Globe and Mail

Ottawa to focus on children in overhaul of divorce law

Friday, May 7, 1999
ANNE McILROY Parliamentary Bureau, Ottawa
The Globe and Mail

Justice Minister Anne McLellan has agreed to rewrite the Divorce Act, but is planning to take three years to consult the provinces and Canadians about changes intended to help children maintain meaningful relationships with both parents after a breakup.

Government sources say that on Monday, Ms. McLellan will agree with a recommendation that concepts such as custody and access should be replaced by new ideas that focus on maintaining good relationships between children and both their parents -- and other family members -- after a divorce.

The recommendation was one of 48 made by a controversial joint Commons-Senate committee in a report called "For the Sake of the Children." Not all the recommendations will be directly addressed in the government's response.

Ms. McLellan will neither endorse nor reject the committee's recommendation that the term "shared parenting" be used in the Divorce Act. Instead, she will pledge to talk to provincial and territorial governments to develop a proposal for legislative reform.

Family law is an area of shared jurisdiction. The federal government has already agreed to review its child-support guidelines by 2002, and will use the same timeline for changes to the Divorce Act. Public consultations on the proposed changes will begin in 2001.

Ms. McLellan will also work on a response to parents who do not respect court orders on access. Her response to the committee report won cabinet approval this week.

The committee recommended in December that Ms. McLellan replace the terms "custody" and "access" 'which are now used in the Divorce Act to define where the children will live and when the other parent will get to see them with the term "shared parenting." Ms. McLellan is expected to argue that the issue is complex, and that more research is required to make sure that terms like shared parenting can be carefully defined.

Committee members maintained that shared parenting is not the same as mandatory joint custody, although some womens' groups argued it is. They have lobbied forcefully against the change, saying that forcing women to continue contact with abusive partners would put their lives in danger.

Groups representing divorced fathers, on the other hand, were pushing for more dramatic reforms that they argued are necessary to make the legal system fairer to them and their children. The committee heard from many fathers scarred by protracted legal battles to see their children. Members said changing the Act's language would reduce conflict by giving non-custodial parents, who are mostly fathers, the ability to continue to take part in decisions about their children's lives.

Ms. McLellan is trying to chart a course between the two sides, although neither is likely to be pleased by her approach.

The idea of shared parenting was central to the committee's report. Some members said replacing custody and access with the term shared parenting would be a profound shift that would give both parents equal footing under the law regardless of who is primarily responsible for the day-to-day needs of the children. Others said it wouldn't change much.

Only 10 to 20 per cent of divorcing parents go to court to fight over their children and it is estimated that 47,000 children a year are the subject of custody orders under the Divorce Act.

In general, the report called for a more child-centred approach to custody and access, an approach Ms. McLellan favours, especially since the debate up until now has focused more on the rights of divorced parents.

But her response will not ignore some of the major concerns of fathers who said the legal system discriminates against them.


The joint Commons-Senate committee on child-custody issues:

  • The committee was part of the Liberal government's compromise to get new guidelines for child support payments through the Senate.
  • Its mandate was to examine and analyze issues relating to custody and access arrangements after separation and divorce.
  • It first met in December, 1997. Some of the early public hearings were poisoned by gender politics. At one meeting, some members of the men's groups in the audience sneered when the women talked about spousal homicide and heckled them at other times during their testimony.
  • One senator, Progressive Conservative Erminie Cohen, was so upset over how the women were treated that she started to cry and denounced the emotional "war zone" the committee had created.
  • Its report was released in December.

Access to their children was an important issue to groups representing divorced fathers who testified. The committee heard from fathers who hadn't seen their children in years -- despite making regular support payments -- and heard testimony about how difficult it is to enforce court orders on access.

As the committee recommended, Ms. McLellan has agreed to work toward a national, coordinated response to parents who do not respect court orders on access. It would include early intervention, education and mediation for parents and a policy that would allow non-custodial parents to make up visits they were denied.

It is estimated that 47,000 children a year are the subject of custody orders.

Another key issue addressed in the report was false testimony about child abuse in disputes over custody, where one parent is trying to keep the children away from the other parent.

Ms. McLellan will agree with the committee's recommendation that she work with the provinces to assess the adequacy of the Criminal Code in dealing with false statements in family law matters, and promote action on clear cases of mischief, obstruction of justice or perjury.

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