Letter to Irwin Cotler, Minister of Justice, on Custody and Access and the Reform of the Divorce Act

Minister of Justice Irwin Cotler has recognized on more than one occasion that “women’s rights are human rights”. Yet he was ready to consider re-introducing Bill C-22 to amend the Divorce Act without any analysis whatsoever of the impact of proposed changes on women’s equality, security and other human rights. NAWL let him know why some aspects of Bill C-22 are problematic for women and children.

Honorable Irwin Cotler
Minister of Justice
Government of Canada
House of Commons

October 14, 2004

Re: Custody and Access and the Reform of the Divorce Act

Minister Cotler,

We are writing with respect to your recent announcement concerning reforms to the Divorce Act. We are alarmed that you are considering re-introducing Bill C-22, and in particular the changes in terminology that would replace custody and access by the very vague notion of “parental responsibility”.

As you may know, the National Association of Women and the Law (NAWL) has been actively involved in the process to improve the Divorce Act for many years. We urge you to promote reforms that will ensure both respect for the best interests of the child and women’s equality.

The Divorce Act has been the subject of considerable and intense scrutiny by the federal government, the Federal/Provincial/Territorial Family Law Committee, women’s equality-seeking groups and many other Canadians. There have been years of hearings, consultations, research and reports on the reform of the Divorce Act. Your Department has been very active in commissioning original research and analysis. However, to date we have not seen one single report analyzing the impact of proposed changes on women’s equality, security and other human rights. This is astounding, given the Justice Department’s commitment to gender based analysis, and your many statements recognizing that “women’s rights are human rights”.

Reform is urgently needed in this area. Indeed, the application of the current “maximum contact” principle and the de facto joint custody presumption that is being adopted by many judges across Canada and in Quebec do not benefit many children. In some cases, they jeopardize the children’s well being by forcing them to be in contact with abusive fathers. They also place abused women in a very vulnerable position, since they must maintain ongoing, frequent and extensive collaboration and coordination with their abuser, the children’s father. This often results in abusive men using the law and the courts to further harass and oppress their wives. This is certainly not a government practice that promotes women’s human rights!

NAWL has also consulted extensively with women across the country on this issue. A strong common theme emerged: women want a Divorce Act that promotes the best interests of children, that supports the equality rights of women, that acknowledges the realities of parenting responsibilities in Canadian families and that protects women and children from violence and abuse. Simply changing the terminology to replace custody and access with “parental responsibility” would not bring about substantive change in parenting practice, and would create a lot of uncertainty and confusion in the law. We fear that it will fuel more – not less- litigation.

Women have also made it clear that law reform will be futile if legal aid and advocacy services are not adequate, as is the case in many regions at the moment. To this end, we urge you to increase federal funding for civil legal aid.

You have a proven commitment to an egalitarian, democratic society that respects and upholds the human rights of women and men of all communities and social conditions, as enshrined in the Canadian Charter of Rights and Freedoms. Much work has been done, both within government and in society at large, to advance women’s human rights in all spheres. It is imperative that we keep moving forward and not slip back into the “traditional” patriarchal values espoused by some members of your caucus.

We would be delighted to meet with you as soon as possible to discuss these important concerns.

Yours very truly,

Andrée Côté
Director of Legislation and Law Reform

Cc Honorable Liza Frulla