February 5, 1999CUSTODY AND ACCESS REPORT DRAWS MIXED REACTION
By Cristin Schmitz
The federal government should not rush to reform Canada's custody and access laws, family law practitioners say.
"I would want to see a very studied response," Victoria's Eugene Raponi said in the wake of the recent report of the Senate/House of Commons Committee on Custody and Access.
"They need empirical evidence before they implement some of what I would call 'radical/innovative' recommendations," continued Raponi, the vice-chair of the National Family Law Section of the Canadian Bar Association (CBA).
"I don't think that we want them to jump into action in implementing this report through changes in legislation," agreed Toronto's Judith Huddart, chair of the family law section of the Canadian Bar Association- Ontario (CBAO).
Huddart urged Justice Minister Anne McLellan to "take a very cautious approach" to some of the more contentious reforms proposed by the committee.
McLellan must respond to the report of the custody and access committee by May 10, 1999.
Raponi said the CBA will likely present its preliminary comments on the report to McLellan later this month.
Meanwhile For the Sake of the Children--and its 49 recommendations--is garnering mixed reviews.
"Fairly balanced" with "a lot of good ideas," commented Queen's University law professor Nicholas Bala, a specialist in family and children's law.
"It so misunderstands what's going on in family law that it's almost laughable," said Carole Curtis, an Ontario law society bencher who has practised family law in Toronto for 20 years.
"In terms of their recommendations to commit more resources to the [custody and access] area through education, through supervised access, and through child advocacy, those kinds of things, I thought those were terrific," remarked Raponi, who added he was expressing his personal views.
In fact, quite a few of the Parliamentary committee's recommendations reflect, in whole or in part, submissions made by the Canadian Bar Association in May 1998:
- more resources for unified family courts, mediation, supervised access, and civil legal aid;
- mandatory parental education in contested custody/access cases;
- no primary caregiver or joint custody presumptions or automatic standing for grandparents seeking custody/access in divorce cases;
- amending the Divorce Act to include specific criteria to help ascertain the child's "best interests"; and
- amending the Divorce Act to require custodial parents to give at least 90 days' notice--and to seek court permission--before relocating (The CBA did not put the onus on custodial parents to request prior court permission, and it wanted both parents to give notice of a move since parental contact is the child's right).
Notably the Parliamentary committee did not adopt--or mention in its report--a key CBA recommendation, which proposed that parents' responsibilities to their children be enshrined in s. 16(5)of the Divorce Act.
The CBA said those responsibilities include loving, nurturing and supporting the child; consulting with the other parent on major issues affecting the child's health, education, and welfare; financially supporting the child; and "making the child available to the other parent, or spending time with the child, as agreed by the parents or ordered by the court, and so as not to cause unnecessary upset to the child, or unnecessary cost and inconvenience to the other parent."
The Parliamentary committee's failure to propose such a measure is telling, suggested Huddart, who has practised since 1982.
"My sense of this report is that it very much reflects the concerns that fathers were raising. You can hear the parents' voices in that report, but I'm not hearing the children's' voices," Huddart said.
"It's extremely important, and I think most lawyers would agree with me, that if we are going to be child-focused, then we have to stress not the rights of parents but rather the responsibilities. I think that's the bottom line.
"And I don't see that coming through in the report from the joint committee."
According to the committee's co-chair, Liberal M.P Roger Gallaway, the centrepiece of the report is Recommendation 5, which states that the terms "custody" and "access" should be replaced by the term "shared parenting."
"By the new term 'shared parenting', the Committee intends to combine in one package all the rights and responsibilities that are now embodied in the two existing terms--custody and access--and leave decisions about allocating the various components to parents and judges," the report states.
"Under the new regime and terminology formulated by this Committee, in almost all cases both parents will continue, after separation and divorce, to exercise their pre-separation decision-making roles with respect to their children," says the report.
"In other words, the power differential or the distinction in law previously accorded a custodial parent will be gone if this recommendation is enacted," Gallaway told reporters when the report was tabled in Parliament on Dec.9, 1998.
"The rights of one parent cannot be construed to be greater than the other," explained the Sarnia, Ont. lawyer. "This is not simply a change in vocabulary.
"It will mean that parents post-divorce will both he equal in terms of their legal rights. And I would like to suggest that this is a profound change in the position of post-divorce parents," said Gallaway. "Both parents having an order for shared parenting are going to be on a very, very even playing field."
Raponi, who has practised since 1982, is troubled by the emphasis on parental rights and powers visa vis one another instead of on parents' joint responsibilities to their children.
"When we start talking in rights-based language, I. have a concern about that," he observed.
"To the extent that the language is changed to ensure that parents, and those that are involved in dealing with these disputes, focus positively on the best interests of the children, I think that's positive."
Huddart noted lawyers already do many of the things recommended by the Committee, including negotiating parenting plans in many cases. "The difficulty is that in some cases you can't get parents close enough together to arrive at a solution, and those things are not going to be remedied by the 'shared parenting' recommendation," she observed.
"You can't have shared parenting when you have parents who can't speak to one another."
Curtis, who represented the National Association of Women and the Law at the Parliamentary committee, said the shared-parenting recommendation misses the point.
"The committee didn't get it," she said. "'This committee does not understand what the reality is for separating Canadian families which is that the majority of parents decide their post-separation custody arrangements by agreement and they make arrangements which basically mirror the caregiving arrangements that existed before the separation, which is the mom was the primary caregiver and she continues to be so--by consent."
(After separation 86 per cent of children live with their mother, seven per cent with their father, and six per cent in a joint custody arrangement, Statistics Canada says.) Curtis believes the committee overemphasized problems that affect relatively few separated families: false allegations of sexual abuse, parental alienation, bias against men in the courts, unethical practices by lawyers and access denial.
While the committee correctly identified the problem of fathers losing contact with their children post-separation, it failed to identify the main cause--which is men choosing to drop out of their kids' lives, Curtis said.
"Highly conflicted access or denied access does exist, but it's a very small part .of family law," she said. "Many groups said that to the Committee, including the Canadian Bar Association. In some cases there is so much conflict and hostility that there is really no way to fix those problems and we have to stop thinking, as a society, that we can fix that with just legislation."
Curtis dismissed the report as "a waste of time because it's so off the mark."
But Bala, who also testified before the committee, defended the report.
"The report acknowledges that those who are most dissatisfied with the way the system operates now, and who have the most horrific stories or who are the most extreme are those who participated" in hearings, he said.
"Fortunately, when one reads the report as a whole, the committee finally seemed to be fairly balanced and did not get caught up in the more extreme stories ' that are being told."
While access denial by custodial parents is less common than fathers not maintaining their relationships with their children, the fact remains that obstructed access is a problem affecting thousands of men and their children, Bala said. "To say it's not the norm doesn't say that it's not a serious problem."
Bala said he is "generally supportive of the thrust" of the report. "It has a lot of good ideas," he said, citing the committee's endorsement of parenting plans, parental education, more resources for civil legal aid, unified family courts, mediation, access supervision, advocacy for children in custody disputes, as well as the elimination of inappropriate, conflict-producing terms such as "custody" and "access."