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March 8, 2001

Micromanaging families

National Post

The Canadian Human Rights Act, like its provincial counterparts, says it is unlawful to treat people differently based on their marital status. But family court judges routinely impose obligations on divorced parents they would never dream of imposing on married ones. Kelly Muller, a British Columbia divorced father, is under a court order that tells him what he can and cannot feed his daughters, aged five and nine. Brenda Melville, the children's mother, is a vegan -- a strict vegetarian who eschews eggs and dairy products in addition to meat, who feeds her children accordingly. Assuming the children are receiving adequate nutrition (and a doctor who recently examined the five-year-old has concerns), this is Ms. Melville's right. It should also be Mr. Muller's right to buy his daughters a burger while they are in his care. Last August, at the behest of Ms. Melville, however, a judge ordered Mr. Muller not to. In December, a second judge directed Mr. Muller to "keep a daily record of what foods the children eat during the Christmas access and provide a copy of the record to [Ms. Melville] at the conclusion of the Christmas season visit, and that the record be signed personally by [Mr. Muller] and his mother."

The egregious directions to the children's father in this case are not by any means unique. In December, a judge permitted a seven-year-old boy's mother to take him on a trip to Disneyland only if she agreed to refrain from smoking in the car. In January, the father of another five-year-old tried to convince a judge to order his son's removal from a Nova Scotia French immersion school on the grounds it might prevent the boy from joining him in the United States later on. Other divorced parents have asked the courts to rule on whether their children should receive religious instruction, or take piano or ballet lessons or whether they should attend summer camp in Canada or abroad.

Our adversarial court system was not designed to deal with this minutiae for the very good reason that this stuff is none of any judge's proper business. Family law courts should not allow themselves to be dragged into such disputes; no one should be able to order a parent not to smoke or not to give a child a hamburger. The court's only role in such a dispute is to tell the party seeking such an order that they may not make it a ground for denying their estranged spouse access to his or her children.

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