In Whose Best Interests?

Posted 2001-06-18 by Pamela Cross | Jurisfemme Publications – Volume 20, No. 4, Spring/Summer 2001

Both historically and currently, women have been and remain the primary caregivers of children in most families in Canada. Certainly, fathers share more of the responsibility than they did in the past, but in 52% of Canadian families, women do all of the child care and housework and in 28% they do "most" of it (Statistics Canada, 1993). These percentages do not change even when women are working in the labour market (Statistics Canada, 2000). It is also interesting to note the differences in the tasks that men and women undertake; when men do share in some of the child care responsibilities, they are more likely to engage in "fun" activities with the children such as taking them to special events or coaching their sports activities, while women are left with the more mundane responsibilities of organizing the family's activities, ensuring homework is done and getting children to doctor/dental appointments.

The lack of equality in parenting responsibilities is made absolutely clear when the adult relationship breaks down and the couple attempts to resolve how the children will live and be cared for. In some families, albeit the minority, the parents are able to make these decisions with no or minimal outside assistance. These tend to be families where there was mutual respect between the partners during the relationship and a commitment by the parents upon separation to minimize its impact on the children. The vast majority of families, however, are not able to resolve these issues effectively without outside intervention. In many of these families, the underlying issue is abuse and violence (Ontario Women's Network on Custody and Access, Brief to the Federal, Provincial, Territorial Family Law Committee on Custody, Access and Child Support (June 6, 2001) at 29 — 30, online at http://www.owjn.org/custody/brief-e.htm#_ dn54).

Violence within families is still largely unrecognized in Canadian society. Laws do not acknowledge the issue appropriately while purporting to provide a framework to assist families in resolving issues upon relationship breakdown. However, before looking at the law, it is important to state some basic realities about "family violence."

The majority of perpetrators of family violence are men and their victims are overwhelmingly their female partners and/or their children. When children are the victims, it is more often girl than boy children who bear the brunt of their father's violence. Women seldom report the abuse they suffer to the police and often do not discuss it with anyone at all. The criminal law is not particularly effective in dealing with wife assault and, in any event, deals only with physical and sexual violence and not emotional abuse.

When a woman in such a situation decides to leave the abuser, her most pressing concern is usually to secure custody of her children and to ensure that any access by the father will be safe for the children. It is at this point that the shortcomings of the law become evident.

Women seeking to resolve custody and access as part of a divorce proceeding will use the Divorce Act, federal legislation that applies across the country. Women who are not married to their partners or who are not pursuing a divorce will rely on the corresponding provincial legislation. While not identical, the provincial, territorial and federal legislation are similar enough that they can be commented upon as a single entity.

Family law legislation that deals with custody and access does not address the issue of violence within the family. Violence does not appear as a stated criterion to be considered when assessing what custody arrangement would be in the best interests of the children, nor is it a factor in the division of family property or the amounts of spousal and child support. There is enormous judicial discretion in making all of these determinations. Certainly, there are judges who understand the dynamics of abuse and violence, but there are also many who do not. Too many judges continue to perpetuate myths and stereotypes in making custody and access decisions that do not reflect either the children's or the mother's best interests.

Many of the court-related services and resources also do not adequately recognize the reality of violence against women and children. For example, mediation is becoming increasingly popular as a means of resolving family law disputes, however, there is little understanding by the courts and by many mediators of how inappropriate mediation is for women who are leaving an abusive partner. Supervised access and supervised access exchanges are inadequate. A court system that allows one partner to bring motion after motion and requires the other to respond each time does not assist a victim of abuse in fleeing her abuser. Limited access to legal aid makes it difficult for many women to be well represented in family court proceedings.

Underlying all of these shortcomings and inadequacies in the law and the systems that support it are misperceptions about family violence.

The impact of violence does not end the day the relationship ends; there is an ongoing legacy that may last for many years. It is not enough for a judge to say that the violence is over now that the relationship is over and the woman should just put all of it behind her.

The violence itself often continues after separation — in the majority of couples where there was woman abuse during the relationship, there will be abuse after it ends as well. Custody and access orders, including decisions about how the children are to be exchanged between the parents, often do not reflect this reality, with the result that some mothers are placed at risk each and every time there is court-ordered contact with their former partners.

Children who witness their mother's abuse are profoundly affected by it. Indeed, Peter Jaffe (Executive Director, London Family Court Clinic, London, Ontario) writes that children who witness the abuse of their mothers demonstrate all of the characteristics and problems experienced by children who are physically abused themselves. It is not acceptable to ignore abuse directed at the mother by the father when making custody and access determinations by claiming that "he doesn't hurt the kids."

