National Post

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Thursday, May 06, 1999

Ottawa set to rewrite custody, access law
Cabinet approves proposal to give equal parenting rights after divorce

Chris Cobb
Ottawa Citizen

OTTAWA - The federal cabinet has approved controversial proposals to reform Canada's divorce law, a move that could give divorcing mothers and fathers the legal right to an equal role in raising their children.

Anne McLellan, the Justice Minister, plans to begin a process on Monday aimed at changing three areas of the law affecting children: custody, access, and support payments.

Ms. McLellan will be officially responding to recommendations by the joint Senate-Commons committee -- dubbed the Politically Incorrect Committee in some quarters -- that reported to Parliament in December after months of emotionally charged, often tearful hearings across Canada.

The cornerstone of the committee's recommendations is shared parenting, a new legal concept that would give mothers and fathers equal parenting rights after divorce.

Liberal Senator Landon Pearson and Liberal MP Roger Gallaway, the committee co-chairs, said the report's 48 recommendations are designed to reduce the impact of separation and divorce on children.

The Pearson-Gallaway committee held months of hearings during which fathers, grandparents, and second wives appealed for equality in a system they said allows custodial parents -- usually mothers -- to defy access orders and effectively lock fathers and other relatives out of the lives of children.

The report, For the Sake of the Children, said the terms custody and access should be eliminated from law and replaced with "shared parenting." It said judges should be bound to grant shared-parenting rights unless there is clear evidence of abuse of one parent by another or of children by a parent.

Shared parenting would give mothers and fathers the rights of custodial parents and, said the committee's report, help eliminate many of the custody battles that leave deep emotional scars and routinely cost divorcing parents tens of thousands of dollars in legal fees.

If shared parenting becomes part of Canadian law, it will put the onus on courts to make orders regarding children more specific and enable police to enforce those orders.

The child's living arrangement would not necessarily be 50-50, but both parents would have equal say over their child's upbringing and one parent would not be able to deny the other access to school or medical information, a common complaint among non-custodial parents.

Parents who agree on a shared-parenting plan without legal intervention would not be affected. About 80% of divorcing couples (almost 80,000 a year) fall into this category.

The report said this would also equalize a system that punishes parents -- usually fathers -- who default on support payments but not parents who routinely deny legal access to the children.

The committee was the target of feminist groups and women's shelters that accused members of pro-male bias -- a charge vehemently denied by Mr. Gallaway.

Ms. McLellan's decision to go beyond the committee's recommendations on custody and access and to include support payments in the mix is especially significant.

The Pearson-Gallaway committee suggested changes that would tighten the link between support payments and the enforcement of access orders. It also supported adjustments in support if, for example, the parent receiving support becomes significantly better off financially than the parent paying.

Ms. McLellan's response is likely to emphasize changing the law in co-operation with the provinces, which have jurisdiction over some aspects of divorce.

Other recommendations by the Pearson-Gallaway committee included:

- Elimination of supervised visitation without clear evidence of violence.

- Mandatory 90-day notice if one parent wishes to move a significant distance from the other.

- If one parent moves, an adjustment in support payments -- if necessary -- to allow the other parent to travel to visit the children or have children visit.

- End the right of one parent to deny the other access to their child's school or medical records.

- Giving extended family members, especially grandparents, the right to ask a court for access to children.

"Children do not ask their parents to divorce," said the report. "The committee heard testimony from children across Canada, none of whom said divorce was a good thing. What they did speak about was the disruption in their lives and the severe emotional distress that accompanied their parents.

"When parents divorce, children are left with a new set of worries and fears about what will happen to them. Children are not prepared for these worries and fears and they tend to struggle with them on their own. Children testified that they felt left out of proceedings that would determine the arrangements for their daily lives for many years to come. Many lawyers and mental health professionals supported the idea that children need a voice in divorce proceedings."

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