May 11, 1999
Ottawa buries plan for equal parenting rights Groups slam response: Minister wants more consultation before changing custody law
Sheldon Alberts and Richard Foot
Shared-parenting groups are threatening to campaign to defeat Anne McLellan, the Justice Minister, in the next election because of her decision to postpone for three years controversial amendments to Canada's child custody laws that could give divorcing mothers and fathers equal rights.
Ms. McLellan yesterday announced Ottawa's strategy to reform the Divorce Act by replacing the concepts of sole custody of and access to children by one parent with "child-centred" rules that strengthen the roles of both parents.
But she effectively delayed the introduction of legislation until May, 2002 -- or possibly later -- by launching a new round of public consultations on the government's plans.
"This is a lovely, warm, and fuzzy (strategy) with no teeth and no commitment. We do not need another report," said Heidi Nabert, president of the National Shared Parenting Association. "If the elected officials here in Ottawa don't take notice . . . I am going to suggest they are not going to be here in three years."
Members of grassroots parents groups across the country said the Liberal government is simply unwilling to change the divorce law before the next federal election, partly for fear of angering feminist groups opposed to giving fathers and non-custodial relatives new rights.
"They've decided not to put their political butts on the line, instead of looking out for the interests of thousands of children in this country," said Mike LaBerge, president of the Calgary chapter of the Equitable Child Maintenance and Access Society.
The disappointment of such groups follows several days of anticipation that the government would quickly adopt recommendations from a Senate-Commons committee that demanded dramatic reforms to the Divorce Act.
Fathers' rights groups complained that the current laws allow custodial parents, most often mothers, to effectively prevent fathers and paternal grandparents from having a role in their child's rearing.
After hearing from 500 witnesses during two years of emotional and often adversarial hearings, the committee endorsed the legal concept of "shared parenting," which would give mothers and fathers equal rights after divorce.
Ms. McLellan's strategy backs a "less adversarial approach" in family law that replaces the terms "custody" and "access" with "clearly defined" language that promotes involvement by both parents.
The government plans to shift family law away from "outdated concepts of child 'ownership' " but it does not explicitly endorse the term "shared parenting."
"We don't want to talk about rights. We don't want to talk about proprietary concepts like custody. We want to talk about values like shared responsibility," she said.
Some reformists commended Ms. McLellan yesterday for at least recognizing the concept of shared parenting. Melynda Jarrat of the New Brunswick Shared Parenting Association also applauded the government's endorsement of a proposal to allow children an independent representative in custody proceedings. But Ms. Jarrat said there is no good reason for further public consultation.
"Many families cried and bared their souls on that committee floor," she said. "I'm sure they're very disappointed by this delay. We've had three phone calls already this afternoon from fathers and mothers trying to see their children. It's just a bunch of malarkey to delay this thing another three years."
Florence Knight, of the Alberta branch of the Canadian Grandparents Rights Association, said changes to the divorce laws should be enacted now, to prevent the kind of teenage violence that erupted in the school shootings in Colorado and Taber, Alta.
"Kids out there need to be rooted, to have contact with both parents," she said. "All this violence in the schools, I'm just shocked that Minister McLellan can't see the light. She's shirking her responsibility."
Karen Selick, a family lawyer in Belleville, Ont., said that while reforms dealing with shared parenting would be welcome, a delay won't "make much difference." The legal atmosphere of divorce and custody cases is changing without new legislation, she said.
"Men have become a lot more assertive about seeking custody, at least joint custody or generous visiting rights," she said. "And the public mood about such things has changed. But something from the government would still be helpful."
The justice minister said Ottawa cannot immediately proceed with legislation because the federal government shares jurisdiction over child custody and access laws with the provinces. While Ottawa's bill covers custody in divorce cases, provincial laws hold sway in cases where parents are separated or were never married.
"We don't want to get into a situation where we pre-emptively and prematurely would amend the Divorce Act, thereby unwittingly create a situation where we have one set of language in the Divorce Act and another set of language for those who separate pending divorce, or those who were never married in the first place," Ms. McLellan said.
"What we want to do if possible is make sure that when we change the law, we all change it together."
Ottawa is also linking public debate on its custody strategy with a mandated five-year review of federal child support laws, which is not due until spring of 2002.
A federal election is expected as early as 2001, putting actual legislation in jeopardy if there's a new Liberal leader, or a new government elected at the time.
Danny Guspie, executive director of National Shared Parenting Association in Toronto, called on supporters to launch a massive phone, fax, and e-mail campaign to the prime minister, to voice their displeasure. And he vowed to make Ms. McLellan a particular target, noting she only won her Edmonton seat by 1,100 votes.
