National Post

April 10, 2002

Genetic wallets

National Post

A recent Ontario Court of Appeal ruling underlines Ottawa's need to reform Canada's child custody and access laws. The three justices decided unanimously that a Toronto man must pay full child support to his former lover for their teenaged son. The parents were together only a few months after the baby was born and the father did not seek access at first. After a year, he changed his mind and offered regular support payments in exchange for the right to see his boy. The mother, who had custody, refused his request and the father therefore played no further role in the boy's life. The mother married another man, with whom she and the boy lived for nine years. This man already pays full child support, but the mother wanted more, and sued to obtain it from the boy's biological father. The Ontario justices agreed, reasoning, among other things, that the father had enjoyed "a holiday from support for many years."

The problem with this is not whether the justices were right in law; it is, rather, the fact that the father has been treated woefully unjustly. The court must administer the law rather than make it up, but if the outcome of this case is what the law demands, then the law is an ass, for it has held both that the father may play no role in his son's life and that he must pay for the boy's upbringing. We are not talking here about a father who mistreated his child or its mother -- a case in which it would be reasonable simultaneously to expect support payments and deny access. What we have, rather, is a case typical of the many, many thousands in which a relationship between father and mother has broken down, and the father has been allowed no rights, merely financial duties. He is, in effect, regarded as nothing more than a genetic wallet.

The problem stems from the dreadful legislation governing child access and custody laws, which are steeped in misandry and 20 years of judicial precedents that treat children as the custodial parent's (mostly mothers) property, while treating non-custodial parents (mostly fathers) as visitors, or less, in their children's lives. Three years ago, after two years of study and hearings, a special 23-member, all-party Parliamentary committee produced a report called For the Sake of the Children which advocated shared parenting. If this system had been in place over the past generation, many injustices would have been avoided. And if it were in the statute book now, it would avoid many such cases in the future.

But the federal government, guided by Anne McLellan, who was Justice Minister until the recent Cabinet reshuffle, has refused to implement For the Sake of the Children, and accepted the counsel of pressure groups who prefer arrangements that are biased against fathers. Canada's new Justice Minister, Martin Cauchon, declared in February that he might not heed the report either; he claims to believe, contrary to the findings and exhaustive research of the non-partisan Parliamentary committee, that changes would not be in the best interests of the children. He should think again, and table legislation in line with For the Sake of the Children without delay.

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