Viewpoint—For the sake of the children

 

“It is better to believe than to disbelieve; in doing you bring everything to the realm of possibility.”
Albert Einstein

By the 1980’s, those who were in the system and in the divorce courts were aware that a divorce settlement had nothing to do with fairness or justice.

In spite of 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.” ( QC Bruce Haines)

For over 30 years, the norm has been that one parent has been fighting for regular access to his/her children. Thousands of grandparents have signed petitions that asked Parliament to grant them standing in the court simply to ask for access to their grandchildren at such a difficult time. Grandparents understood that a divorce could possibly be very upsetting for children who thought they might be to blame for mom and dad getting a divorce and could provide needed love and reassurance at this uncertain time.

The non-custodial parent sometimes was subject to unethical practice in divorce proceedings. Due process of law, which in criminal law is considered a necessity, was not always followed in the divorce proceedings. This meant that the non-custodial parent’s rights under the Charter of Rights and Freedoms appear to have been denied.

Divorce proceedings do not belong in an adversarial process, where certain court decisions can do irreparable harm to the family and mean children can lose a parent forever. Why has it taken so long for the courts to acknowledge that divorce requires third-party mediation or an alternative dispute resolution mechanism when developing child access?

The past 30 years have been marred by the fact that many non-custodial parents, usually fathers, were penalized in the courts financially, and drained emotionally, with a resultant loss of self-respect. They may suffer depression and other issues and wonder where to turn next or even whether to go on. They’ve lost access to their children; the future is empty.

For a long time, non-custodial parents asked for the Divorce Act to be changed, for the government to look closely at access and custody, to open the door and hear from the victims. Grandparents have been lobbying their MP’s to change the Divorce Act and to recognize grandparents as necessary members of the family.

Committee established in 1997

When the government of the day in Dec. 1997 set up the Special Joint Committee on Child Custody and Access, which consisted of 23 Senators and Members of the House of Commons, this was a very positive step. This Committee was appointed to examine and analyze issues relating to custody and access arrangements after separation and divorce. In particular, its role was to assess the need for a more child-centered approach to family law policies and practices that would emphasis joint parental responsibilities and child-focused parenting arrangements, based on the “needs and best interests” of children.

Report delivered in 1998

After 12 months of open meetings across Canada, the Joint Committee in 1998 presented its report, For the Sake of the Children, which included 48 recommendations to amend the Divorce Act. The people of Canada had spoken directly to their elected representatives, and those members of the House of Commons and the Senate had acted on their testimony, listened, made decisions, and published a Report not only declaring those decisions but explaining each recommendation for Canadians to read. These Canadians actually took part in a direct democratic process. The public hearing process had reflected the nature of the subject matter. Custody and access following divorce was a very important and highly emotional issue; the number of people who had attended the hearings in every centre confirmed this.

This should not have come as a surprise to the Committee members. Thousands of petition names over the previous 10 years, and the presentation of private members’ bills to address grandparents’ and non-custodial parent’s rights should have sent alarm bells through the House of Commons. Custody and access abuse over those years had been the cause of serious distress in many Canadian families. At last, it appeared that the government cared and was about to make legislation. Although they could not erase past tragedies, they could change the future.

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