July 9, 2001
Force divorcing parents to take courses: lawyers
Federal act faces review
OTTAWA - The Canadian Bar Association is pushing for sweeping divorce reforms. They include forcing all divorcing couples to take post-divorce parenting courses before they can fight about their kids in court and empowering judges to deal with non-custodial parents who fail to keep up their relationship with their children.
In a written submission last week to the Department of Justice, the influential body of 36,000 lawyers called on the federal government to make fundamental changes to the provisions of the Divorce Act relating to children.
The group's central recommendation is that the contentious terms "custody" and "access" be abolished in favour of the new, more child-centred concept of "parental responsibility."
Under the lawyers' proposal, specific parental responsibilities would for the first time be set out in law. In cases where couples could not agree on how to split those duties, judges would be able to create customized "parenting plans" allocating post-divorce responsibilities to parents according to their abilities and the best interests of the children.
"A lot of the debate in Canada has emphasized the issue of the rights of parents, and we think the focus should be more on the responsibilities of parents.
"We want to pull away from the idea that parents have rights in relation to their children as if they were property or chattel," said Jennifer Cooper, chairwoman of the CBA's national family law section, which represents the views of 2,200 divorce lawyers across Canada.
The CBA's expertise and broad perspective virtually guarantee its input will help shape the coming, first major overhaul of the custody and access provisions in the Divorce Act, which affect tens of thousands of children and divorcing couples each year.
A bill could be introduced next spring when Anne McLellan, the Minister of Justice, is obliged to report to Parliament on child support guidelines enacted in 1997.
"Our experience as lawyers and lawyer-mediators is that problems are easier to solve if we get away from hot-button words like 'custody,' " the CBA says in its submission to a committee of federal and provincial officials that ended its Canada-wide consultation on child custody, access and support last month.
"Moving away from the word 'custody' will help to push parents away from the mentality of winner and loser which currently permeates custody disputes," said Ms. Cooper.
A cornerstone principle endorsed by the CBA, echoing a similar stance by the federal government and by the special joint Senate-House of Commons committee that reported on custody and access in 1998, is that children need and have the right to meaningful relationships with both parents.
Therefore the association agrees that judges must have wide powers to remedy the improper, persistent denial of access by custodial parents, usually women.
The CBA notes, however, that the "equally important" problem of non-custodial parents, usually men, failing to exercise the access they have agreed to or been awarded has been virtually ignored.
Although children would not benefit if courts forced their parents to spend time with them, courts should be empowered to use "creative" solutions to remedy this problem, the CBA argues.
The CBA also urges the federal government to require parents to take mandatory parental education before they are permitted to pursue court proceedings involving their children.
Ontario, British Columbia, Nova Scotia and Saskatchewan are experimenting with mandatory programs in some centres, among them Toronto and Halifax, but Alberta blazed the trail in 1996 with a successful "Parenting After Separation" program that is now provincewide.
Subjects covered include the effects of divorce on children and parents, legal issues and parenting plans.
"Having this information really does open their eyes. People don't just say: 'It's my spouse's fault'. They say, 'Yeah, I've got to work on that,' " said Calgary lawyer Lonny Balbi, one of a number of lawyer-volunteers who teach for free.
The CBA advocates legislating a list of parental responsibilities that a court can share between the parents, or allocate individually, according to the children's needs and the parents' abilities.
Such responsibilities would include maintaining a loving, nurturing and supportive relationship with the children; financially supporting the child; meeting the child's day to day needs; consulting with the other parent on major health, education, religious and welfare issues; encouraging the child to respect the other parent; providing financial support; and making the child available to the other parent or spending time with the child as agreed by the parents or as ordered by a court.
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