Toronto Star

Saturday, May 8, 1999

Divorce law review to go ahead

Contact with both parents needed, government says

By Tonda MacCharles
Toronto Star Ottawa Bureau

OTTAWA - Canada's divorce laws are to be overhauled during the next three years to ensure children maintain strong relationships with both parents even after a marriage breaks up.

Justice Minister Anne McLellan will announce on Monday the federal government's response to recommendations made last year by a joint Commons-Senate committee.

It will entail a three-year consultation with provincial and territorial governments, and later the public, to come up with specific legislative proposals to re-focus Canada's family law on the ``best interests of children.''

That concept is already the cornerstone of the Divorce Act, but Ottawa agrees it's a notion that needs boosting.

In her response, sources say McLellan will partly agree with the key recommendation of the parliamentary committee to eliminate the terms ``custody and access'' in the Divorce Act.

Those terms, the government agrees, promote an adversarial approach, and emphasize parental labels such as custodial and non-custodial parent or primary care-giver as well as the notion of parental rights that stress ``ownership'' instead of parental responsibilities, a government source said.

The idea is to move instead toward a system that puts children front and centre, and recognizes their need to maintain meaningful relationships with both separating parents.

``We recognize there are problems with the current family law system,'' the source said.

Flexible approaches will be encouraged because the government feels that no one arrangement can fit all post-separation circumstances. It also recognizes that about 80 per cent of divorcing parents already come up with mutually agreeable parenting plans.

But after five months of studying the all-party committee's report, McLellan will not endorse its primary recommendation of replacing ``custody and access'' with the concept of ''shared parenting.'' At least not yet.

McLellan acknowledges the terminology ``shared parenting'' has the advantage of emphasizing each parent's obligations and responsibilities.

Still, the government is wary of the interpretation some women's groups have given the term. They fear it means automatic joint custody or a 50-50 parenting arrangement, which they argue is inappropriate, especially in breakups involving of domestic violence.

The committee always insisted ``shared parenting'' never meant a 50-50 arrangement, but rather a joint role for both parents in child-rearing. It defined the notion as shared decision-making not necessarily equal time sharing.

However, McLellan will talk about the need to seek a clear, constructive term that avoids such conflicting meanings.

The government does not deal with all 48 of the committee's recommendations, but does endorse a few, such as the need for ways to quickly and fairly resolve access disputes.

The government adopts the committee's suggestion for a co-ordinated nationwide approach to parents who fail to respect parenting orders. It wants to look at early intervention, parent education programs, a policy that would allow parents denied access to make up the missed time with their children, mediation, and in really tough cases, some kind of ``punitive'' response for the obstructive parent.

The government will also agree with the committee on recognizing the role of grandparents and other extended family members as significant in children's lives. It, like the committee, does not go so far as to suggest grandparents must have automatic rights of access.

In cases of family violence, the government says measures are needed to protect children from attacks or threats of violence, and from poor parenting or exposure to the arguments of warring parents.

But it has distanced itself from a controversial committee recommendation that said only in cases of ``proven history'' of violence should a parent's access to a child be restricted.

It will commit only to further study of issues surrounding family violence. It will also study whether current Criminal Code provisions for perjury are adequate to deal with a parent who makes a false abuse allegation against an ex-spouse, or whether new sanctions are needed.

The government's review of the Divorce Act will take place along with a review promised for 1997 child-support guidelines. Those guidelines changed the tax structure for parents paying and receiving child support and established a formula for how much support should be paid.

Committee co-chair Roger Gallaway, a strong proponent of the need for change in Canada's divorce laws, was skeptical in an interview of the need for more consultation, but said ``it may be a wise move'' to tie the government's review of divorce laws to the re-examination of child support.

Once drafted, the reforms would be the biggest overhaul to the 30-year-old law since Canada adopted the notion of no-fault divorce in 1985, and could potentially affect the lives of thousands 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.

Contents copyright © 1996-1999, The Toronto Star.