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December 19, 2000

Courts often encourage parents to keep bickering

Donna Laframboise
National Post

This may be the season to be jolly, but dispatches from the divorce front remind us that lunacy and pettiness never take a holiday. In Victoria last week, a seven-year-old boy was at the centre of a legal battle after his father refused written consent for a three-week car trip to Arizona and Disneyland.

Jason Arsenault, the 28-year-old father, was prepared to deny his son this experience because Elizabeth Howse, his 27-year-old former common-law wife, wouldn't agree to refrain from smoking in the car.

As is always the case, those involved in this story believe firmly in the righteousness of their position. In my opinion, they're both nuts.

Mr. Arsenault says he's worried second-hand smoke will harm his son's health. In another legal action, he is seeking a court order barring his ex from smoking in the presence of the boy at any time. In his view, he's merely doing what fathers are supposed to: protecting his child from danger.

Ms. Howse's concern is that, despite having split from Mr. Arsenault, he's trying to control her life from afar. Moreover, since the law wouldn't dream of telling still-married parents when and where they can smoke, she's able to argue persuasively there's no justification for treating separated parents differently.

Had I been the judge last week, I'd have had stern words for both parties. I'd have reminded Mr. Arsenault that millions of us grew up in households where one or more parent smoked. Guess what? We survived.

Nor should we forget that red herrings such as these always backfire. For every father such as Mr. Arsenault, there's a mother who denies her ex access visits because he smokes. Smoking has become just another truncheon with which separated parents batter one another bloody.

While such people say they're doing what's best for the children, they're really self-obsessed children themselves. Except in cases involving medical conditions such as extreme asthma, loving fathers do not deny seven-year-olds trips to Disneyland on such flimsy grounds. Loving mothers do not deny children contact with their fathers for this reason, either.

Had I been the judge, I would nevertheless have also told Ms. Howse to take a hike. The separation agreement she signed with her common-law ex-husband says plainly that she needs his written permission to take their son out of the country. She therefore had a choice: either agree to Mr. Arsenault's condition she not smoke in the car, make new plans for a holiday within Canada's borders, or strike a compromise with her ex.

But instead of resolving this matter quietly and sanely, Ms. Howse insisted the taxpayer-funded court system play referee, that it override a legally binding contract.

The result? No one won. The separation agreement was undermined when judge Wayne Smith issued an order overruling the need for Mr. Arsenault's consent. But the judge only made this ruling after Ms. Howse agreed to do the very thing her ex had been requesting all along: not smoke in the car.

Rather than telling people they're expected to conduct themselves according to the terms of the contracts they've signed, judgments such as this encourage separated parents to continue bickering and to continue returning to court to plead for exemptions.

Mr. Arsenault and Ms. Howe should have been told to stop wasting the court's time. They should have been reminded that the money they are squandering on legal fees would be better spent on their son's education. Moreover, they should have been told that being a good father and a good mother starts with choosing wisely the person with whom one brings offspring into the world since parental separation itself inflicts profound psychic damage on youngsters.

The saddest part of this story is that, in the event that his mother lights up in the car after all, this little boy will be in the terrible position of choosing between ratting on her or concealing her violation of a court order.

There is something worse than growing up in a household where your parents are constantly at each other's throats -- spending your childhood in a legal war zone, torn between adults whose petty courtroom battles never end.

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