The Special Joint Committee A Threat to Women's







70 to 80 per cent of divorcing mothers and fathers come to a mutual agreement that the mother will continue to be the primary caregiver following divorce without resorting

to the courts. In most cases this continues the parenting arrangement that was in place prior to the separation. A week before the Committee filed its report, Ann

Cools called for the resignation of the Honourable Hedy Fry, Secretary of state for the Status of women, following the publication of a Globe and Mail article in which Fry

expressed her reservations about the tactics of some Committee members ("Face-Off Over Child Access").

One Ottawa Citizen headline read that Fry had been accused of "sabotage" for publicly speaking out to set straight the record on women (Cobb). Countless letters to

the editor and opinion pieces, written by the National Association of Women and the Law (NAWL) and other women's organizations, were repeatedly refused publication by editors of the major Canadian newspaper When Michele Landsberg, a feminist columnist for

The Toronto Star, exposed the bias of the Committee in her column, Ann Cools threatened her with a charge of contempt of Parliament ("Face-Off Over Child Access").

It was no surprise, given the poisoned process of the Committee, that its report is toxic to women's rights.


The hearings and media coverage of the Special Joint Committee on Custody and Access painted a frightening and false picture of the state of custody and access in this

country and of women's behaviour towards men. The public was led to believe by both the Committee and the mainstream media that most divorced and separated families in Canada are tangled in a web of endless wrangling over the children with hoards of distraught fathers weeping on their "callous ex's" doorsteps. The fact that most

divorcing couples work out custody and access issues without going to court and after the first year or so of sorting out the details, settle into a workable arrangement

is not mentioned in the Report.


This is remarkable considering that easily-accessible Department of Justice statistics reveal that only 3.8 per cent of all custody and access cases are resolved through the courts and only about five per cent of those cases ever proceed to the trial stage

(Department of Justice).


At the time of the Report's release, Penni Mitchell, in a column for The Winnipeg Free Press, summed up the implications of this report for women and their children

very well.


"The Joint Committee on Child Custody and Access' final report will turn Canada's Divorce Act into a tool for chaos for women and children in high-conflict families" (Mitchell).


The most debilitating aspect of the Committee workings and its report is the abject failure to address the issue of violence against women.



The Report proposes eliminating the terms "custody" and "access"

and replacing them with a form of mandatory joint custody called

"shared parenting." This concept is not well-defined in the Report but it implies that parents "share" equal authority over children without necessarily "sharing" equal day-to-day responsibility, for children. The terms of shared parenting would be outlined in "parenting plans" which parents would be required to present as the basis of "parenting orders," a replacement for custody orders. These "parenting plans" would be developed after educational classes that would teach the benefits of shared parenting. Those who could not easily work out "good parenting" plans would be sent to mandatory mediation.


The fulcrum of the Report is a list of criteria that would be used determine "the best interests of the child." Preference would be given to parents who favour shared parenting; to those who are most willing to encourage a close and continuous relationships between the child and the other parent; to those most willing to attend mediation

and educational sessions; and to those best able to provide the necessities of life to the child. Any notion that mothers are superior caregivers would be against the best interests

of the child (Mitchell).


In an analysis prepared for NAWL, family law practitioner  Carole Curtis points out that the language used to describe post-separation child-care arrangements (from "custody

and access" to "shared parenting") will not result in a shift of long-ingrained historical and social patterns of care-giving. Worse, it will encourage court disputes in those high-conflict families where parents look for every opportunity to do battle. Curtis points out that the existence of the Joint Committee report is already creating confusion, in that some lawyers and clients think the suggestions in the are already the law (Curtis).


The area of custody and access is a complicated one, and the consequence of changes to the law profound. Policy-making in the area of custody and access law must be evidence-based, following a careful analysis of existing data, not merely the anecdotal summaries of "town-hall" meetings. The bibliography in the Report refers only to the material that was presented to the Committee by witnesses and other presenters. There is a very large, constantly growing, and sophisticated body of literature regarding custody and access which was entirely ignored by the Committee. Custody and access is the subject of scholarship by experts, both academics and practitioners, from many

different and highly skilled disciplines: mental health professionals (both clinicians and academics, including social workers, psychologists, psychiatrists) and professionals in the family law system (judges, lawyers).


There are many new articles published every month about custody and access. This Committee made no effort to examine even the available research. Nor did the Committee commission any research on the area, which should also be used to inform any policy-making with consequences of this magnitude. This, sadly, is an opportunity missed.


