Friday, May 7, 1999
Don't divorce the kids
Even a government committee on child custody says we need changeBy Sean B. Cummings --Special to The Daily News
In 1998, the special joint committee on child custody and access conducted cross-country hearings to find out what was wrong with Canada's divorce laws. Over 12 months, more than and from over 520 witnesses, the committee learned that the present system of dealing with divorce simply doesn't work - no argument here.
In December 1998, it released 48 recommendations that have the potential to change the way parents and children are treated by introducing a controversial concept that shouldn't really be controversial at all: shared parenting.
From the committee recommendations: the committee recognizes that parents' relationships with children do not end upon separation or divorce and therefore recommends that the Divorce Act be amended to add a preamble that divorced parents and their children are entitled to a close and continuous relationship with one another; and this committee recommends the terms "custody and access" no longer be used in the Divorce Act and instead, the meaning of both terms be incorporated and received in the new term "shared parenting"
Sound confusing? For many parents and community groups, the recommendations are very confusing. Since they were tabled last year, lawyers and women's groups complained there was no need for recommendations to change a system that already works well It has been widely reported and quoted by prominent lawyers such as Carole Curtis, that "fewer than 10 per cent" of parents go to court over custody and access. Patricia Doyle-Bedwell, head of the Nova Scotia Advisory Council on the Status of Women in her response to the committee recommendations said "less than five per cent of divorce cases result in drawn-out custody battles ... most divorcing parents already act in the children's best interests."
Few parents can afford lawyersDo fewer than 10 per cent of parents litigate custody? Who knows? Few parents can afford $200 an hour in legal fees and lawyers threaten parents with having to pay the other party's court costs should they lose their case. How is peaceful conduct rewarded when lawyers refuse any and all methods of alternative dispute resolution because their client has more time with the kids and increasing time with the other parent will negatively impact their client's position in litigation?
The recommendations are intended to change this, but how?
The committee did not recommend a presumption of shared parenting as a child's right and they did not come up with a definition of "the best interests of the children."
It emphasized parents creating parenting plans with the help of a mediator and it's nice to see the province has developed a template of a parenting plan that will be used by parents in the new unified family court.
The strength of the joint committee recommendations is that a parliamentary committee acknowledged serious problems with the divorce system. The weakness, however, is the ambiguity of many of the recommendations and the emphasis on continually using the court system to resolve disputes between parents.
Each year, more than 60,000 kids will see their parents' marriages end. The national divorce rate is nearing 50 per cent, which literally means nearly half of all marriages will end in divorce. Children of divorce continue to be exposed to the war between their parents.
In Nova Scotia's new unified family court, there are services such as conciliation and mediation. As well, parents are required to take a parent education course. We applaud these efforts, but there is a problem with this approach: one of the parents has to make an application to court in order to access these programs and services. If you make an application to court, the other parent is served with court documents - lawyers are consulted, threats are made and war is waged. Where is the benefit to children?
Community programs neededOur organization is helping parents find peaceful resolutions to divorce conflict. This spring, we will be offering a 15-week, skills-based divorce education program that will teach parents how to wage peace instead of war.
We are teaching parents how to avoid the divorce minefield by separating their dislike for each other from their children's right to co-parenting.
The joint committee on custody and access opened the door for change; it's now up to community-based programs and services that are going to keep parents out of a courtroom. We need to teach parents the skills they need to raise their children in a collaborative and child-centred manner.
Angry parents cannot teach children how to heal, forgive, compromise, or solve problems. If parents continue to rely on the court process to resolve their disputes, there can be no peace.
Sean B. Cummings is the director of the Nova Scotia Shared Parenting Association.
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