The Lawyers Weekly, Vol. 24, No. 8, June 25, 2004

Conservative victory likely to affect government's approach to family law

By Cristin Schmitz


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Family law practitioners can anticipate substantially different child custody legislative reforms if the federal Conservatives, rather than the Liberals, form the government next week.


While the incumbent Liberals have repeated a pledge to jettison the familiar touchstones of “custody,” “access” and the “maximum contact principle” in favour of a “parental responsibilities” regime adapted from similar laws in England, Australia and some parts of the United States, the former Canadian Alliance and Progressive Conservative candidates running under the banner of the new Conservative Party are on record as wishing to enshrine a presumption of automatic shared parenting in the Divorce Act.


The Conservatives’ election platform waxes eloquent on their promise to protect the “traditional” definition of marriage, but it is notably silent on the equally hot-button issue of divorce reform.


However, the new party’s future leanings might be divined from its recent past.


In 2002, the Canadian Alliance, backed by fathers’ rights groups, was amongst the most vociferous critics of the now-moribund Bill C-22 — the Liberals’ controversial, failed attempt to overhaul the child custody provisions of the Divorce Act.


Bill C-22 aimed to reduce the acrimony associated with divorce by de-emphasizing parental rights and power struggles. Instead, it shifted the focus squarely onto the child by “unpacking” or “unbundling” the long list of parental responsibilities that are the hallmarks of custody and access, and sharing those duties between the parents, or assigning them to one or the other parent.


The Canadian Alliance denounced C-22, arguing that the proposed amendments would do little to change the anti-male bias, and “win-lose” mentality which they believed prevails in custody disputes.


Jay Hill, Official Opposition critic on child custody reform, argued for “maximum contact with both parents” while slamming C-22 as “regressive.”


“I’m pushing for equality —both parents should have equal rights and equal access to their child,” Hill said. “The courts seem to start from the premise that somehow fathers aren’t responsible parents. But both parents are deemed good parents as long as the marriage lasts; why are they not when the marriage ends?”


“The courts seem to start from the premise that somehow fathers aren’t responsible parents. But both parents are deemed good parents as long as the marriage lasts, why are they not when the marriage ends?”


Hill had proposed a private member’s bill that would enact a “shared parenting” presumption in the Divorce Act, mandating that both spouses get custody unless there was evidence it would not be in the child’s best interests, for example in cases of abuse or neglect.


The Canadian Alliance and the PCs are both on record as supporting the 1998 recommendations of the Special Joint Senate/House of Commons Committee on Child Custody and Access, contained in the joint committee’s report “For The Sake of the Children.” 


Among its 48 recommendations, the committee urged that the terms “custody” and “access” be scrapped to be replaced by the term “shared parenting” and that in almost all cases both parents would continue to exercise their pre-separation decision-making roles with respect to their children. All shared-parenting orders would have to be in the form of mandatory “parenting plans” that set out the details of parental responsibilities for residence, care, decision-making and financial security for the children, together with a dispute-resolution process for the parents.


Reached on the campaign trail in northern B.C., Hill told The Lawyers Weekly the party has not yet had time to hammer out its divorce reform policy.


But he said if the Conservatives form a government, any changes to the Divorce Act would differ significantly from C-22. The Liberals “don’t want to be definitive that there is equal standing of both parents in the eyes of the court at the time of divorce, and that’s a fundamental flaw in the existing Divorce Act and it’s a fundamental flaw in C-22,” he contended.


“We want some sort of a format that would direct judges, when they are ruling on divorce, to start from the premise that both parents are ‘good parents’ and that they both have equal standing and that the children. . .deserve access to both parents equally."


Last February, Justice Minister Irwin Cotler told The Lawyers Weekly that a new Martin government would reintroduce extensive custody and access amendments very similar to those in C-22, the Chretien-era legislation that died last November when Parliament prorogued.