The best interests of the child is the overriding principle used to determine custody and access disputes. However, the best interests of children and the best interests of their mothers have been constructed as being mutually exclusive and in constant conflict with one another. Neither is true. Given the reality that both before and after separation mothers are most often the primary caregivers of their children, the best interests of mothers and children cannot be separated. What is good for one is good for the other and what is bad for one is bad for the other.

The parenting of mothers is negatively affected when they live in a state of constant fear because of a joint custody order that forces them into an ongoing relationship with their abusive former partner. When access and/or access exchanges are inadequately supervised, children are exposed to and affected by verbal and other abuse of their mother by their father. When mothers are forced to relocate time and time again to stay one step ahead of a stalking ex-partner, the children are affected. Children are harmed when they are required to spend extended periods of time with a man who they have watched beat their mother.

Both women and children deserve family laws that respect their right to live free from violence and the threat of violence. Not only do such laws not exist now, but it appears that imminent legislative reform may not provide them either.

The federal government is in the process of amending the custody and access provisions of the Divorce Act. In particular, two recent papers set out the tone of the government's considerations: For the Sake of the Children, a 1998 Report of the Special Joint Committee on Child Custody and Access (available online at http://www.parl.gc.ca/InfoComDoc/36/1/SJCA/Studies/Reports/sjcarp02-e.htm) and Custody, Access, and Child Support in Canada: Putting Children's Interests First, a consultation document produced in March 2001 by the Federal, Provincial and Territorial Family Law Committee (available online at http://www.canada.justice.gc.ca/en/cons/con-sultations.html). Chief among the considerations in these documents is the elimination of the terms "custody" and "access," which would be replaced by a presumption in favour of "shared parenting." This term appears to mean that both parents would share in the decision making and general responsibility for their children. All primary caregivers, but especially abused women, should be very wary of this approach, for under such a regime it would be difficult to avoid court-ordered regular and ongoing contact with an abusive former partner.

The federal amendments (which will be adopted with little revision in corresponding provincial and territorial legislation) also focus on ensuring and supporting access by the non-custodial parent, with no apparent thought given to situations where that access is clearly not in the best interests of the children or where it may jeopardize the safety of the mother.

The amendments propose the possibility of criminalizing and increasing the penalties against parents who deny access.

There is also a proposal that the courts rely on "parenting plans" in determining which parent is better able to provide the child with primary care. There seems to be little interest in looking at the status quo. Surely it would be more logical to rely on credible information about who has been the primary caregiver in the past and, barring any stunning negative revelations, to continue the ongoing arrangement rather assigning caregiving responsibilities on the basis of promises made about future behaviour.

The federal government intends to introduce its amendments to the Divorce Act in the spring of 2002. Between now and then, there will be a number of opportunities to lobby and advocate for legislative change in the area of custody and access that will assist and support women and children who are leaving abusive relationships. For a detailed history, ongoing commentary and a copy of the response to the federal government proposals written by the Ontario Women's Network on Custody and Access, visit the Ontario Women's Justice Network website at www.owjn.org.

Pamela Cross is the Legal Director of the Metropolitan Action Committee on Violence Against Women and Children (METRAC) and the Coordinator of the Ontario Women's Justice Network (OWJN).


What you can do

Although a legal presumption of shared parenting will affect all women seeking a divorce and their children, the vast majority of women in Canada have not heard about shared parenting and are not apprised of its negative implications. At the same time, many men belonging to fathers' rights groups have been writing into the Minister of Justice with personal letters in support of shared parenting. Clearly, if the government is not presented with continued strong opposition and alternatives to shared parenting, we run the risk of its implementation and a fathers' rights approach to family law, as opposed to one that is child-centred and focused on equality.

1. Inform yourself and women in your life about the implications of shared parenting. A good way to do this is to tap into the information compiled by the Ontario Women's Network on Custody and Access (OWNCA) online at www.owjn.org. The brief submitted to the Federal, Provincial, Territorial Family Law Committee on Custody, Access and Child Support by the OWNCA is one of the many sources of information posted on the website.

Use this information and/or your own experience of custody, access and child support to write a letter to the Minister of Justice, Anne McLellan opposing shared parenting. Letters don't need to be detailed — numerous short and personal objections to shared parenting are bound to be the most effective politically. No stamp is required to send a letter to the Minister and she can be reached at the following address:

The Honourable Anne McLellan
Minister of Justice
284 Wellington Street
Ottawa, Ontario, Canada
K1A 0X8

You can also telephone and/or write with your concerns to your local Member of the Provincial Legislature.

2. Take the OWNCA brief to an organization that you are affiliated with for official endorsement. Your organization can sign onto the brief by emailing info@nawl.ca and asking that the group's name be added to the endorsement page of the brief.