National Post

Tuesday, August 13, 2002

Divorce law to be less adversarial

Minister plans to drop 'custody' and 'access' - 'parental responsibility' possible successor

Janice Tibbetts
National Post

LONDON, Ont. -- The adversarial terms "custody" and "access" will be eliminated from Canada's divorce laws in legislation to be introduced this fall.

Martin Cauchon, the Justice Minister, said on Monday he intends to abandon the words because they create a "perception" of winners and losers.

His changes to the Divorce Act will be coupled with increased counselling and mediation for divorcing parents that will focus on the best interests of their children.

"I want to focus more on services," stressed Cauchon, whose proposals are intended to walk a fine line between the competing interests of mothers and fathers.

Sources said new terminology to replace custody and access has not been finalized. The words "parental responsibility" are being considered because the term fosters the idea that both parents are responsible for the care of their children after separation.

The move to drop custody and access, which follows five years of intense debate, cross-country hearings and many studies and reports, is bound to be explosive.

Fathers' and grandparents' groups have lobbied for the government to drop the language, which they argue is hostile and can prevent non-custodial parents from seeing their children.

Those groups have embraced the term "shared parenting," and have fought to give both parents legal entitlement to custody. The concept was the cornerstone of a 1998 report by a joint Senate and Commons committee that also recommended the government drop custody and access.

Cauchon, however, rejects the term "shared parenting" because it implies an automatic 50-50 split, a source said.

Blaine Collins, Saskatchewan president of the National Shared Parenting Association, said, "This is a step in the right direction but it is not nearly far enough."

He said Tennessee has a "Shared Parenting Bill" before the legislature which appears to mark "the beginning of the end of sole custody in the U.S."

"The Supreme Court of Canada has also said it is your right to be a parent. It is not a privilege to be doled out at the government's discretion."

The association has recruited more than 1,000 people to launch a class-action lawsuit against the government. Collins, a divorced father of two, is suing the Saskatchewan and federal governments for "harbouring" family laws he claims violate the Charter of Rights and Freedoms.

Women's groups have lobbied against any changes at all. They have warned the federal government to proceed with caution because they fear violent parents could get access to their children.

The Canadian Bar Association, however, supports eliminating "loaded language" from the Divorce Act, said family law expert Julia Cornish.

"Increasingly, we came to accept that the language was contentious. It had people thinking in terms of win or lose," Cornish, chairwoman of the family law committee, said yesterday.

"You heard people say, 'I'm going to lose my kids.' It shouldn't be an adversarial duking it out when parents separate. They're still parents, and we want people who separate to create plans on how they're going to care for their children."

The bar association, representing 37,000 lawyers, initially opposed dropping the words "custody" and "access," but later changed its policy and proposed in 1999 that the government adopt the words "parental responsibility."

Cauchon, who inherited from his predecessor, Anne McLellan, a promise three years ago to revamp the Divorce Act, hinted in May that he was against any major changes.

He said at the time he would consult with stakeholders before making up his mind on whether he would introduce amendments.

He suggested yesterday altering the language in the Divorce Act is the only legislative change he will make "in sending the message to the courts, lawyers and parents that the overarching goal we wish to achieve is to ensure that the best interests of the child are paramount."

He will take his proposed changes to the federal Cabinet before introducing legislation.

The 32-year-old Divorce Act has long been attacked as setting up an adversarial environment that pits mother against father and emphasizes parental rights instead of parental responsibilities.

"For the Sake of the Children," the 1998 joint committee report, advocated replacing the terms "custody" and "access" with "shared parenting." However, the report said shared parenting did not necessarily mean 50-50, but, rather, a realistic continuation of the routines in place before parents separate.

Exceptions would be made in the case of abuse or negligence.

About 70,000 Canadian couples divorce each year, affecting some 50,000 children. About one-third of all divorces involve formal custody orders, although some are negotiated by parents outside the court system.

According to Statistics Canada figures for 1998, mothers are granted custody in 60 per cent of cases, far ahead of joint custody (30 per cent). Fathers receive custody in only 10 per cent of cases.

A poll earlier this month found Canadians think the courts and the laws are biased in favour of mothers when deciding where children are placed after a divorce, and how much access is awarded to fathers.

The poll by Earnscliffe Research & Communications found about 35 per cent of Canadians think the legal system is biased on these issues, while only 10 per cent endorsed them as balanced.

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