NOT IN THE BEST INTERESTS OF WOMEN AND CHILDREN: An Analysis of Bill 422: An Act to Amend the Divorce Act

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NOT IN THE BEST INTERESTS OF WOMEN AND CHILDREN: An Analysis of Bill 422: An Act to Amend the Divorce Act By Pamela Cross, National Association of Women and the Law 1 Introduction: On June 16, 2009, Saskatoon-Wanuskawin
NOT IN THE BEST INTERESTS OF WOMEN AND CHILDREN: An Analysis of Bill 422: An Act to Amend the Divorce Act By Pamela Cross, National Association of Women and the Law 1 Introduction: On June 16, 2009, Saskatoon-Wanuskawin Conservative Party MP Maurice Vellacott introduced Bill C-422 to the House of Commons. This Bill is the latest incarnation of a series of Bills, Motions and other legal and political maneouvrings that have attempted to eliminate the concepts of custody and access from the federal Divorce Act in favour of a presumption in favour of equal parenting. Mr. Vellacott s Bill may appear laudable to the general public, especially on a first read -- after all, who does not like the notion of children spending time with both parents? However, on closer examination, it becomes clear that Bill C-422 at best ignores and at worst denies many of the realities of families in this country. For this reason, the National Association of Women and the Law and many other women s equality-seeking organizations oppose Bill C-422 just as we have opposed similar Bills and Motions in the past. Bill C-422 purports to do four things: to clarify that Parliament recognizes that society has an interest in ensuring that children do not lose either parent unnecessarily, and to move away from the model of custody to the model of parenting time to define best interests of the child as served by maximal ongoing involvement by both parents with the child, to be implemented in the Divorce Act, as the rebuttable presumption of equal parenting as the starting point for judicial deliberations to clarify relocation determinations as recognizing the right of the child to continuity of relationships with both parents and placing the onus on the parent moving to justify a change to a parenting time agreement to require the systematic collection of consistent court statistics 2. 1 This analysis draws heavily on research conducted by the Ontario Women s Network on Custody and Access for its Brief to the Federal Provincial Territorial Family Law Committee on Custody and Access, June 2001, which was co-authored by Andree Cote, Pamela Cross, Carole Curtis and Eileen Morrow 2 Backgrounder for Equal Parenting Private Member s Bill C-422, Maurice Vellacott, June The analysis and recommendations that follow focus on the first two of these stated objectives. Background: Bill C-422 did not appear from nowhere when it was introduced by Mr. Vellacott earlier this year. Since 1997, there has been a veritable flurry of consultations, special committees, government and private members bills and public discourse, often led or heavily influenced by an increasingly powerful fathers rights lobby. The Fathers Rights Lobby This special interests constituency became extremely active in 1997, in response to the introduction of the Federal Child Support Guidelines in These guidelines significantly changed the child support regime in Canada. Many fathers, who are most often the parent paying support and who faced increased child support obligations as a result of the guidelines, were deeply resentful. They quickly seized on one of the exceptions: the guidelines allowed for a very different calculation of the amount of support to be paid if the children were spending at least 40 per cent of their time with each parent. Using this 40% rule, the fathers' rights lobbyists began to call for a presumption of joint custody or shared parenting. They mounted an emotional media campaign and argued that family courts discriminated against fathers by systematically granting custody to mothers. They legitimated their claim by representing themselves as the objects of sexual discrimination, in a legal system that they claimed held biases in favour of women. Using a personal troubles discourse, 3 they successfully positioned themselves as victims. They also organized a vigorous and strong-armed lobby on both national and provincial levels, as well as a network of local grassroots groups. They received considerable support in the Senate, where a number of senators threatened to block approval of the child support guidelines unless there was an immediate examination of the issues of custody and access. In order to ensure passage of the child support guidelines, then Minister of Justice Alan Rock established the Special Joint Committee on Child Custody and Access, which included representatives from both the House of Commons and the Senate. This committee held hearings about custody 3 C. Bertoia, J. Drakich, The Fathers Rights Movement: Contradictions in Rhetoric and Practice (1993) Journal of Family Issues 592 2 and access across the country. Many of the hearings featured open hostility to representatives of