Viewpoint—Efforts to change

In the depths of winter I finally learned there was in me an invincible summer. Albert Camus

Words of wisdom on family law

When these issues were being studied by the Senate and House of Commons Joint Committee in shared custody1997/98,  Toronto lawyer Bruce Haines, Q.C., wrote an open letter to Senators during the debates regarding divorce, child custody, and access.

“Dear Senators:
For over 30 years I have practiced family law in Ontario and during that time have watched the development of the law, and the dramatically changed social conditions which have not only seen a very high percentage of married women move into the work force in most every area, but have also seen a significant narrowing of the income differentials between men and women. During that time I have watched spousal social expectations change in that husbands have embraced a full participation in the nurturing and raising of their children.

“Changes to the divorce law have rarely kept pace with changing attitudes and, despite the gender neutral language of the Divorce Act, its actual implementation in the areas of child custody and child support have continued to be marked by an entrenched systemic gender bias that mother knows best, father pays best.

“The administration of justice does not treat spouses equally when it comes to assigning child custody. By and large, custody is almost always assigned to mothers and the most fathers can hope for is a generous access order. Where fathers interfere with custody orders, they will ordinarily bear the full weight of the law while mothers who flaunt access orders will, by and large, receive judicial admonitions with very little other consequence.

“Section 16(10) of the Divorce Act requires courts to take into consideration the willingness of the person for whom custody is sought to facilitate contact of the child with each spouse. Practicing family law lawyers know that this section is almost never invoked.”

Need for change

Bruce Haines not only understood how Canada’s families were affected by divorce, but he also explained the problems with extreme accuracy, as well as the need for change. Non-custodial parents (and grandparents) caught in the divorce backlash understood, often had first-hand experience, and could see the problems in close-up.

This truth from Mr. Haines is still applicable even today, in situations where there is a single custodial parent and victimization occurs. Although the laws in some provinces recognize the value of shared parenting and custody more widely today, across the nation there is much variation between provinces and courts.

When these issues were first addressed by the Joint Parliamentary Committee, individuals showed their concern by creating petitions, backed by thousands of signatures, asking the House of Commons to recognize the reality. The reality was that in some cases, family members were being victimized by the custodial parent. This affected the welfare of the children and continuing relationships within the family. It also affected the health and well-being of the non-custodial parent (typically the father). Although non-custodial mothers could also suffer from the custodial parent’s actions and be victimized, mothers were considered to be in the minority on the receiving end in this situation.

At this time, many MP’s from all parties presented from their constituents’ grandparent petitions before the House (1994/95/96). These petitions asked that Parliament pass legislation giving grandparents standing in the courts, and the right to speak in the court to ask for continued access to their grandchildren after the divorce. The subsequent Grandparents Bill was non-partisan. In the debate, the argument was often made in favour of a more conciliatory approach to divorce, a mediation process that would avoid the adversarial courtroom atmosphere where families caught in divorce are attacked and humiliated. It was widely recognized that change was needed.

The alternative to sole custody

The necessity for change was noted by various concerned MPs. In particular, MP Keith Martin put it all in context:

“Parents contemplating divorce should engage in an alternative dispute resolution mechanism when developing child access, financial arrangements, parenting plans, etc. Also, reconciliation law is a new process that is more constructive in divorce proceedings and leads to fewer people ultimately divorcing. It should be more available.”

He went on to comment:

“Non-custodial parents should be eligible for a tax write-off equal to half the spousal deduction. Children must have a constant and meaningful relationship with both parents. Non-custodial parents may seek an enforcement order when access to their children is deliberately and maliciously impeded. All warrants for child abductors must have a national reach. False accusations of abuse or deliberate, unwarranted efforts to prevent one parent’s access to their children should be subject to penalties. Extended family; i.e. grandparents, siblings, must be included in the parenting plan where appropriate.

“In the end, a just divorce system must first benefit the children, and second, be fair to both parents. It must reduce the risks inherent to the children of divorce, protect a child’s right to equal parenting, eliminate the impoverishment of non-custodial parents and eradicate gender bias of process.

“If we accomplish this we will be serving not only our children but also our society as a whole.”