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.