In response to claims by the C.B.A. reps who stated to the Joint Senate -- Commons hearings on Custody and Access that denial of child access was not the main problem - that "access denials form a minuscule part of our practices"
Subject: LAWYER GENE COLMAN ADDRESSES THE CANADIAN BAR ASSOC. RE: ACCESS
Date: Thu, 25 Jun 1998 00:53:44 -0400 (EDT)
From: "Nicholas J. Kovats" <firstname.lastname@example.org>
---------- Forwarded message ----------
Date: Wed, 24 Jun 1998 11:44:53 -0400
From: Gene C. Colman <email@example.com>
Subject: Access Denial
Do you ever sleep? You must spend your entire waking (and non waking hours) at your computer! I continue to derive much useful information from your emails. Keep up the good work.
I have this day sent to The Lawyers Weekly my response to their article re access denial. You will recall that I wrote to you about this on June 4. On June 5 you provided some feedback to me that was most helpful. My letter refers in passing to the sensible recommendation not to legislate presumptions. I know that this goes contrary to the view of those in the movement who feel that we should legislate a presumption of joint custody. However, I do truly believe that presumptions are simply wrong; they can do great injustice in specific cases. On the other hand, if there is be legislation that guides judges more, then I would take a 'joint custodial/shared parenting presumption' any day over the 'historically primary parent knows best and the NCP should take the scraps presumption'.
You have my permission to redistribute the letter below.
You might want to check out my web site again. I have posted an article on "undue hardship" that I think you will find interesting. This article is to be published in the July issue of "Money and Family Law". If you wish to put a link to this article in one of your email transmissions to the world, I would certainly have no objection.
Keep up the good work! Regards.
-- SNIP! ----------------------------------------------------------------
June 24, 1998
The Lawyers Weekly
75 Clegg Road
Attention: Mr. Jordan Furlong, Managing Editor
Re: LETTER TO EDITOR
Your 29.5.98 issue reported on the C.B.A. presentation to the Special Joint House of Commons-Senate Committee on Child Custody and Access.
The C.B.A. reps were reported to have noted to the committee that denial of child access was not the main problem - that "access denials form a minuscule part of our practices". While the C.B.A. Family Law section is to be heartily commended for many of its thoughtful, sensitive recommendations (such as emphasis on parental education, expansion of such services such as mediation, defining "best interests" and parental responsibilities, and opposition to legislated presumptions in custody/access/mobility cases), I take exception to their position which undermines and minimizes the seriousness of access denials.
CBA National Family Law Section chair Heather McKay was reported to have told The Lawyers Weekly that, "We all agree unequivocally that access denials form a minuscule part of our practices". On the contrary, I maintain that the problem of access denial is much more widespread than it should be or my colleagues in the Family Law Section apparently believe it to be. Liberal M.P. Roger Gallaway, the chair of the Joint Committee, was quoted in the May 10 Sunday Sun as having received a submission from the Ottawa-Carleton C.A.S. to the effect that of the 900 complaints received which involved custody - access cases, 600 were shown to be unfounded or unsubstantiated. A 1991 article in the American Journal of Orthopsychiatry reported that in a survey of 220 divorcing couples, noncustodial parents reported significantly more visits with their children, as well as significantly more denial of visitation by their ex-spouses, than did custodial parents.
While I agree that more empirical studies would be helpful, in the meantime there are a significant number of Canadian noncustodial parents who are labouring against a stacked deck; legislation is required now to better foster and encourage contact between children and both their parents. Unreasonable denial of access, false claims of abuse, and other tactics which deprive children of a separated/divorced parent, are significant and tragic problems that call out not only for social solutions (as correctly advocated by the C.B.A. committee), but for effective legislative remedies as well.
Gene C. Colman
Gene C. Colman, B.A., LL.B.
25 Bowring Walk, Toronto, Ontario M3H 5Z8
Tel: (416) 635-9264
Gene C. Colman is a Toronto family law lawyer who possesses a unique
understanding of the legal system's dynamics: gender bias, procedural
unfairness, challenges facing non custodial parents, parental alienation.
His web site contains articles that he has authored — many of these have
been published in legal periodicals.