Wednesday, December 18, 2002

'Mother gets all' in new Divorce Act

Critics attack reforms: Bill de-emphasizes 'maximum-contact' custody principle

Cristin Schmitz
Ottawa Citizen
National Post

CREDIT: Fred Chartrand, The Canadian Press Justice Minister Martin Cauchon is under fire for not publicizing changes to the Divorce Act that could affect the amount of time non-custodial parents get to spend with their children following a divorce.

OTTAWA - An unpublicized change in the federal government's proposed custody reforms would abolish the Divorce Act's long-standing requirement that children of divorce should generally have maximum contact with both parents after the divorce.

The move to quietly repeal the statutory "maximum-contact" principle, which non-custodial parents have relied on since 1985 to preserve their time and relationships with their children, was not mentioned in the Justice Department's news releases or media briefings when the contentious Divorce Act amendments were introduced on Dec. 10 by Martin Cauchon, the Minister of Justice.

The proposed amendment was denounced by the Canadian Alliance party and some Liberals as a serious setback to children's rights to preserve strong bonds with both parents after divorce.

"It's a terrible thing and it is consistent with the whole flavour of Mr. Cauchon's proposal," charged Liberal Senator Anne Cools, an outspoken advocate for fathers' rights. "It's an attempt to shift back to the earlier position ... of 'mother gets all.' "

"It's a regressive step that is going to mean greater inequity in the rulings of courts rather than more equality," echoed Jay Hill, the Canadian Alliance's critic on divorce. "It's going to perpetuate the gender bias that already exists in the court system; that's my great fear."

Section 16(10) of the current Divorce Act specifically requires judges who preside over child custody and access disputes to "order as much contact with each spouse as is consistent with the best interests of the child."

That directive to courts is dropped in Bill C-22, which simply tells judges who are determining a child's best interests post-divorce to "consider all the needs and circumstances of the child," including 12 specific factors. One of those factors is "the benefit to the child of developing and maintaining meaningful relationships with both spouses."

Department of Justice lawyer Virginia McRae acknowledged the maximum-contact principle has been de-emphasized.

"We did not want people to get bogged down on the quantity of time a child spends with a parent," she said. "It really is about the nature of the ongoing, continuing beneficial relationship between parents and children, and to focus on a 'maximum' gave people something more to fight about. It's about what the needs of the children are."

Ontario Liberal MP Roger Gallaway, who co-chaired the joint Senate-Commons special committee on child custody and access, said he is spearheading a fight within the Liberal caucus to defeat Bill C-22 when it comes up for debate at second reading. "The strategy is going to be to oppose the whole thing," he said. "There will be considerable opposition to this bill in our caucus."

Cools said she is confident dissenting Liberals will be able to push Cauchon to remold his bill "to produce a fair and balanced regime. A lot of senators have already told me that they are very disappointed with this effort," she said.

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