Calgary Herald

Thursday, December 05, 2002

Why fight it?

Cauchon should change law to give divorced parents equal access to children

Calgary Herald

Children of divorce have a right to access to both parents. It's not too late for Justice Minister Martin Cauchon to stand up to self-interested lobbyists who would have it otherwise.

If he doesn't show such leadership, Ottawa will have a nasty court fight on its hands which could cost millions, drag on for years and result in laws no friendlier to families.

Despite two exhaustive government studies recommending widespread reforms to the 32-year-old Divorce Act, Cauchon is expected next week to table some superficial tweaking. Adversarial concepts such as "custody" and "access" will be replaced by gentler terms and divorcing parents will be forced to get counselling.

Missing will be an underlying legal presumption that children should have access to both parents, except where there's violence, abuse or neglect.

Although a 1998 special parliamentary committee report, titled For the Sake of the Children, recommended the historical bias against fathers be corrected, and subsequent cross-country hearings by then-justice minister Anne McLellan found broad public support for shared parenting, the federal Liberals have been loath to act. Reforms have been put on hold and deadlines missed. Cauchon's amendments are expected to be a shadow of what was proposed.

Frustrated by the foot-dragging, Calgary lawyer Gerald Chipeur this week filed a lawsuit in federal court with the intent of challenging the Divorce Act on charter grounds.

Although it wouldn't be the first time the courts have been used to settle an issue Ottawa considered too hot to handle, it's not the preferred route. Voters can turf out politicians who pass bad laws. They have no recourse when judges "read in" policy.

Canadian courts don't have the best track record on custody fairness, anyway. They've been quick to enforce maintenance payment orders, but slow to enforce orders granting fathers access to their kids.

Trusting the future of Canadian children to judicial whim is an unnecessary gamble. Public opinion is solidly behind shared parenting, as is the Canadian Bar Association, which represents 36,000 lawyers.

The only dissenters are women's groups who want to preserve their upper hand. Their objections -- that children and women would be exposed to violence -- don't stand up. Joint custody would be denied to abusive or unfit parents. Where both are willing and able to parent, however, it is best for the children that they be allowed to do so.

Cauchon should not be so cowed by squeaky feminist wheels. He should put the needs of children first and make substantive reforms to the Divorce Act, knowing the majority of Canadians support them. The alternative court battle is expensive, risky and an abdication of leadership.

There's still time for Cauchon to do the right thing.

© Copyright 2002 Calgary Herald