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September 7, 2001

Child custody reform on back burner

Committee's bid to create fairness for fathers in Divorce Act apparently sidelined: McLellan documents

Luiza Chwialkowska
National Post

Fred Chartrand, The Canadian Press
Liberal MP Roger Gallaway, left, and Senator Landon Pearson worked on a committee to change child custody concepts in the Divorce Act but Gallaway said yesterday government officials are urging the status quo.

Tom Hanson, The Canadian Press
Justice Minister Anne McLellan.

OTTAWA -Internal documents from the federal Department of Justice suggest Anne McLellan, the Minister of Justice, has been advised to ignore the core recommendation from a parliamentary committee that worked on an overhaul of child custody provisions in the Divorce Act, says Roger Gallaway, a Liberal MP who is co-chairman of the committee.

Written advice from senior officials to the Minister suggests high-level resistance to replacing Canada's custody-and-access rules with a requirement that mothers and fathers share equally in parenting decisions after divorce, said Mr. Gallaway, who co-authored the report with Liberal Senator Landon Pearson.

Mr. Gallaway's conclusion echoes the findings of an Aug. 20 National Post editorial based on the documents, obtained under the Access to Information Act by an independent researcher and provided to the Post.

The editorial said the documents "clearly indicate that Ms. McLellan and some justice department officials decided early on to reject any steps toward shared parenting."

Ms. McLellan must respond by next May to the report, presented to her in December, 1998.

The documents do not reveal the content of her response, but Mr. Gallaway said they show departmental resistance to the committee's core recommendation -- that sole custody orders give way to shared parenting.

"My conclusion has to be that, although there was a committee working, they had no intention of accepting or following the recommendations of the committee," he said after reviewing the documents.

The papers include an analysis of the committee report, dated Feb. 12, 1999, prepared by Virginia McRae, a senior justice department official, stating, "it is very unclear how this recommendation [of shared parenting] could be legally operationalized."

The label of shared parenting is "at best a cosmetic approach" that could "result in changing expectations and more custody disputes," the analysis said.

"New language will become as loaded as the old," it adds.

The analysis also says that the committee recommendation of a preamble referring to a "child's right to close and continuous relationship with both parents" could be "problematic" and would "weaken the best interest of child principle."

A separate undated and unsigned document states, "the department cannot support the ... position to impose a presumption of joint parenting in the Divorce Act."

Another document recommends that the government "recognize that no one model of post-separation parenting will be ideal for all children," and suggests that legal reforms "allow for flexibility of outcomes."

Mr. Gallaway said the recommendations fly in the face of the committee report.

"They don't want to touch the Divorce Act in any way," he said. "They may agree to do away with the words 'custody and access' but the plan is that judges will still hold the authority to decide who will have the time and who won't. So they're changing the vocabulary, but they are leaving this enormous power with social workers, psychologists, and lawyers to fight the fight and assess which parent is fitter," he said.

"We wanted to take away from judges this battlefield of deciding which parent is better than the other," he said.

Mr. Gallaway says the documents also suggest that the government plans to increase the involvement of social workers in divorces.

"They are going to pour money into programs on mediation, conflict resolution, programs on this and that. But the Divorce Act, as it is, is holy to them," he said.

Farah Mohamed, spokeswoman for Ms. McLellan, said the Minister has not yet decided on a response to the report.

"I find it a bit outrageous to suggest that the Minister is planning to ignore something when no decisions have been taken about terminology," she said.

"What [the committee] has said is consistent with what the Minister has said -- that it is important for children to have continued involvement with their parents unless this is not in the best interests of the child. This is what we are consulting on, and again, no decisions have been taken," said Ms. Mohamed.

Mr. Gallaway disagreed with the department's assessment that his committee's recommendations were unclear or unworkable.

"The objective of the report was to make the parents equal in terms of decision-making powers involving their child or children. It makes it very clear that we understood it did not mean that a child would spend 50% of their time with one parent and 50% with the other because in many cases it's not always possible," he said.

Mr. Gallaway also said he detected an anti-father bias in the tone of the documents. The communications plan suggested emphasizing that the parliamentary committee heard from a "large number of fathers' groups," even though the number of women's groups appearing was larger, he noted.

The communications plan emphasizes that only 10% of divorces are disputed in the courts, but fathers' groups complained the existing legal framework gives women the upper hand in negotiating out-of-court settlements.

(Each link opens a new window)

  • Divorce Act
    The entire act online.
  • The Children's Voice
    Advocates the dismantling of the adversarial system in Canadian family law.
  • FACT
    Fathers Are Capable Too advocacy page.
  • Joel Miller's Family Law Centre
    A large Canadian-based site with comprehensive links to family law guidelines and legislation.
  • Status of Women Canada
    Federal government agency mandated to promote gender equality.
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