, given the new terminology. First, unless otherwise specified, any person with “parenting time” will be deemed to have rights of custody for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction. The Bill thus indicates that both parents will be presumed to have “joint custody”, making it potentially harder to limit international kidnappings by “access” parents, and easier for “access parents” to invoke the Convention against the parent with “custody”.
Second, Bill C-22 indicates that if no order states to the contrary, any person with parenting time will have exclusive responsibility for making day-to-day decisions affecting the child during that parenting time. This section is intended to address problems that have arisen from lack of clarity under the Australian legislation. However, advocates for abused women have suggested that abusive men may be empowered to make inappropriate decisions in relation to children during their parenting time. Clearly a mother can request an order modifying this rule, but the starting presumption will be for day-to-day decision-making power during parenting time.
In general, Bill C-22 leaves the allocation of parental responsibilities – such as parenting time and decision-making – up to parents and, where they cannot agree, to those who assist them in making decisions such as judges or mediators. This flexibility may be beneficial in circumstances where parents are able to relatively easily arrive at a constructive framework for post-divorce parenting. But, it may pose considerable challenges for those cases where agreement is difficult and where power imbalance exists. It may also raise difficulties in the application of the federal Child Support Guidelines, since they are structured around the concepts of custody and access.
Defining Factors to Guide Determination of “Best Interests”
Women’s groups have for years recommended that changes to the Divorce Act include cautionary provisions, for instance, that in cases of woman abuse, the access rights and decision-making rights of the abusive parent be limited. Bill C-22 addresses these concerns to some extent through its list of 12 “needs and circumstances of the child” that shall be considered by judges when determining what is in the best interests of the child (including a child’s cultural, linguistic, religious and spiritual upbringing and heritage).
One factor that must be considered is “any family violence”. Laudably, the Bill includes the impact of family violence on (i) the safety of the child and other family members, (ii) the child’s general well-being, (iii) the ability of the person who engaged in the family violence to care for and meet the needs of the child and (iv) the appropriateness of making an order that would require the spouses to cooperate on issues affecting the child. This provision demonstrates some appreciation of the dynamics of abuse, albeit in strictly gender neutral terms. Importantly, “acts of self-protection or protection of another person” are excluded from the definition of family violence, and family violence need only be established on the civil burden of proof. The Bill also eliminates the current ban on consideration of past conduct, which has been an impediment to considering the impact of spousal abuse on children.
Of concern, however, is the definition of “family violence”, which focuses on causing or attempting to cause physical harm. The definition does not specifically include psychological or economic abuse, although it does refer to causing a child or other family member to “reasonably fear for his or her safety or that of another person”, which might include some types of psychological abuse.
Under the Australian and English parental responsibility schemes, the ability of the legal system to take abusive conduct into account has been compromised. John Dewar has said that the new language of parental responsibility requires abuse victims to negotiate with their abusers every step of the way, because the starting point is that contact is the child’s right. Studies show that in both England and Australia, judges have in practice developed a presumption that contact or access is in the child’s best interests. As a result, other concerns about a child’s well-being have been rendered less significant and contact has taken on an increasingly rigid and dogmatic form. In Australia, for instance, there is now effectively a presumption operating in favour of contact when interim orders are made, even though the legislation does not mandate such an approach. Therefore, it has become more difficult to obtain interim orders suspending contact in the face of domestic violence of the parent who seeks contact.
On the good news side, unlike the Australian legislation, Bill C-22 does not explicitly make this principle of contact its starting point. The question is whether this principle will nevertheless be “read into” the statute, given the removal of the language of custody and access in favour of “parenting orders”, which effectively levels the field between custody and access parents. Many Canadian judges already take as their starting point that contact is in a child’s best interests, including sometimes where abusive behaviour is an issue.