The most disturbing aspect of the Committee workings and its report is the abject failure to address the issue of violence against women. Wife assault and sexual abuse of children in families is a disturbing and widespread occurrence in Canada (Rodgers)


The demand for services for assaulted women and their children leaving abusive relationships continues to grow. The number of children disclosing sexual abuse is also increasing. Yet the Report on custody and access is almost entirely silent on the two most

detrimental and significant issues facing Canadian children.


Only inferentially does the Report deal with either of these very serious issues, by referring to the incidence of "false reporting." By doing so, the Report seemingly denies the

existence of wife assault and sexual abuse of children. Women's groups have worked tirelessly for years to ensure that the occurrence of violence against women in

relationships, and the incidence of sexual abuse of children in the homes by their father or their mother's partner is brought to the attention of and, acted upon, by all governments in Canada. Courts simply cannot assume that women and children are safe after separation. In fact, the data is overwhelming that violence in the home escalates when a man fears that he will lose his wife or partner. Tragically, this is the point at which women are

most often killed by their spouses and partners (Crawford and Gartner).


The Report also completely ignores contemporary evidence that processes such as mediation are not suited to parties where violence is present (Goundxy

et al.) and recommends mandatory mediation as a first step in working

out parenting plans. The Report recommends that the Divorce Act be amended to state that divorced parents and their children "are entitled to a close and continuous

relationship with one another," a clause that could force children who have been abused into regular contact with their abusers.


A woman could face the impossible choice of handing over children to an abusive parent or having to face criminal sanctions for defying a court order. There is no recognition that violence witnessed or experienced by children should be a factor in determining custody. Women reporting abuse could be jailed for making "false allegations" and could be deemed "unfriendly" parents for not wanting to maximize contact with the other parent. Women who flee the family home "without suitable arrangements for contact between the child and the other parent" could be seen as acting contrary to the best interests of the child.


There is no recognition that in cases of wife or child abuse, including sexual abuse, no access by an offending parent would sometimes be in the child's best interests.

The recommendations in the Report call for a review of the Child Support Guidelines to reflect the thrust of the Committee's new approach and language brings the process

full circle and perhaps reveals the real motivation behind the fathers' rights groups. Would the new concept of "shared parenting" completely exempt either parent from

paying child support? That could be one implication of adopting the "shared parenting" scheme that is suggested.


The report certainly hints that non-custodial parents who have children in subsequent relationships might be able to opt out of the new support guidelines. It is also clear that

any expenses related to facilitating contact between a parent and child would be deducted from support payments. Which brings us right back to why the Committee was struck in the first place-an attempt by some non-custodial fathers to resist the newly-proposed

Child Support Guidelines.


In May 1999, Justice Minister Anne McLellan formally responded to the Report of the Joint Committee on Custody and Access. While she did not commit to acting on its

recommendations neither did she condemn them. She instead called for a three-year period of consultation before proceeding with reforms of the Divorce Act. Women

and women's groups will have to fight hard during this period to resist the changes put forward by the Joint Committee which have garnered some significant public

support. The Committee's workings, the media support for anti-woman sentiments expressed by members of the Committee, and the failure of other Committee members

to stand up for women's rights, all signal the danger presented by the increasingly organized father's rights movement. These men are feeling strengthened by the

support they received by the members of the Special Joint Committee on Custody and Access and they will escalate their political challenges. Some fathers' rights groups are

threatening to launch a Charter challenge against the Women's Program at Status of Women Canada which funds equality-seeking projects. Recently they have also

laid a complaint against Madame Justice Claire L'Heureux- Dube for her Supreme Court judgment in R. v. Ewanchuck where she clearly articulated that when it comes to sexual  assault "no means no." In other times these challenges might be laughable. However, given the inroads made by fathers' rights groups on custody and access who knows

where these threats will go.


One point is made very clear by this political exercise: women's equality rights cannot be taken for granted as we enter the next millennium.


The author wishes to acknowledge the work of many women who have worked hard with NAWL on the issue of women rights in the Divorce Art, particularly, Carole Curtis, Penni Mitchell, Michele Landsberg, and Louise Shaughnessy, whose work forms the basis of this article.


Bonnie Diamond is currently the executive director of the

National Association of Women and the Law (NAWL).

Formerly she was the executive director of the Canadian Elizabeth Fry

Societies, the co-chair of the Task Force on Federally Sentenced

Women which called  for the closing of Prison for Women, and

director of research for the Canadian