Saturday, May 22, 1999
We need shared parenting right nowGuest Column by Brian St. Germaine
Justice Minister Anne McLellan intends to delay the implementation of amendments to the Divorce Act that would embrace the concept of shared parenting for the children of divorce and separation. McLellan wishes to "carry out research on custody and access issues and to develop reform proposals for public consultation," and has set the date for this comprehensive review to be reported to Parliament by May 1, 2002.
The report of the Special Joint Senate-House of Commons Committee on child custody and access, titled For the Sake of the Children, contains 48 recommendations for effective legislation that would create better results for these children. This Committee has reviewed the current research, heard individual and stakeholder organization witnesses, held committee hearings across Canada and produced the framework for the much needed legislation.
The minister's review of the For the Sake of the Children recommendations will be conducted by the Federal/Provincial/Territorial Family Law Committee, a group comprised mainly of bureaucrats.
It is unacceptable to send this issue back to the family law committee. This committee produced a report on child support in May 1992 that was the basis for the current child support guidelines, which are severely flawed and are now being reviewed by the Senate social afairs committee.
The committee also produced a public discussion paper on custody and access in March of 1993, but failed to fulfil its mandate to complete a final report.
McLellan's plan to create research as part of her new Divorce Act review fails to acknowledge the witnesses at the joint committee hearings who included experts from the legal, mental health, child development, child protection and academic fields. The experts gave their input to the joint committee and the recommendations reflect this information.
The use of selective research by the Justice Department has been a real concern for years. The Statistics Canada's Violence Against Women Study has been discredited for lack of any kind of research protocols.
Those opposing shared parenting mostly focused their energies on "male violence" in an attempt to discredit men as a group. This approach demonstrated the strong element of gender bias present in addressing the issues of child custody and access. The joint committee rejected that position and recognized that children need both parents and the vast majority of males are not violent.
DIRTY LITTLE SECRET
The principle of shared parenting and the use of parenting plans to shape parenting orders by the courts has been lobbied for over a number of years.
The dirty little secret that the law community — including Justice Canada, the judiciary and lawyers — shares with divorcing parents is that spousal support is hidden in the child support award and the children pay the price by having their family's physical and emotional support removed.
There is a need to amend the Divorce Act because of the refusal of the law community to ensure that the children’s best interests include remaining connected to both parents and their extended families. In order to justify its high child-support awards and its refusal to provide for the care of the children in both homes, the family law community chooses to restrict the access of children to their support-paying parent.
Shared parenting is easily achievable under the current Divorce Act and there is nothing to prevent a judge from making an order that would provide shared parenting to the children. However, changes to the Divorce Act are needed to ensure that the judiciary puts the best interests of the children first.
The children who are currently affected and would be affected over the next three years by the Divorce Act should not have to wait to have their best interests served. The dismal performance of the family law community cannot be allowed to continue.
PROTECT THE CHILDREN
Timely, effective legislation must be brought forward without delay. Canadians have sufficiently made the case for immediate action. The special joint committee has made the proper recommendations. The judiciary has the ability to protect the children now and should begin to do so.
Anne McLellan is a professor of law, a lawyer, the minister of justice and a prominent member of the law community. She should immediately prepare legislation based on the special joint committee recommendations or Prime Minister Chretien should accept her resignation.
Brian St. Germaine is chairperson of the child custody, child access and access enforcement committee of the Edmonton branch of The Equitable Child Maintenance and Access Society