Toronto Star

Apr. 30, 2002

Ottawa stalls on Divorce Act changes

Delay called 'staggering ... unacceptable' by critic

Toronto Star

OTTAWA (CP) Three years of consultation on proposed changes to the Divorce Act changes born out of year-long cross-Canada study have not been enough to permit the government to act, Justice Minister Martin Cauchon said today.

"It may look quite simple from outside but we have a variety of opinion from different groups, different stakeholders," Cauchon said outside the Commons.

New policy dealing with the emotionally fraught issue of child custody can be expected next autumn, he added, noting he became justice minister only three and half months ago.

"Being (a) new minister, you will understand that I want to take the time to get involved myself into the topic, to better understand the situation, the different positions and being who I am, I mean, I want to be in touch with people."

All the same, said Cauchon, don't expect "major changes" to the Divorce Act, which dates back to the 1970s.

The Canadian Bar Association, various groups representing fathers, grandparents, children of divorce and some parenting organizations have been seeking changes they said would make the system easier on kids, less confrontational or more equitable in parental access.

Some women's groups have preached caution, warning that any change might place children and mothers in danger of family violence.

The latest delay in reforms came the same day a mandatory five-year assessment of federal child support guidelines declared the regime "a solid success."

Proponents of change were dumbfounded.

Liberal Senator Anne Cools said the government has been stalling ever since a Senate-Commons committee wrapped up a year of hearings in late 1998 and made 48 recommendations to overhaul the Divorce Act. The key provisions dropped child custody and access as starting points in favour of shared custody.

After giving all but two of the proposals a favourable review, then justice minister Anne McLellan announced three years of consultations, to be wrapped up by May 2002.

Cools called Cauchon's latest delay "staggering, astonishing and unacceptable."

"The about-face on this question is as great as an about-face that was taken on the GST except worse because this is about babies and children."

She also said the overwhelming message to the Senate-Commons committee was that child support programs were not working, although she had not seen today's assessment.

But the National Association of Women and the Law believes some of the proposed changes are ill-advised, based on the experiences of other countries which have adopted them.

Susan Boyd is a law professor at the University of British Columbia, who researched experiences in Australia and Britain for her book Child Custody Law and Women's Work, to be published this summer.

"Basically the studies have shown there has not necessarily been an improvement in the way decisions are made concerning children after divorce," Boyd said from Vancouver.

"Other problems arose, and in some cases children and their caregivers have been put in some danger."

Boyd conceded the system needs improvement.

"Most groups on whatever side of this issue would agree there are problems with the current system, but the question is whether the recommendations in that report are likely to fix them," she said.

"That's really where the disagreement lies."

The Senate-Commons recommendations included:

  • Shifting family law focus to the best interests of children and away from parental rights and child "ownership."

  • Elimination of the "tender years doctrine" in which young children almost automatically live with the mother.

  • New principles to decide parental arrangements where neglect or other problems have been alleged.

  • A review of the Criminal Code to see if false allegations of abuse are sufficiently deterred.

  • A specific framework to deal with feuding parents, depending on the conflict level.

    The government accepted the premise of the report and said it needed to consult with the public and particularly the provinces, which administer much of the family law. Several provinces, led by Alberta, have successfully adopted education projects for divorcing parents.

    Three years later, Cauchon gave few hints today about what direction Ottawa is leaning.

    "We have different options," he said.

    "It could be change in the legislation. It could be more focus on the services. It could be a blend of both as well. We'll see."

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