Much has been made of the fact that Bill C-22 would remove the “maximum contact” section (sometimes referred to as the “friendly parent rule”) currently in the Divorce Act, something that women’s groups have recommended. However a version of a maximum contact principle reappears within Bill C-22, specifically as a factor that judges must consider in determining the best interests: “the benefit to the child of developing and maintaining meaningful relationships with both spouses, and each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse”. This emphasis on contact is not qualified by wording such as “except where this relationship is not in the best interests of the child”. When read with another factor under the best interests section – “the ability of each person … to communicate and cooperate on issues affecting the child” – it seems difficulties might arise for mothers who have struggled within a high conflict or abusive relationship and resist communication or cooperation over children for good reason. Mothers may not obtain the sort of order needed to protect themselves or the children from interference or exercise of power and control by the other parent. Together these provisions may suggest that contact is always beneficial for children, whereas studies indicate to the contrary.
Another recommendation that women’s groups have made is that women’s historic, disproportionate responsibility for child care be taken into account in custody legislation. Bill C-22 has done so to a limited extent in that it directs judges to consider “the history of care for the child” when determining what order will be in the best interests of the child. A child’s “need for stability” is also mentioned as a factor, in conjunction with a child’s physical, emotional and psychological needs. However, the Bill does not direct attention to the continuing gendered nature of care work.
It is certainly laudable that family violence and other factors, such as “the history of care for the child”, have been listed as key to determination of the best interests of a child. However, the Bill does not contain any direction to judges as to how to weigh the various factors. Nor does the Bill contain any additions to the Divorce Act, e.g. a preamble, that point out either the prevalence of violence against women and children or women’s ongoing, socially reinforced role as caregivers in families. This Bill continues the growing trend in the field of custody reform debates to render this area of law gender-blind.
In the weeks since Bill C-22 was introduced, several women have pointed out that saying a parent has “parental responsibilities” does not mean they will take responsibility for their children’s needs and well-being. Bill C-22 regards a parent as having “parenting responsibility” regardless of the amount of parenting time and, in some cases, even if they only have decision-making responsibility. Parents may well expect – and be awarded – considerable decision-making power, regardless of their actual parenting responsibility. How this type of legal regime will play out for mothers, who take primary responsibility for children’s well-being, often in difficult circumstances, is unclear. The default position is likely to be that joint parental responsibility is presumed, requiring mothers to argue against this starting point. This situation resembles joint legal custody, with the attendant problems identified over the years.
It will ultimately be up to judges and others who assist parents in resolving disputes to create frameworks that appropriately acknowledge factors such as the history of care for a child and any history of family violence. In the end, any system will only be as good as the people who work within it: greater attention to educating these people – lawyers, judges, mediators, counsellors – about the sexual division of labour and the dynamics of abuse is absolutely essential. A preamble in the Divorce Act that acknowledges these societal issues – as well as the overarching importance of ensuring the safety and well-being of children and their caregivers – would assist in prompting this education.
What can you do if you want to learn more about these issues?
* Bailey-Harris, R., Barron, J. and Pearce, J., “From utility to rights? The presumption of contact in practice”, (1999) 13 International Journal of Law, Policy and the Family 111-131.
* Dewar, John, “Family law and its discontents”, (2000) 14 International Journal of Law, Policy and the Family 59-85.
* Dewar, John and Parker, Stephen, “The Impact of the new Part VII Family Law Act 1975”, (1999) 13 Australian Journal of Family Law 96-116.
* Helen Rhoades, “The Rise and Rise of Shared Parenting Laws: A Critical Reflection” (2002) 19(1) Canadian Journal of Family Law 75-113.
* Check the website of the Ontario Women’s Network at http://www.owjn.org
* The Bill will be considered by a parliamentary committee in the near future. If you have concerns, contact the Minister of Justice and your Member of Parliament.
* Contact NAWL at email@example.com.
Susan B. Boyd is Professor of Law and Chair in Feminist Legal Studies at the University of British Columbia. Her book Child Custody, Law, and Women’s Work was published by Oxford University Press Canada in 2002.