Thursday, December 10, 1998
Sharing kids aim of new divorce law
Report says term `shared parenting' is the real key
By Tonda MacCharles
Toronto Star Ottawa Bureau
OTTAWA - Canada's divorce laws would be dramatically overhauled to force parents to share the job of raising their kids after a marriage break-up under proposed changes unveiled yesterday.
Although a Senate-Commons committee does not call for 50-50 custody of children, it clearly states children must have access to both parents, except in cases where there is a ``proven history of family violence.''
The committee's report does not say on what basis a court should decide that, only that there must be ``clear evidence'' of abuse and then, it suggests, supervised access may be a possibility.
Over-all, the committee says most divorcing parents work out amicable settlements. But when they don't, the guiding principle should be the idea that divorced parents and their children ``are entitled to a close and continuous relationship with one another.''
To that end, the report entitled ``For the Sake of the Children'' makes 48 recommendations that suggest not only legal changes, but also a cultural shift in how adults must share the impact of divorce on children.
The recommendations include:
- The elimination in law of the words ``custody and access'' and the replacement of those notions with the concept of ``shared parenting'' which it defines as shared decision-making about, for example, schools, residence and medical treatment.
- Encouraging all parents to develop a ``parenting plan'' before separation that would outline how arguments would be settled.
- In cases of disagreement, a requirement that parents submit their version of a parenting plan to a judge for decision. Those decisions on parenting orders would be filed in a national computerized registry.
- Mandatory education sessions before any disputes are heard by a court. Parents in a dispute would not be required to attend together, but they would be required to learn about the impact of divorce on children, how to avoid conflicts, and where to get mediation to settle disputes.
- Courts must consider the ``best interests of the child'' defined by the committee to mean that grandparents and other family members should be considered as ``significant'' in a child's life.
- Courts should not favour one parent over another on the basis of gender.
- Both parents should get automatic access to records from schools, doctors or hospitals, unless a court rules otherwise.
If implemented, the proposals would represent one of the biggest overhauls to the 30-year-old law since Canada adopted the notion of no-fault divorce in 1985. It would potentially affect the lives of millions of Canadians.
In 1994 and 1995 alone, more than 47,000 children were the subject of custody orders when warring parents could not settle their disagreements.
The committee co-chairs said the switch to the notion of ``shared parenting'' is not just a matter of semantics but ``a profound change in the position of post-divorce parents.''
``The rights of one parent are not greater than the other,'' said Liberal MP Roger Gallaway (Sarnia-Lambton). ``Both parents are going to be on a very, very even playing field.''
Liberal Senator Anne Cools, who became a vocal advocate for fathers' rights in the hearings, agreed.
`The children of divorce deserve the love and support of both of their parents'
``It does exactly what I wanted,'' Cools said. ``The children of divorce deserve the love and support of both of their parents, both mothers and fathers, which is in point of fact shared parenting.''
Still, the committee stopped short of some of the contentious suggestions that surfaced in early drafts: that new criminal sanctions be applied against those who make a false abuse allegation against a spouse. The report merely urges courts to take action against those who falsely accuse seriously.
One divorced father, Danny Guspie of the National Shared Parenting Association, waited outside the committee's news conference to tell reporters the report was a good first step, but should have made a tougher recommendation against false abuse accusations.
Reform MPs blamed Liberal ``ideological intransigeance'' for the watering down of that recommendation and the milder one on grandparent access.
``Grandparents should not have to ask permission,'' said Reform MP Paul Forseth (New Westminster-Coquitlam-Burnaby), who wrote a dissenting opinion to the report.
But a grandparents' group called G.R.A.N.D. endorsed the report, saying it will make it easier to see grandchildren.
The Bloc Québécois and the New Democratic Party also dissented from the main report. Both questioned the need to show ``proven violence'' before access to a child is restricted.
Justice Minister Anne McLellan said in a statement she supports the committee's focus on the interests of the children, and the rejection of a ``one-size-fits-all'' approach.
She noted federal and provincial jurisdictions overlap in matters of divorce and said she would consult with the provinces and territories on the committee's recommendations.