women's organizations. Violence against women and child sexual abuse were routinely dismissed or ignored as critical issues. The Committee's 1998 report, entitled For the Sake of the Children, recommended a presumption in favour of shared parenting and criteria to define the best interests of the child test, which ignored the issue of violence within the family and focussed on extensive contact between the child and both parents. It envisioned highly punitive consequences for custodial parents who failed to facilitate access time by the non-custodial parent. In March 2001, the Federal/Provincial/Territorial (F/T/P) Family Law Committee, in collaboration with the Department of Justice undertook a further national consultation about custody and access. Past Law Reform: In November 2002, then Justice Minister Martin Cauchon introduced Bill C-22, which contained significant amendments to the custody and access provisions of the Divorce Act. It offered a number of promising innovations, including criteria to better determine what is in the child's best interests; recognition of the relevance of family violence to the security and well-being of children and the elimination of the maximum contact/friendly parent rule, while not introducing a presumption of shared parenting or mandatory mediation, despite considerable pressure from some special interest groups to do so. Bill C-22 died on the order paper when Parliament dissolved for a federak election and was not re-introduced by the new government. A year ago, in June 2008, Maurice Vellacott introduced Motion M-483, in which he suggested that the government should propose amendments to the Divorce Act that would ensure that children benefit from equal parenting from both their mother and their father, after separation or divorce. The government did not introduce such a bill, so Mr. Vellacott presented Bill C-422 this spring as a Private Member s Bill. Private Member s Bills do not generally have a high level of success, but this Bill is different. It has been endorsed by Rob Nicholson (Niagara, Ontario), the federal Minister of Justice. As well, Liberal MP, Raymonde Folco (Laval les Iles, Quebec) has expressed her support for the Bill. There is likely other Liberal party support for the Bill, as there has been in the past. 3 While Michael Ignatieff has not commented publicly on Bill C-422; in his book, The Rights Revolution, he wrote, in reference to groups supporting shared parenting: These are sensible and overdue suggestions, and the fact they are being made shows that men and women are struggling to correct the rights revolution so that equality works for everyone. The Women s Equality Perspective: Equality is the law of Canada. The Canadian government has committed itself, domestically and internationally, to evaluating the impact of its laws and policies on women, by doing a gender-based analysis. Indeed, in May 1995, the Federal, Provincial and Territorial Ministers Responsible for the Status of Women agreed on the importance of having gender-based analysis undertaken as an integral part of the policy process of government. A few months later, Status of Women Canada published a paper in which it stated: the federal government will, where appropriate, ensure that critical issues and policy options take gender into account 4. More specifically, this document states: A gender-based approach ensures that the development, analysis and implementation of legislation and policies are undertaken with an appreciation for gender differences. This includes an understanding of the nature of relationships between men and women, and the different social realities, life expectations and economic circumstances facing women and men. It also acknowledges that some women may be disadvantaged even further because of their race, colour, sexual orientation, socioeconomic position, region, ability level or age. A gender-based analysis respects and appreciates diversity 5. Internationally, Canada participated in the development of the 1995 Commonwealth Plan of Action on Gender Development that called for a gender-based management system. It also endorsed the Beijing Platform for Action ( PFA ) that calls on governments to seek to ensure that before policy decisions are taken, an analysis of their impact on women and men, respectively, is carried out. More specifically, the Beijing PFA calls on governments to review policies and programmes from a gender perspective and to promote a gender perspective in all legislation and policies 6. Canada has also endorsed Further actions and initiatives to implement the Beijing Declaration and the Platform for Action, which was adopted by the U.N. Special Assembly on June 10, Status of Women Canada 1995, Setting the Stage for the Next Century: The Federal Plan for Gender Equality, Ottawa SWC para 35 5 Ibid para 23 6 United Nations, Report of the Fourth World Conference on Women, Beijing, Chine 4 15 September Beijing Platform for Action para 204 4 Without a comprehensive gender equality analysis and strategy, any legislation on custody and access will