The Special Joint Committee

BY BONNIE DIAMOND

Dans cet article lhtltezrre sozrligne- was going to enforce child support, it should also enforce qzre Le Comiticonjointspicialszrr les father's rights to have access to their children (Mitchell). The public was led hits pde et ,;cc, pour /es Just weeks before the Child Support Guidelines were to f 0 believe that enfants ~o~tsaperlesdroitsh/'Pgalith come into effect, a group of Senators, Ann Cools among mostdivorced desfimmespourtan~g"g"dehazrte them, threatened to reject the Bill. Rock reluctantly . ltrtte. dans la Loi sur le divorce. appointed the parliamentary Special Joint Committee on and separated Custody and Access and included Ann Cools in its families in membership. The Committee was jointly chaired by two Canada are As the twenty-first century gasps Liberals, Senator Landon Pearson and M.P. Roger Gal- its last breath, women's eaualitvL, laway. rights are under serious siege. A Fathers' rights groups or individual fathers dominated tangled- in a web of endless brief look at the parliamentary the witness list with their personal stories of "parental .- Special joint Committee on alienation" and personal loss. It seemed that non-custodial wra nglI ng over dustody and Access provides one fathers were given precedence at the hearings and their the children. clear example of modern, political tales of "vindictive" ex-wives illegally denying their rights assault on women's hard-won to see rheir children went unchal-lenged. Committee gains, this time through the Divorce Chair Landon Pearson did not stop fathers'rights advocates Act. To fully understand the extent from heckling women during their presentations of the threat it is useful to look at the origins and process (Landsberg 1998b). of the Special Joint Committee on Custody and Access On the other hand, women's groups were repeatedly and at its subsequent report, filed in December 1998, denied access to the hearings and when they were invited entitled For the Sdke of the Children. to appear they were jeered, mocked, and their well- The Special Joint Committeewas a political concession researched presentations were derided (Landsberg 1998a). made by the 1997 Justice Minister, Allan Rock, to the Some women's groups said that they werelaughed atwhen father's rights movement. Rock, at the urging ofwomen they testified about wife battering and abuse (Landsberg who were suffering financial hardships after separation 1998b). Research and documentation brought forward and divorce, had introduced a bill1 to establish Guidelines by women and women's groups was dismissed by some on Child Support. The proposed guidelines standardized Committee members as "propaganda" (Shaughnessy) child support based on the income of the non-custodial alrhough much of that data was derived from Statistics parent, usually fathers, and on the number of children to Canada's National Szlrvey on Kolence Against Women. be supported. Equally important, the Bill removed the Women's organizations and other spokeswomen from necessity for cusrodial parents, usually mothers, to pay wife abuse shelters pointing out that some of the non- income tax on childsupport, and eliminated the automatic custodial fathers who appeared had been charged with tax deduction for payers of child support. The new assaulting rheir spouses were threatened by Cools with lie- guidelines came about as a result ofSuzanneThibaudeau's detector tests (Mitchell). Committee membersaskedshelter court challenge in the early '90s (Thibattdeazrv. Canada). spokeswomen how many women who showed up on their Thibaudeau argued that forcing custodial parenrs to pay doorstepswere lying about abuse (Mitchell). Cools publicly income tax on child support was a form of sex declared that mothers pose a greater abuse threat to discrimination because it had an unfair impact on custodial children than fathers (Cools) despite her being acquainted parents, the majority of whom are women. Although the with the findings of a 1996 study by Statistics Canada . ~ Supreme Court did not agree with her, the federal indicating that fathers were responsible for 73 per cent of government proposed the taxchange, andparents, lawyers, physical assaults and 98 per cent of sexual assaults and judges were given a formula for determining the committed on children by parents (Statistics Canada).

amount ofchild support. Fathers' rights advocares charged The fact that mothers are most often appointed. . the that the new guidelines were an unfair intrusion of custodial parent after divorce was cited as evidence that government into their lives. They argued that ifgovernment courts are biasedagainst fathers, even though approximately