"I think she is really staking her political future by coming out with a response like this," Mr. Guspie said. "A thousand votes is a pretty shaky majority to hold your seat by. I think that if we don't see some action on this that Minister McLellan is not going to be returning to Parliament."
Ms. McLellan also came under fire -- although somewhat friendlier -- from Liberal members of the Commons-Senate committee.
MP Roger Gallaway, committee co-chair, said he was pleased with the content of the government response, but complained that thousands more children and parents will suffer during the delay.
"Three years is a long time and there is a lot of people out there who are really hurting and three years is not acceptable to them," he said.
Senator Anne Cools, another outspoken advocate of increased children's rights, said "there is no excuse" for further delay. If the Liberals wait until 2002, "we'll be gone by then. It'll be a new government in charge," she said.
Ms. McLellan protested that the three-year deadline for completing the review "doesn't necessarily mean that it will take three years."
She promised the government will also consider beefing up Criminal Code penalties to discourage false accusations of abuse that are sometimes made during custody battles. The government will also consider, when detailing guiding principles to child custody in any legislation, spelling out a specific role for grandparents, she said.
Jay Hill, the Reform critic on divorce issues, worried that legislation will actually be delayed in excess of three years because the government will need time to draft a bill following the public consultations. "It is going to take . . . a minimum of three years before this minister does anything more than talk," he said.
But Bonnie Diamond, executive director for the National Association of Women and the Law, applauded Ms. McLellan's approach.
"We're very heartened that she's moved it away from an emotional debate to a rational discussion."
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May 7, 1999
Divorce law changes find favour with many Increased rights for Dads
OTTAWA - Father and grandparent groups are ecstatic -- but a little cautious -- at the prospect of the federal government changing Canada's divorce law.
"I'm thrilled," said Joan Brooks, a grandparent activist, yesterday. "I hope it comes soon so another person won't have to die without being allowed to say goodbye to their grandchildren."
The federal cabinet has approved a set of controversial recommendations from a parliamentary committee that could give mothers and fathers the legal right to equal roles in raising their children -- and also allow grandparents to apply for access.
Of the grandparents denied access to their grandchildren, said Ms. Brooks, 70% are paternal grandparents.
Anne McLellan, the Justice Minister, will release a plan Monday that is expected to lead to changes in three child-related areas of the 30-year-old Divorce Act: custody, access, and support payments.
According to opinion polls, an overwhelming number of Canadians favour increased rights for fathers who want to be involved in the raising of their children. Support is particularly high among younger adults, many of whom are children of divorced parents, and in one survey was as high as 97%.
Danny Guspie, president of the national group Shared Parenting, said yesterday the cabinet's approval of the committee's recommendations is encouraging.
"A lot of people would prefer it happen tomorrow so they can stop paying lawyers," said Mr. Guspie.
"It's excellent news and long overdue, but we recognize that this is the beginning of another political process. The next part is likely to be a struggle, but we intend to see it through."
The joint Senate-Commons Committee on Joint Child Custody and Access, co-chaired by Senator Landon Pearson and MP Roger Gallaway, proved a catalyst for dozens of groups and individuals from coast to coast who appealed for changes to custody and access laws.
"It created a critical political mass that didn't exist before," said Mr. Guspie, "and the government is now hearing the message loud and clear."
The Pearson-Gallaway committee held several months of hearings across Canada. It became known as the Politically Incorrect Committee because of its willingness to hear testimony from men, grandparents, and second wives who claim the existing law is unfair to non-custodial parents -- usually fathers.
Women's shelters and other feminist groups claimed the committee was biased, causing Mr. Gallaway to issue an angry denial and release figures that showed the committee heard from more women's groups.
The report, For the Sake of the Children, said if judges were bound to grant shared parenting rights in disputed divorce, it would eliminate most of the long, drawn-out acrimony that embitters, and often bankrupts, non-custodial parents.
If the committee's concept of shared parenting becomes law, it would not necessarily mean a 50-50 living arrangement, but the law would give both parents an equal say over their child's upbringing.
Nor would one parent be able to deny another access to a son or daughter's medical or school records, as often happens now.
The committee also said that custodial parents who routinely deny legal access to their former spouse should be punished. The law penalizes parents who fail to pay support, but there are no similar provisions to penalize custodial parents who defy court-ordered access.
Sean Cummings, director of Nova Scotia Shared Parenting, said the federal government should craft new law that marginalizes the divorce court system.
"Otherwise, we're no further ahead," he said. "I hope Ms. McLellan makes it clear that shared parenting isn't just a fuzzy concept but an achievable goal that is in the best interests of children."
Mr. Cummings' group is about to start its first community-based dispute resolution session that will last 15 weeks and is aimed at getting divorcing parents to develop a plan for their children outside the court system.