promote women s continued inequality. It will not enable women to act in their own best interests or in the best interests of their children in matters of custody and access; interests that are inextricably linked. In fact, as long as women remain the primary caregivers of children, women s equality is in the best interests of children, and law reform can and must simultaneously take into account and promote both the best interests of children and the equality interests of women. The Divorce Act: The current Divorce Act last saw significant reform in The provisions dealing with custody and access are flawed and long overdue for revision. They present significant challenges and barriers to women with children, especially but not only those who are leaving abusive situations, including: i. the absence of any spelled-out criteria in applying the best interests of the child test; ii. the maximum contact provision, often referred to as the friendly parent rule, contained in Section 16; iii. the absence of any provisions specifically dealing with violence against women and children iv. the ban on any consideration of past conduct, unless it can be proven to be directly relevant to the best interests of the children The Reality of Mothers, Fathers, Children and Families in Canada: Much is made by those who favour equal parenting regimes of the changing role of fathers in Canadian families and of stay at home dads who spend at least as much time with the children as do the mums. Those of us who work for women s equality know such men and hope for continued and meaningful movement towards increased equality for family and home responsibilities between the sexes. However, law reform must reflect and acknowledge reality and not individual exceptions or hopes for future change. Family law reform must take account of the fact that women continue to hold most of the responsibility for child rearing and general household management and tasks in most Canadian families, both before and after separation. It must promote women s equality within the family and in society at large. A woman with children is always a mother, whether in the work force or at home with her children. The presence of children affects women s lives 5 differently from the way it affects most men, in terms of both her life choices and her life chances. 7 In the vast majority of cases, women continue to be the primary caregivers for children and do most of the housework. According to data gathered in the 2005 General Social Survey, women spend 4.3 hours per day compared to men s 2.5 on unpaid housework and child care. 8 This at a time when more and more women, especially those with young children are employed outside the home: by 2004, 65% of women with children under the age of 3 were working, a figure which is more than double the employment rate for women in this category just 30 years before. 9 Women miss more time from work because of family responsibilities: in an average week in 2004, 5% of women and only 2% of men missed work time due to family responsibilities. Overall that year, women missed 10 days of work and men just 1.5 to take care of family responsibilities. 10 The inequality and disadvantaging of women in the labour market (women continue to earn just 73 cents for every dollar earned by men), in tandem with the heavy load of unpaid housework and caring for children and other family members, places women in a situation of social and economic inequality compared with their husbands, and increases their dependency. The economic dependency of women in turn exacerbates their vulnerability to the power and control that may be exercised by a spouse after divorce, and their vulnerability to the volatility and violence exhibited by former spouses. Women s economic vulnerability only increases after separation. Women who are single parents of children under 18 years of age live below the poverty line at a rate more than double that for single parent fathers: 47% compared to 20% 11. Before considering Bill C-422, it is important to look at the reality of custody and access determinations under existing legislation. In 44% of custody cases that go to court, the outcome is an order for joint custody, which is more than double the number from the mid1990s and four times the figure when compared to the late 1980s. The rate at which women are 7 Christa Freiler, Felicite Stairs and Brigitte Kitchen with Judy Cerny 2001 Mothers as Earners, Mothers as Carers: Responsibility for Children, Social Policy and the Tax System SWC p 5 8 The Daily, Wednesday July 19, Women in Canada: A Gender Based Statistical Report 2006 Status of Women Canada p Ibid. p Poverty Profile National Council of Welfare, Minister of Public Works and Government Services p 12 6 awarded sole custody in cases that go to court has fallen from more than 70% to just 44% from the late 1980s to In other words, even without legislation spelling out a mandatory shared parenting regime, courts are making such determinations in nearly half the cases that come before them. Violence Against Women Within the Family 