182 CXNADLW WOhlAN STUDIESILES CAHIERS DE U FEhlhlE Access

70 to 80 per cent of divorcing mothers and fathers come Access' final report will turn to a mutual agreement that the motherwill continue to be Canada's Divorce Act into a tool for The most the primary caregiver following divorce without resorting chaos for women and children in to the courts. In most cases this continues the parenting high-conflict families" (Mitchell). d i~tUl bi tlg aspect arrangement that was in place prior to the separation. The Report proposes eliminating of the A week before the Committee filed its report, Ann the terms "custody" and "access" Cools called for the resignation of Hedy and reolacine them with a form of Commitfee '.l Fry, Secretary ofstate for the Status ofwomen, following mandatory joint custody called workings and its the publication of a Globe and Mail article in which Fry "shared parenting." This concept is expressed her reservations about the tactics of some not well-defined in the Report but it report is the Committee members ("Face-Off Over Child Access"). implies that parents "share" equal abject failure One Citizen headline read that Fry had been authority over children without . .. . ~ .. . . to addreSSthe accused of "sabotage" for publicly speaking out to set necessarily "sharing" equal day-to- straight the record on women (Cobb). Countless letters to day responsibili, for children. The issue of violence the editor and opinion pieces, written by the National terms of shared parenting would be against women.

Association of Women and the Law (NAWL)and other outlined in "parenting-. plans" which women's organizations, were repeatedly refused pub- parents would be required to present lication by editors of the major Canadian newspaper.2 as the basis of "parenting orders," a When Michele Landsberg, a femi-nist columnist for The replacement for custody orders. These "parenting plans" Star, exposed the bias of the Committee in her would be developed after educa-tional classes that would column, Ann Cools threatened her with a charge of teach the benefits of shared parenting. Those who could contempt of Parliament ("Face-Off Over Child Access"). not easily work out "good parenting" plans would be sent It was no surprise, given the poisoned process of the Com- to mandatory mediation. mittee, that its report is toxic to women's rights. The fulcrum of the Report is a list of criteria that would The hearings and media coverage of the Special Joint be used determine "the best interests of the child." Pre- Committee on Custody and Access painted a frightening ference would be given to parents who favour shared and false picture of the state of custody and access in this parenting; to those who are most willing to encourage a country and of women's behaviour towards men. The close and continuous relationships between the child and public was led to believe by both the Committee and the the other parent; to those mostwilling- to attend mediation mainstream media that most divorced and separated and educational sessions; and to those best able to provide families in Canadaare tangled in aweb ofendless wrangling the necessities oflife to the child. Any notion that mothers over the children with hoards ofdistraught fathers weeping are superior caregivers would be against the best interests on their "callous ex's" doorsteps. The fact that most of the child (Mitchell). divorcing couples work out custody and access issues In an analysis prepared for NAWL,family law practitioner without going to court and after the first year or so of Carole Curtis points out that the language used to describe sorting out the details, settle into a workable arrangement post-separation child-care arrangements (from "custody is not mentioned in the Report. This is remarkable and access" to "shared parenting")- will not result in a shift considering that easily-accessible Department of Justice of long-ingrained historical and social patterns of care- statistics reveal that only 3.8 per cent of all custody and giving. Worse, it will encourage court disputes in those access cases are resolved through the courts and only about high-conflict families where parents look for every five per cent of those cases ever proceed to the trial stage opportunity to do battle. Curtis points out that the (Department of Justice). existence ofthe Joint Committee report is already creating- At the time of the Report's release, Penni Mitchell, in a confusion, in that some lawyers and clients think the column for The Winnipeg Free Press, summed up the suggestions in the Report are already the law (Curtis). implications of this report for women and their children The area ofcustody and access is a complicated one, and very well. "The Joint Committee on Child Custody and the consequence of changes to the law profound. Policy-

