Toronto Sun

Monday, May 10, 1999

Divorced dads catch a break

Toronto Sun

There's something for just about everyone in the grab bag of recommendations to change the Divorce Act in the areas of child custody, access and support.

Everyone, it seems, except religious parents.

And it's not clear that all the winners - among them dads, grandparents and same-sex parents - deserve the breaks they're likely to get.

The 48 recommendations, devised by the Senate-Commons Committee on Joint Child Custody and Access and recently approved by the federal cabinet, form the basis of Justice Minister Anne McLellan's plan being released today to amend the Act.

I have no quarrel with the enhanced role for dads stemming from the recommendations.

A lawyer who testified at committee hearings last year said fathers seeking custody often face the stereotype "mother knows best and father pays best."

Thus, mom got custody; dad got the bills.

Fathers also fought against the "tender years doctrine" - that children under 7 years are better off with their mothers - which was discredited in law in 1976 but still influenced judicial decisions.

To redress that gender bias against men in the system, the committee called for rejection of the tender years doctrine as a guide to decision-making about parenting, and stated there "shall be no preference in favour of either parent solely on the basis of that parent's gender."

More significantly, the committee calls for the terms "custody and access" to be replaced with "shared parenting." The new term suggests that no parent is automatically the better one, and that there's more to parenting than writing a cheque once a month.

The recommendation also entrenches a father's right to access information about his child, such as medical records and school reports, that as the non-custodial parent he was often denied. Without this information, fathers were effectively trying to parent while blindfolded with one hand tied behind their backs. The change is welcome.

Also welcome is the recommendation that "sexual orientation not be considered a negative factor in the disposition of shared parenting decisions." The recommendation, not widely reported, signals a significant change in attitudes, at least at the parliamentary level, regarding the still highly controversial issue of gay and lesbian families and parenting.

Regardless of one's views about the morality of same-sex relationships, however, some gays and lesbians are parents and deserve access to their children.

Contentious beliefs?

It's unfortunate, though, that the committee didn't take the same approach in dealing with the religious beliefs of parents, which, the report states, can become "a contentious point of conflict ... particularly where one parent's religion requires onerous observances or practices." Thus, committee members stated, courts "should be permitted to consider religion when it is a factor."

Where does that leave the parent who enforces the potentially "onerous" practice of weekly church attendance, or prayer five times per day? No legal religious practises should be used against a parent in deciding shared parenting, even if a judge deems them "onerous."

Elsewhere, the committee was overly generous to grandparents. They already have the right to apply for access to grandchildren, but the committee recommends modifying provincial and territorial family laws along the lines of Quebec's Civil Code, which guarantees grandparents access to their grandkids unless it can be shown that's not in the children's best interest.

Even though it would be ideal for children to see their grandparents, parents should not be legally required to further divvy up the precious little time they have with their children. That time has already been cut in half by the parents' divorce. And if the grandparents are also divorced, which is all too common, the time is divvied up with at least four other sets of people. It's true that when couples marry they inherit a family, but the marriage contract only legally binds the couple to each other. When the marriage ends, the extended family should not be granted extra legal rights that weren't there during the marriage.

Overall, though, the changes to the Divorce Act are long overdue and generally head in the right direction.

Marianne Meed Ward, a freelance writer with an interest in social and ethical issues, appears Mondays. Her e-mail

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