National Post

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Tuesday, July 20, 1999

Class-action suit threatened over suffering by children of divorce

Sheldon Alberts
National Post

OTTAWA - A national parenting group is threatening a class-action lawsuit against the federal and provincial governments to compensate adult children of divorced parents who suffered psychological trauma caused by Canada's custody laws.

Danny Guspie, executive director of the National Shared Parenting Association, said his group has begun research to determine whether Ottawa and the provinces have had clear evidence of the emotional trauma suffered by children who are deprived of a parent after custody battles.

"We are looking at a class-action lawsuit against the governments for the damages they have done to children of divorce over the last 30 years," said Mr. Guspie, himself a child of divorced parents who turned to drugs as a teen to cope with the stress.

"It is our contention that the governments knew these things would happen when they configured these laws years ago, but they chose to ignore that advice and that there is a whole generation -- maybe two or three -- who are entitled to some compensation."

The association argues that children of divorce are at much greater risk of delinquency, criminal behaviour, substance abuse, depression, suicide and even teen pregnancy. An estimated 50,000 children a year are affected by divorce.

Mr. Guspie is eyeing legal action out of frustration with the refusal of Anne McLellan, the federal Justice Minister, and her provincial counterparts to quickly amend Canada's divorce and custody laws to mandate an equal role for both parents following a breakup.

The group wants Ottawa to scrap the current system of custody and access and legislate "a presumption of equal shared parenting as the 'starting point' after separations or divorce."

Fathers' rights groups, too, have complained that the current laws allow custodial parents, most often mothers, to effectively prevent fathers and paternal grandparents from having a role in their child's rearing.

In May, Ms. McLellan announced the government would spend the next three years holding public hearings working with the provinces to study reforms to the Divorce Act.

Ottawa has endorsed the idea of replacing the concepts of sole custody of and access to children by one parent with "child-centred" rules that strengthen the roles of both parents, but it does not explicitly endorse the concept of shared parenting.

While the federal government has jurisdiction over child custody and access laws in divorces, the provinces administer the Divorce Act and hold sway in cases where parents are separated or were never married.

The shared parenting association said it is disappointed with provincial responses to a questionnaire about custody laws. The results of the polls, which Mr. Guspie released yesterday, show no province or territory is yet prepared to back the idea of shared parenting.

"British Columbia believes that any reform to family law must be child-centred and must recognize that no one model of parenting will be ideal for all children," Ujjal Dosanjh, Attorney-General for B.C., wrote in response to the shared parenting association's questions.

In Alberta, a legislature committee on child access recently decided against recommending a presumption of child parenting.

"Instead, the report stressed the importance of the continuing presence of both parents in the lives of their children" and recommended children have a statutory right to access to both parents, wrote John Booth, a lawyer with the province.

Mr. Guspie said the provincial responses amounted to empty words. "Nobody wants to take a leadership role," he said. "What we got back, essentially, was rhetoric that we must look at the best interests of the child, but no acknowledgement that is not what is really going on within our family law system."

His group plans to contact access to information commissioners in Ottawa and the provinces and obtain all studies that have been conducted about family law and child custody. They hope to build a legal case based on that information, then find test cases showing specific instances where children have suffered as a direct result of custody laws.

"The class-action lawsuit is at the beginning stages," he said.

Mr. Guspie said children of divorced parents should be compensated with extra tax money --an estimated $500-million a year -- raised by the federal government since the implementation of Bill C-41. The legislation changed federal tax laws to child-support payments tax-free to the custodial parent while taking away the tax deduction for child support from the parent who pays.

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