Globe and Mail

Margaret Wente wonders if changes to the Divorce Act will help

Tuesday, May 18, 1999
The Globe and Mail

Did you hear the one about the deadbeat dad who fought for 11 years over the family assets? His legal bill was $600,000, and by the time the case was resolved his kids had grown up.

No? Then maybe you heard the one about the mom who wouldn't let her husband see the kids for four years and finally accused him of being a pervert so the judge would deny access for good.

People in family law have a thousand stories about vengeful parents. For every wronged mother, they can raise you two wronged fathers, and vice versa.

For most of the 1990s the wronged mothers claimed superior victim status. They lobbied governments and picketed the homes of negligent fathers who wouldn't cough up child support, and eventually won their case by getting the law changed so that the level of their support payments is guaranteed.

Now it's the wronged fathers' turn to claim the moral high ground. Their wrenching personal stories of loss persuaded the federal government to consider making the idea of shared parenting a central piece of the Divorce Act. But the fathers'-rights groups are not declaring victory. Instead, they want the head of Justice Minister Anne McLellan for stalling. "It's judicial kidnapping what's going on in this country," declaimed one men's-rights lawyer.

Is it? Out in the real world, family lawyers of all stripes agree that the wording of the Divorce Act is, in the end, not very important. What's important are social attitudes and human nature.

On social attitudes, they report good news. "I see men who are more interested in joint custody than they were in the past, and women more willing to give it," says Karen Selick, a family lawyer in Ontario who is an unabashed social conservative. She favours a change in the Divorce Act, but says changed thinking is what really counts. "Women are starting to see that it's not so great to be a single parent 24 hours a day, seven days a week." Meantime, the culture has changed so much that just about everyone expects men, whether married or divorced, to take more responsibility for the kids. That attitude influences judges, too, and the generation of judges who once automatically awarded custody of children to their mothers is rapidly retiring.

As for human nature, the news is less good. Family lawyers say that putting the words "shared parenting" into the act won't resolve a thing for people who are determined to fight each other for control. Does shared parenting mean 50 per cent of the time at Mom's and 50 per cent at Dad's, or something different? As one parent told me, "Maybe you can agree on stuff like religious upbringing and education. But then you get to the really tough issues. How much Nintendo are you going to let your kid play?" Parents who can't figure that one out don't have a hope of making a success of shared parenting.

For the conflict-oriented, shared parenting also reopens the issue of support payments. If Dad (let's say he's the higher earner) has the kids half the time, does he still have to write cheques to Mom? How big? Fathers' groups may deny it, but some men want shared parenting partly because they hope they can reduce their support payments to little or nothing.

However and whenever the Divorce Act changes, family lawyers wonder if it will stem the tide of litigation that is swamping family courts. Several family lawyers told me they hate litigation, even though that's what they do for a living. Their clients are wounded, emotional and unrealistic. The court system is a drain on their already shaky finances. Too many divorcing parents, mothers and fathers alike, rely on the courts to solve problems they can't solve themselves, and in the end the courts often fail them.

Will a tweak to the Divorce Act change all that? The battle-scarred veterans on the front lines think not.


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