VOLUME 19, NUMBERS 1 & 2 183 making in the area of custody and access law must be of handing over children to an abusive parent or having to evidence-based, following a careful analysis of existing face criminal sanctions for defying a court order. There is data, not merely the anecdotal summaries of "town-hall" no recognition that violence w'itnessed or experienced by meetings. The bibliography in the Reportrefers only to the children should bea factor in determiningcustody. Women material that was presented to the Committee by witnesses reportingabuse could be jailed for making "falseallegations" and other presenters. There is a very large, con-stantly and could be deemed "unfriendly" parents for not wanting growing, and sophisticated body of literature regarding to maximize contact with the other parent. Women who custody and access which was entirely ignored by the flee the family home "without suitable arrangements for Committee. Custody and access is thesubject ofscholarship contact between the child and the other parent" could be by experts, both academics and practitioners, from many seen as acting contrary to the best interests of the child. different and highly skilled disciplines: mental health There is no recognition that in cases ofwife or child abuse, professionals (both clinicians and academics, including including sexual abuse, no access by an offending parent social workers, psychologists, psychiatrists) and would sometimes be in the child's best interests. professionals in the family law system (judges, lawyers). The recommendations in the Report call for a review of There are many new articles published every month about the Child Support Guidelines to reflect the thrust of the custody and access. This Committee made no effort to Committee's new approach and language brings the process examineeven the available research. Nor did the Committee full circle and perhaps reveals the real motivation behind commission any research on the area, which should also be the fathers' rights groups. Would the new concept of used to inform any policy-making with consequences of "shared parenting" completely exempt either parent from this magnitude. This, sadly, is an opportunity missed. paying child support? That could be one implication of The most disturbing aspect of the Committee workings adopting the "shared parenting" scheme that is suggested. and its report is the abject failure to address the issue of The report certainly hints that non-custodial parents who violence against women. Wife assault and sexual abuse of have children in subsequent relationships might be able to children in families is a disturbing and widespread opt out of the new support guidelines. It is also clear that occurrence in Canada (Rodgers) .3The demand for services any expenses related to facilitating contact between a for assaulted women and their children leaving abusive parent and child would be deducted from support relationships continues to grow. The number of children payments. Which brings us right back to why the disclosing sexual abuse is also increasing. Yet the Report on Committee was struck in the first place-an attempt by custody and access is almost entirely silent on the two most some non-custodial fathers to resist the newly-proposed detrimental and significant issues facing Canadian children. Child Support Guidelines. Only inferentially does the Report deal with either ofthese In May 1999,Justice Minister Anne McLellan formally very serious issues, by referring to the incidence of "false responded to the Report of the Joint Committee on Custody reporting." By doing so, the Report seemingly denies the and Access. While she did not commit to acting on its existence of wife assault and sexual abuse of children. recommendations neither did she condemn them. She Women's groups have worked tirelessly for years to instead called for a three-year period of consultation ensure that the occurrence of violence against women in before proceedingwith reforms ofthe DivorceAct. Women relationships, and the incidence ofsexual abuse ofchildren and women's groups will have to fight hard during this in the homes by their father or their mother's partner is period to resist the changes put forward by the Joint brought to the attention of and, acted upon, by all Committee which have garnered some significant public governments in Canada. Courts simply cannot assume support. The Committee's workings, the media support that women and children are safe after separation. In fact, for anti-woman sentiments expressed by members of the the data is overwhelming that violence in the home Committee, and the failure ofother Committee members escalates when a man fears that he will lose his wife or to stand up for women's rights, all signal the danger partner. Tragically, this is the point at which women are presented by the increasingly organized father's rights most often killed by their spouses and partners (Crawford movement. These men are feeling strengthened by the and Gartner). support they received by the members of the Special Joint The Report also completely ignores contemporary evi- Committee on Custody and Access and they will escalate dence that processes such as mediation are not suited to their political challenges. Some fathers' rights groups are parties where violence is present (Goundxy et al.) and threatening to launch a Charter challenge against the recommends mandatory mediation as a first step inworking Women's Program at Status of Women Canada which out parenting plans. The Report recommends that the funds equality-seeking projects. Recently they have also DivorceActbe amended to state that divorced parents and laid a complaint against Madame Justice Claire L'Heureux- their children "are entitled to a close and continuous Dubt for her Supreme Court judgment in R. v. Ewanchuck relationship with one another," a clause that could force where she clearly articulated that when it comes to sexual children who have been abused into regular contact with assault "no means no." In other times these challenges their abusers. A woman could face the impossible choice might be laughable. However, given the inroads made by

