Where is the Government Going on Custody and Access?

16 October 2002
October 16, 2002

In the September 30th Throne Speech, the Chrétien government announced that the Divorce Act would be amended to better promote the best interest of the child, unified family courts would be expanded, and mediation and counselling would be encouraged in lieu of litigation. The commitment is very vague for a government that has been doing extensive research and consultation on the reform of the provisions on custody and access in the Divorce Act for the last five years.

In a speech given last August for his friends of the Canadian Bar Association (CBA), Minister of Justice Martin Cauchon was somewhat more loquacious: he announced that he may altogether abandon the language of custody and access. Some media reported that he would substitute it with the language of “parental responsibility”, proposed by the CBA in June 2001. This is a surprising shift coming from a minister who last spring announced that he was not sure that any reform of the Divorce Act was necessary. It is even more surprising, given that in the course of a “stakeholders” consultation last May, he promised not to endorse the presumption of shared parenting that is being urged by the “fathers’ rights” lobby. Does the Minister of Justice know where he is going in the reform of family law?

New Trends with a Bad Track Record

NAWL has urged the minister to proceed with utmost caution in this contentious area (see letter dated October 25, 2002 at nawl.ca). Indeed, this line of “new wave” reforms – to use Professor Susan Boyd’s expression – has been tried in the U.K., Australia and in many U.S. states, where it has been shown to be ineffective in bringing about real change in favour of collaborative parenting. Studies have shown that even though lawyers and other professionals tend to adopt a de facto presumption of joint custody or shared parenting; actual parenting patterns are barely affected by this type of legislative change. The net result is disadvantageous for many, if not most, women who usually do most of the work as primary caregivers, yet receive little or no child support. In Canada, “shared parenting” or joint custody is already used to justify drastic reductions in amounts awarded under the Federal Child Support Guidelines.

Studies have also shown that shared parenting can be the source of extensive litigation over the meaning of parental responsibility, its day-to-day exercise, and the specific parameters of the care and control that each parent is expected to exercise in regard to the child. In addition, abandoning the language of custody and access may create confusion around the interpretation of international treaties protecting children from abduction, such as the Hague Convention.

Similar reform in other jurisdictions has been shown to subject women to constant contact and negotiations with their ex-spouse, and to control and coercion by those men who wish to use the law and the legal system as a tool for woman abuse. In addition, presumptions in favour of maximum contact and ongoing parental responsibility often expose children to situations that are not in their best interest, and may actually be detrimental or even dangerous.

Does Minister Cauchon Care About Women’s Equality?

NAWL is alarmed that the Minister of Justice never makes public statements regarding the need to respect and promote the equality interests of women, despite the fact that many women’s organizations across Canada have been urging him to do so. The Supreme Court of Canada has repeatedly stated that governments are constitutionally required by section 15 of the Canadian Charter of Rights and Freedoms to specifically address the impact that a law may have on women’s equality rights. Madame Justice Claire L’Heureux-Dubé wrote in Willick v. Willick, ([1994] 3 S.C.R. 670 at 705) that the Divorce Act must be interpreted in a way that is “sensitive to equality of result as between the spouses” (emphasis added). She also stated in Young v. Young, ([1993] 4 S.C.R. 3 at 49) that we need to be “conscious of the gap between the ideals of shared parenting and the social reality of custody and childcare decisions” (emphasis added). Has the federal government been listening?

NAWL is concerned that the government is engaging in law reform without having considered the underlying gender dynamics, nor the impact the reform will have in further entrenching women’s inequality in the family; in short, this will not be in the best interest of children. We expressed these concerns in a brief developed in June 2001 in collaboration with the Ontario Women’s Network On Child Custody and Access (OWNCCA), and in the subsequent months we lobbied the Justice Minister on these issues. In June 2002, we met with the All-Party Women’s Caucus on Parliament Hill and spoke with MPs and senators from different parties, including the Honourable Jean Augustine, Minister Responsible for the Status of Women. A few days later, we met with Minister Cauchon, who was consulting with different groups on their recommendations for change to the Divorce Act. At the meeting, the minister expressed his desire to include references to equality in the Divorce Act, and to include specific criteria that should be used to interpret the “best interests of the child” test. Subsequent to the meeting, NAWL’s Working Group on Family Law explored these questions, and submitted an analysis and concrete recommendations to the Minister of Justice.

In our recommendations to the minister, the NAWL Working Group proposed that a preamble be added to the Divorce Act that would acknowledge the importance of ensuring that the Act does not entrench or exacerbate the existing disadvantage of women, that it respect and promote women’s equality rights and in particular, women’s rights to safety, autonomy and dignity. We recommended a series of principles by which the Act should be interpreted, as well as a detailed list of criteria that need to be taken into consideration when determining the best interest of children, including the safety and well-being of children and their caregiver, the importance of continuity of care, whether a parent has demonstrated responsible parenting in the past, the diverse realities and parenting practices in Canada, and the child’s cultural and racial heritage. The text of the recommendations can be found at nawl.ca.

A Call to Action!

NAWL expects that the federal government will table a bill amending the Divorce Act this fall. In the weeks and months to come, it will be important for feminists and equality-seekers to mobilize their energies to help disseminate information and provide a critical analysis of the proposals. It will be equally important for as many people as possible to lobby the federal and provincial Ministers of Justice, as well as the ministers responsible for the status of women, on this issue crucial to all women.

During the last few months, NAWL has been working with OWNCCA to develop a series of information sheets on the principal issues at stake for women: parenting after divorce, woman abuse, access to justice, the best interest of children and women’s equality rights. The documentation will soon be available on the Ontario Women’s Justice Network website (www.owjn.org). In addition, NAWL will post updated information about the lobby campaign at nawl.ca.

We urge all our readers to get involved in the lobby campaign to ensure that women’s substantive equality rights are effectively protected and promoted, and that children’s best interests – not father’s rights – are the primary criteria for determining parenting arrangements after divorce. For more information on how to get involved, please email Andrée at andree@nawl.ca.

Andrée Côté is NAWL’s director of legislation and law reform.

about NAWL
The National Association of Women and the Law is a not-for-profit feminist organization that promotes the equality rights of women through legal education, research and law reform advocacy.
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