"We want to teach people to co-parent and keep them as far away from the courts as possible," said Mr. Cummings. "It's better for everyone and certainly in the best interests of the children."
Liberal Senator Anne Cools, who was a prime mover in setting up the joint committee, said yesterday that shared parenting "is an idea whose time has come."
"I'm encouraged," she said, "and hope the process doesn't take too long. My new motto is: Two Parents for 2000."
Other recommendations in report include:
- Elimination of supervised visitation without clear evidence of violence.
- Mandatory 90-day notice if one parent wishes to move a significant distance from the other.
- If one parent moves, an adjustment in support payments, if necessary, to allow the other parent to travel to visit the children or have children visit.
"Children do not ask their parents to divorce," said the report. "What they did speak about was the disruption in their lives and the severe emotional distress that accompanied their parents."
May 6th, 1999
Ottawa set to rewrite custody, access law
Cabinet approves proposal to give equal parenting rights after divorce
Chris Cobb Ottawa Citizen
OTTAWA - The federal cabinet has approved controversial proposals to reform Canada's divorce law, a move that could give divorcing mothers and fathers the legal right to an equal role in raising their children.
Anne McLellan, the Justice Minister, plans to begin a process on Monday aimed at changing three areas of the law affecting children: custody, access, and support payments.
Ms. McLellan will be officially responding to recommendations by the joint Senate-Commons committee -- dubbed the Politically Incorrect Committee in some quarters -- that reported to Parliament in December after months of emotionally charged, often tearful hearings across Canada.
The cornerstone of the committee's recommendations is shared parenting, a new legal concept that would give mothers and fathers equal parenting rights after divorce.
Liberal Senator Landon Pearson and Liberal MP Roger Gallaway, the committee co-chairs, said the report's 48 recommendations are designed to reduce the impact of separation and divorce on children.
The Pearson-Gallaway committee held months of hearings during which fathers, grandparents, and second wives appealed for equality in a system they said allows custodial parents -- usually mothers -- to defy access orders and effectively lock fathers and other relatives out of the lives of children.
The report, For the Sake of the Children, said the terms custody and access should be eliminated from law and replaced with "shared parenting." It said judges should be bound to grant shared-parenting rights unless there is clear evidence of abuse of one parent by another or of children by a parent.
Shared parenting would give mothers and fathers the rights of custodial parents and, said the committee's report, help eliminate many of the custody battles that leave deep emotional scars and routinely cost divorcing parents tens of thousands of dollars in legal fees.
If shared parenting becomes part of Canadian law, it will put the onus on courts to make orders regarding children more specific and enable police to enforce those orders.
The child's living arrangement would not necessarily be 50-50, but both parents would have equal say over their child's upbringing and one parent would not be able to deny the other access to school or medical information, a common complaint among non-custodial parents.
Parents who agree on a shared-parenting plan without legal intervention would not be affected. About 80% of divorcing couples (almost 80,000 a year) fall into this category.
The report said this would also equalize a system that punishes parents -- usually fathers -- who default on support payments but not parents who routinely deny legal access to the children.
The committee was the target of feminist groups and women's shelters that accused members of pro-male bias -- a charge vehemently denied by Mr. Gallaway.
Ms. McLellan's decision to go beyond the committee's recommendations on custody and access and to include support payments in the mix is especially significant.
The Pearson-Gallaway committee suggested changes that would tighten the link between support payments and the enforcement of access orders. It also supported adjustments in support if, for example, the parent receiving support becomes significantly better off financially than the parent paying.
Ms. McLellan's response is likely to emphasize changing the law in co-operation with the provinces, which have jurisdiction over some aspects of divorce.
Other recommendations by the Pearson-Gallaway committee included:
- Elimination of supervised visitation without clear evidence of violence.
- Mandatory 90-day notice if one parent wishes to move a significant distance from the other.
- If one parent moves, an adjustment in support payments -- if necessary -- to allow the other parent to travel to visit the children or have children visit.
- End the right of one parent to deny the other access to their child's school or medical records.
- Giving extended family members, especially grandparents, the right to ask a court for access to children.
"Children do not ask their parents to divorce," said the report. "The committee heard testimony from children across Canada, none of whom said divorce was a good thing. What they did speak about was the disruption in their lives and the severe emotional distress that accompanied their parents.
"When parents divorce, children are left with a new set of worries and fears about what will happen to them. Children are not prepared for these worries and fears and they tend to struggle with them on their own. Children testified that they felt left out of proceedings that would determine the arrangements for their daily lives for many years to come. Many lawyers and mental health professionals supported the idea that children need a voice in divorce proceedings."