CANADIAN WOMAN STUDIESILES CAHIERS DE LA FEMME fathers' rights groups on custody and access who knows R. v. Ewanchuk, [l9991 S.C. J. No. 10. where these threats will go. One point is made very clear Rodgers, Karen. "Wife Assault: the Findings ofa National by this political exercise: women's equality rights cannot Survey."Juristat [Canadian Centre for Justice Statistics, be taken for ganted as we enter the next millennium. Statistics Canada] 14.9 (March 1994). Shaughnessy, Louise. "Media Mouthpiece for Men." The author wishes to acknowledge the work of many women Kinesis (December/January 1999). who have worked hard with NAWL on the issue of women > Special Joint Committee on Custody and Access. For the rights in the Divorce Art, particularly, Carole Curtis, Penni Sake ofthe Childven:ReportoftheSpecialJoint Committee Mitchell, Michele Landsberg, andLouiseShaughnessy, whose on Custody and Access. Ottawa: December 1998 work forms the basis of this article. Statistics Canada. The Daily 28 May 1998. Thibaudeau v. Canada, [l9951 2 S.C.R. 627. Bonnie Diamond is currently the executive director of the NationalAssociationofWomenandthe Law (NAWL). Formerly she was the executive director ofthe Canadian Elizabeth Fy Societies, the co-chair ofthe Task Force on Federally Sentenced Women which calledforthe closingofPrisonforWomen, and director of research for the Canadian Panel on fiolence Against Women.

Bill C-4 1, passed May 1997. 2~hisis firsthand experience. NAWL wrote several letters to the and to the National Post and to that were not published. Other women's CLARE BRAUX groups reported to NAWL that they had also written but had not been published. Levitation 3~eealso the website of the Clearinghouse on Family Violence at Health Canada which provides statistics on both women and children which substantiate this claim: http://www.hc-sc.gc.ca/hppb/familyviolence/index.html

References A headlong wind swerves broadside, tumbles the fronds and shivers Cobb, Chris. "Hedy FryAccusedofDivorceAct Sabotage." the bug screen. The Ottawa Citizen 20 November 1998: Al. Cools, Ann. "The Magazine." newswor world. 2 November I hear the refrigerator's agonizing hum, and 1998. him Crawford, Maria, and Rosemary Gartner. Woman Killing: who rustles his paper, turning the pages one Intimate Femicide in Ontario 1974-1990. Toronto: by one. Women We Honour Action Committee, 1992. I hear his smoke-filled breath. Curtis, Carole. "Analysis Prepared for the National Association ofwomen and the Law by the Chair of the I sit eyes glued to a page in a book Family Law Working Group." Unpub. about Anai's, who speaks: "Poetry is a way Department of Justice. "Evaluation of the Divorce Act. to learn levitation." Phase 11: Monitoringand Evaluation." Canada: Bureau of Review, 1990. The rain follows, twists the palm tree "Face-Off Over Child Access." Globe and Mail. 3 disheveled. Tears succumb, November 1998. glancing off its cut-up bark. Goundry, SandraA., Yvonne Peters, and Rosalind Currie. Family Mediation in Canada: Implicationsfor Women > Equality. Ottawa: Status of Women Canada, 1998. Landsberg, Michele. "How Far Have We Come on Domestic Assault Issues." Toronto Star 14 November Clnre Bm1r.u is 71-year-old retired lligll scl~ool 1998: L1. art tenclzer zul~o/Ins been writing for over 15 Mitchell, Penni. "Senate Commons Divorce Report: A years. Her novel, Medusa and Her Sisters, zvas Recipe for Abuse." Winnipeg Free Press 18 December pl~blislledby Moonstoize Press in 1994. 1998.

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