Vancouver Sun

Tuesday 10 July 2001

New ideas on revising divorce law make sense

Let parental responsibilities trump parental rights

Vancouver Sun

As the biblical story of Solomon illustrates so well, there's nothing new about the head-hurting difficulty posed by child custody battles. When parents dig in, each determined to emerge the "winner" of a nasty dispute, you can be virtually certain the children will lose and lose big.

So we're impressed by the underlying wisdom in the Canadian Bar Association's sweeping proposals for divorce reform.

"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," said Jennifer Cooper, who speaks for 2,200 divorce lawyers across Canada as the chairwoman of the association's family law section. "We want to pull away from the idea that parents have rights in relation to their children as if they were property or a chattel."

The lawyers want an amended law to spell out a detailed list of parental responsibilities so family court judges can decide, when the parents can't agree, which one will do what. Two of the governing factors would be the children's needs and each parent's ability. And what would be included under the division of responsibilities ranges from who provides the home and the money, to who meets the day-to-day needs of the child, to what kind of consultation will take place about the big issues in a child's life such as health, education and religion.

This approach strikes us as a sensible way to address the two big problems that tend to fall out of bitter child custody spats -- on one hand a parent who's squeezed out of a child's life by a vengeful former partner who "won" custody, and on the other hand a parent who dumps the child on a former partner and walks away from all further responsibility and contact.

The lawyers go further with some innovative suggestions -- for example, a proposal that divorcing couples would have to take a post-divorce parenting course before they'd be allowed to fight over the kids in court. There are parents involved in divorce proceedings who are so embittered that such a course would probably make no difference -- they must know what damage their intransigence is doing to their kids but they stick to it anyway. Yet in places where the idea has been tried on a small scale, including British Columbia, such courses are proving to be an eye-opener for a lot of parents.

Ottawa last amended its child support guidelines four years ago. A logical opportunity to review them will come up next spring when Justice Minister Anne McLellan is to report to Parliament on the effectiveness of the changes.

The minister and her staff may have some ideas of their own about how the rules can and should be changed. But we think she should look very carefully at the bar association's proposals. And we think that the underlying principle -- that the courts should be looking at the question of parental responsibilities more than at parental rights -- is one well worth entrenching.