The Special Joint Committee A Threat to Women's
BY BONNIE
DIAMOND
Access
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
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
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
very well.
"The Joint Committee
on Child Custody and Access' final report will turn
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
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
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