National Post

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Saturday, April 17, 1999

The problem is divorce, not the custody rules

David Frum
National Post

Some problems have no good solutions.

Over the past few months, Canadians have heard a succession of heart-rending stories from divorced men whose ex-wives have abused custody of the couple's children. Earlier this week, the National Post recounted the disturbing story of three-year-old Talia Cino. Talia's mother and father separated when she was six months old. Her mother moved to British Columbia from Ontario, and has refused for 212 years to let Talia's father bring her back to Ontario to visit her grandparents. The child may return, the mother says, only in an emergency, and then only if the father pays for an air ticket for both the child and herself.

Canada's most courageous senator, Anne Cools, has been collecting and publicizing examples of such outrages. There is no shortage of them. Defying prevailing dogma that only men are ever to blame, Senator Cools argues that women too have been known to cheat and lie and trample the rights of others. She points out that Canadian law sternly punishes fathers who shirk their child-support obligations, but goes easy on mothers who deny fathers their visitation rights -- sometimes filing false charges of child abuse along the way. And she has boldly called on Parliament to do something: to rectify what she sees as gross bias against fathers in our divorce courts.

But do what? Senator Cools' solution -- and that of the many wronged divorced fathers who cheer her on -- is to abandon our present preference for maternal sole custody and to move toward a regime of joint custody.

The advocates of joint (or shared) custody make some powerful arguments. They complain that while Canadian society expects married fathers to share the work of child-rearing equally, the minute the marriage ends we revert to the old stereotype of wife as nurturer and father as uninterested newspaper-reading, pipe-smoking office body. If men are supposed to share the burdens of child rearing, why are they not also entitled to share the privileges?

It's a good point. But this, too, is a good point. Shared custody replaces the hardships and injustices of maternal sole custody with a whole new set of hardships and injustices. It splits children's lives between two homes, with two often radically different sets of rules and values. It exposes the most personal decisions -- decisions about work, about sex, about remarriage -- of each parent to the continuing scrutiny of that parent's ex-spouse. And it requires people whose relationships have irretrievably broken down to make thousands of minute decisions together.

Shared custody can work when a couple chooses to make it work. But the fair-minded couples that voluntarily choose shared custody are of, course, not the couples that are generating horror stories like little Talia Cino's. By urging Canadian courts to impose shared custody on warring couples like those, Senator Cools is gamely trying to resolve the irreconcilable: to find some legal mechanism that will turn antagonistic ex-spouses into co-operative co-parents. But there is no such mechanism, and Senator Cools needs to understand why there cannot be.

In law, we are often forced to choose between fair rules and clear rules. "Mother gets custody unless she's unfit" is a clear rule, but not a fair one. "Divorced parents should jointly make all important decisions about their children" is a fair rule, but not a clear one. The word "jointly" skips a little too lightly over some nasty conflicts. What if one parent admires the discipline of the local Catholic school, while the other rejects its religious teachings? What if one parent thinks Dr. Goldberg is the right person to perform an important operation, while the other trusts Dr. Wong?

Canadians are very alive to the importance of fairness, and tend to underestimate the value of clarity. But clarity has one great merit: it averts conflict. When we know what the rules are, we don't argue about them. When the rules are up for grabs, we do. That's one important reason that judges have historically mistrusted shared custody. They know that for couples that do not willingly choose it, it is an infinitely reusable return ticket back into court.

This is not to say that sole maternal custody is a good solution. It isn't good either. All divorce outcomes are always unsatisfactory. By vainly trying to make divorce work better, we are averting our eyes from the real trouble with the Canadian family: not divorce law, but divorce itself. So long as one child in three is born outside wedlock and four marriages out of 10 end in divorce -- so long, in other words, as a majority of Canadian children live for at least part of their childhoods in a single-parent home -- all but the calmest of ex-spouses and the luckiest of divorced children are going to suffer the evils that Senator Cools has so painstakingly exposed. What we need is not a better custody regime, but fewer children under custody agreements.

The usual reply to such a statement is that people who worry about divorce are inviting the government into the bedrooms of the nation: involving the state in intimate decisions that are none of its business. In fact, as the story of Talia Cino reminds us, it is loose divorce laws that invite the state into private life. It is a government employee who is deciding where Talia will spend her holidays. And under a regime of joint custody, government employees will stick their noses even further into family life, refereeing arguments over whether the child must attend church every Sunday, how much makeup a 14-year-old girl should be permitted to wear, and whether pizza is junk food or not.

Copyright Southam Inc.