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Fairness for Fathers rejected by government

http://www.nationalpost.com/home/story.html?f=/stories/20010907/689287.html

The National Post
September 7, 2001

Child custody reform on back burner
Committee's bid to create fairness for fathers in Divorce Act apparently
sidelined: McLellan documents
By Luiza Chwialkowska

OTTAWA -Internal documents from the federal Department of Justice suggest
Anne McLellan, the Minister of Justice, has been advised to ignore the
core recommendation from a parliamentary committee that worked on an
overhaul of child custody provisions in the Divorce Act, says Roger
Gallaway, a Liberal MP who is co-chairman of the committee.

Written advice from senior officials to the Minister suggests high-level
resistance to replacing Canada's custody-and-access rules with a
requirement that mothers and fathers share equally in parenting decisions
after divorce, said Mr. Gallaway, who co-authored the report with Liberal
Senator Landon Pearson.

Mr. Gallaway's conclusion echoes the findings of an Aug. 20 National Post
editorial based on the documents, obtained under the Access to Information
Act by an independent researcher and provided to the Post.

The editorial said the documents "clearly indicate that Ms. McLellan and
some justice department officials decided early on to reject any steps
toward shared parenting."

Ms. McLellan must respond by next May to the report, presented to her in
December, 1998.

The documents do not reveal the content of her response, but Mr. Gallaway
said they show departmental resistance to the committee's core
recommendation -- that sole custody orders give way to shared parenting.

"My conclusion has to be that, although there was a committee working,
they had no intention of accepting or following the recommendations of the
committee," he said after reviewing the documents.

The papers include an analysis of the committee report, dated Feb. 12,
1999, prepared by Virginia McRae, a senior justice department official,
stating, "it is very unclear how this recommendation [of shared parenting]
could be legally operationalized."

The label of shared parenting is "at best a cosmetic approach" that could
"result in changing expectations and more custody disputes," the analysis
said.

"New language will become as loaded as the old," it adds.

The analysis also says that the committee recommendation of a preamble
referring to a "child's right to close and continuous relationship with
both parents" could be "problematic" and would "weaken the best interest
of child principle."

A separate undated and unsigned document states, "the department cannot
support the ... position to impose a presumption of joint parenting in the
Divorce Act."

Another document recommends that the government "recognize that no one
model of post-separation parenting will be ideal for all children," and
suggests that legal reforms "allow for flexibility of outcomes."

Mr. Gallaway said the recommendations fly in the face of the committee
report.

"They don't want to touch the Divorce Act in any way," he said. "They may
agree to do away with the words 'custody and access' but the plan is that
judges will still hold the authority to decide who will have the time and
who won't. So they're changing the vocabulary, but they are leaving this
enormous power with social workers, psychologists, and lawyers to fight
the fight and assess which parent is fitter," he said.

"We wanted to take away from judges this battlefield of deciding which
parent is better than the other," he said.

Mr. Gallaway says the documents also suggest that the government plans to
increase the involvement of social workers in divorces.

"They are going to pour money into programs on mediation, conflict
resolution, programs on this and that. But the Divorce Act, as it is, is
holy to them," he said.

Farah Mohamed, spokeswoman for Ms. McLellan, said the Minister has not yet
decided on a response to the report.

"I find it a bit outrageous to suggest that the Minister is planning to
ignore something when no decisions have been taken about terminology," she
said.

"What [the committee] has said is consistent with what the Minister has
said -- that it is important for children to have continued involvement
with their parents unless this is not in the best interests of the child.
This is what we are consulting on, and again, no decisions have been
taken," said Ms. Mohamed.

Mr. Gallaway disagreed with the department's assessment that his
committee's recommendations were unclear or unworkable.

"The objective of the report was to make the parents equal in terms of
decision-making powers involving their child or children. It makes it very
clear that we understood it did not mean that a child would spend 50% of
their time with one parent and 50% with the other because in many cases
it's not always possible," he said.

Mr. Gallaway also said he detected an anti-father bias in the tone of the
documents. The communications plan suggested emphasizing that the
parliamentary committee heard from a "large number of fathers' groups,"
even though the number of women's groups appearing was larger, he noted.

The communications plan emphasizes that only 10% of divorces are disputed
in the courts, but fathers' groups complained the existing legal framework
gives women the upper hand in negotiating out-of-court settlements.

RELATED SITES:

Divorce Act
http://laws.justice.gc.ca/en/D-3.4/
The entire act online.

The Children's Voice
http://home.ican.net/~kidshelp/
Advocates the dismantling of the adversarial system in Canadian family law.

FACT
http://fact.on.ca/
Fathers Are Capable Too advocacy page.

Joel Miller's Family Law Centre
http://familylawcentre.com/
A large Canadian-based site with comprehensive links to family law
guidelines and legislation.

Status of Women Canada
http://www.swc-cfc.gc.ca/
Federal government agency mandated to promote gender equality.

Copyright © 2001 National Post Online
National Post Online is a Hollinger / CanWest Publication.
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