National Post

Monday, December 02, 2002

Race may play role in child custody cases

Guidelines to be issued as part of new Divorce Act

Janice Tibbetts
Southam News
National Post

OTTAWA - The federal government plans to give judges across Canada their first-ever list of criteria to follow when settling child custody disputes, including the race of the parents and whether they have ever been violent.

Sources say the new list will be included in long-anticipated changes to the Divorce Act, which Martin Cauchon, the Justice Minister, will table in the House of Commons next week.

While the final decision remains with the judge, the criteria effectively could make it harder for a parent who has ever displayed violence to have access to his or her children.

Also, a mixed-race child might end up spending more time with a parent who is considered to be in the best position to provide cultural education.

The divorce proposals are part of a wider children's agenda that Mr. Cauchon will roll out before Christmas, beginning this week with an omnibus bill that will stiffen penalties for crimes against children and legislation next week to force convicted sex offenders to register with police when they leave jail.

As it stands, the Divorce Act stipulates only that a judge consider the best interests of the child when settling custody disputes, but it does not set out specific criteria.

The directive to consider whether a parent has ever been violent is considered by the government to be a key element of the proposed list.

"The factors aren't spelled out to the extent to which they're going to be spelled out," said a source. "This makes the judge turn their mind to whether family violence exists. It goes further than what we have now."

The Divorce Act changes have already received approval from the federal cabinet.

"Is it going to dramatically change child custody?" asked the source. "I don't know the answer to that because it's always up to a judge." The list will also include less controversial factors, such as the child's relationship with each parent.

Mr. Cauchon also intends to eliminate the terms "custody" and "access" from divorce laws on the grounds they are too adversarial. They will be replaced with a more neutral term that implies joint-parental responsibility.

Improved counselling programs for divorced parents are to go hand in hand with the changes to the act.

The changes are bound to infuriate advocacy groups representing non-custodial parents -- usually fathers.

They contend anything short of legislating automatic shared parenting will still give judges too much power to continue awarding custody to mothers in the majority of cases.

"People are going to be upset and disgusted," said Brian Johnson, a divorced father with the Regina Shared Parenting Network.

Later this week, likely on Thursday, Mr. Cauchon will table a separate bill dealing with crimes against children.

The omnibus legislation will have several components, including a measure to make it harder for people who possess child pornography to claim it is legal because it has artistic merit.

The controversial defence came under fire last March when John Robin Sharpe, Canada's most notorious collector of child pornography, was cleared of possession charges on the grounds his graphic and violent stories, entitled Kiddie Kink Classics, were found to have artistic merit.

The Criminal Code offence will be narrowed, but not entirely eliminated because of fears a complete ban could violate the Charter of Rights and Freedoms guarantee to freedom of expression.

The omnibus bill will also create a new offence of criminal voyeurism, to combat electronic-age peeping toms who have abandoned keyholes in favour of high-tech devices such as tiny video cameras.

Police lobbied for the change, arguing ancient offences such as trespassing by night and mischief were never designed for electronic invasions of sexual privacy.

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