13 : Violence against women and children within the family remains a deeply entrenched reality of Canadian life even as its pervasiveness continues to be denied in almost all recent law reform efforts in this country. According to a 2000 Statistics Canada report women were 5 times more likely than men to have been injured during an assault and to require medical attention, 5 times more likely to fear for their lives, 5 times more likely to have been choked and 3 times more likely to require time off from work because of partnerperpetrated violence or abuse. Even a cursory glance at the findings of this report indicates that the violence experienced by women and men is neither similar nor equivalent. Further, women are more likely to be victims of stalking and sexual assault, and to experience substantial psychological impacts from whatever forms of violence they experience. 14 Gendered differences are clearly apparent in cases of homicide. The 2007 General Social Survey reported that perpetrators of spousal homicide or attempted homicide were overwhelmingly male (82% compared with 18% who were female). Recent efforts to claim that violence within families is gender-neutral, bidirectional, mutual, or occurring at similar levels for women and men does not reflect the substantive research done in this area and is misleading. This move to gender-neutral or bi-directional language reflects an intense political struggle to change the understanding of violence against intimate partners. It has serious practical implications because it promotes certain responses to violence and abuse and precludes others. It affects research, policy, legislation and public understanding of violence. 12 Women in Canada 2006 p Adapted from Transforming our Communities: A Report from the Domestic Violence Advisory Council, Ontario Women s Directorate 2009, at pp Holly Johnson, Measuring Violence Against Women Statistical Trends, 2006 Statistics Canada p. 7 7 Violence Against Women After Separation: Violence experienced by women in their intimate relationships does not end the day the relationship ends. There is an ongoing legacy that can last for many years. The violence takes on new forms such as stalking, criminal harassment and legal bullying as the abuser attempts to maintain his power and control over his former partner; ideally, to have her return to him. Custody and access is the most common arena in which this post-separation abuse plays itself out, with children the weapon in the hands of the abuser. Most family law legislation in Canada, including the Divorce Act, does not address the issue of violence against women adequately. Too often, the legislation itself and/or the court s interpretation of it continue to perpetuate myths and stereotypes when making custody and access decisions that require ongoing and intense contact and even collaboration between a woman and her abuser. Family law legislation needs to offer protections to women and their children by eliminating joint custody arrangements in cases of violence against women requiring that violence and abuse against the mother be an important factor in the best interests of the child test eliminating maximum contact provisions that do not take into account the safety of women supporting access regimes that protect women from ongoing, unsupervised contact with their abuser at exchanges of the children implementing measures to prevent abusers from using the family law and the family court process to continue to harass and abuse their former partner Unfortunately, Bill C-422 does just the opposite. Bill C-422 Analysis: Note: This analysis focuses on only those aspects of Bill C-422 that relate to custody and access and should not be read as a complete analysis of the entire Bill. What the Bill says: 1. The Bill repeals all use of the language of custody and access and replaces it with such terms and words as parenting, parenting time, equal parenting responsibility and parenting orders. 2. It sets out as one of its principles the right of children to know and be cared for by both parents. 8 3. It establishes a presumption in favour of equal parenting:... in making a parenting order,... the court shall (a) apply the presumption that allocating parenting time equally between the spouses is in the best interests of a child of the marriage; and (b) apply the presumption that equal parenting responsibility is in the best interests of a child of the marriage. 4. The presumption can be rebutted if it is established that the best interests of the child would be substantially enhanced by allocating parenting time or parental responsibility other than equally. 5. However, even if the presumption is rebutted, the court is mandated to nevertheless give effect to the principle that a child of the marriage should have the maximum practicable contact with each spouse that is compatible with the best interests of the child. 5. The Bill sets out the considerations to be taken into account when determining the best interests of the child b
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