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Shared Parenting after divorce to become law in Canada 


An article in the May 6, 1999 issue of the National Post announced that shared parenting and equal justice for divorced or separated parents are to become a principle imbedded in Canadian laws.  Whether what Justice Canada proposes now will actually be put into law remains to be seen.  Nevertheless, according to all appearances it seems right now that common sense will prevail in Canadian courts in issues affecting families after divorce, if the proposed changes become implemented.

Let's hope for the best and let's also keep a sharp eye on the pending developments.

Although the article provides hopes that go beyond the expectations of many non-custodial parents and family activists, it contains a few statements that require to be expanded a little.  Chris Cobb, the author of the article, said:

"If shared parenting becomes part of Canadian law, it will put the onus on courts to make orders regarding children more specific and enable police to enforce those orders. [See my note 1 —WHS]

"Parents who agree on a shared-parenting plan without legal intervention would not be affected. About 80% of divorcing couples (almost 80,000 a year) fall into this category. [See my note 2 —WHS]

The report said this would also equalize a system that punishes parents — usually fathers — who default on support payments but not parents who routinely deny legal access to the children." [See my note 3 —WHS]

My notes:

1.) The police forces do currently have the power to enforce child access orders, but they exercise it extremely rarely and in those few cases when they do, it is only when specifically ordered by the Court.  They generally excuse themselves from becoming involved in access enforcement by claiming that access disputes are a civil matter.  However, they are wrong in that.  It is a criminal offence under current Canadian law to interfere with the implementation of a court order.  That includes the interference by mothers with court-ordered access rights for fathers.

2.) It wouldn't surprise me if the 80% figure quoted in Chris Cobb's article originated from Canada's Justice Department.  Justice Canada mentioned it in its presentations to the Joint Senate/House of Commons Committee on Child Custody and access, and also used it when interacting with the media while the hearings of the Joint Senate/House of Commons Committee were being held.
    The figure, technically plausible (although to my knowledge its source was never identified in a manner that would make it possible to verify it) is a myth, at best a misrepresentation of facts.  Only its originators know their intent in presenting it.  When the 80% figure was first mentioned by Justice Canada, it was used to claim that the problems caused by the absence of workable shared-parenting arrangements affected only a small minority of divorced couples, couples who had acrimonious divorces (thereby implying that couples who don't appear in court don't have acrimonious divorces). 
    When Justice Canada first stated its 80% figure it was  implied that couples in acrimonious divorces have custody battles only because they can't agree.  The figure was used to present the myth that custody battles are the result of human failings by a few, that there are not many of them, and that dissatisfaction with custody arrangements is not the result of pervasive and outrageous anti-father bias by the Canadian courts.
    The 80% figure, ostensibly reflecting the number of couples who "agree", comprises mostly situations in which the fathers don't formally object to the decision by the divorce court that assigns to them the role of being walking wallets and turns them into remote figures in their children's lives.  These fathers are being given minimum visitation rights that often at best permit them to see their children for a few hours every second week.  These fathers don't formally object to the court decisions denying them reasonable access to their children because they know that fathers are virtually without exception not treated fairly and equitably by the courts, and that for those fathers to act contrary to that knowledge would mean an enormous financial burden in fighting an opponent with virtually unlimited funding and extensive support from many sectors of the bureaucracy.  For example, virtually without exception, Legal Aid will help only mothers!
    Although there is a small portion of couples who cooperate well enough to truly put the interests of their children over their own, many are couples whose family's assets were drained by the legal system to the point of exhaustion.  Because it is almost always men who are being held responsible to pay for the consequences of divorce, many of them are living in poverty or on the brink of bankruptcy.  Any court battle, let alone a prolonged one over access rights (they often require as many or more than 30 court appearances), will push them over the brink into bankruptcy, or worse, into suicide resulting from the despair of being unable to obtain the justice for themselves and the children they falsely thought could be obtained in the courts as a consequence of judicial objectivity.  However, most divorced or separated fathers have only minimal visitation rights, and just because they don't show up in the courts doesn't mean that their hearts don't ache for their children whom the justice system cruelly robbed of the right to their fathers.

3.) Sanford Braver, in his book Divorced Dads — Shattering the Myths, debunked many of the myths that have become generally accepted as "the truth" about divorced fathers.  He reports that fathers who are being granted joint legal custody and whose ex-wives grant them agreeable custody privileges have a compliance rate of 93% in making payment of child support amounts ordered by the courts, saying: "Here, … is a remedy that is virtually cost-free to society that appears to make fathers want to pay, voluntarily." (original emphasis)   Joint legal custody is in that respect far more effective than the coercive child support enforcement programs that are being implemented at the cost billions of dollars and have no noticeable effect on compliance rates.   [Divorced Dads, p. 197]


It took a little over 2 years of enormous efforts by many people to bring us to the realistic expectations that the article in the National Post informs us about.  It was in December of 1996 when the draft of Bill C-41, containing new child support guidelines and other restrictive, onerous rules for non-custodial Canadian parents, electrified Fathers Rights activists and non-custodial parents and caused them to become united across Canada in an extensive effort to fight for fair and equitable justice in the application of the law for parents and children of divorce.
    Bill C-41 passed in Parliament, due to the absolute majority of the Liberal Party.  However, it didn't become law until it was redrawn somewhat to grant a few concession that the Senate Committee on Sociology, Science and Technology had demanded before it would give its consent to the onerous bill.  The opposition to the bill in the Senate Committee was lead by Senators Duncan Jessiman (Progressive Conservative, now retired [now deceased]) and Anne Cools (Liberal, thank God still very active).
    Bill C-41 then became law, just in time before the federal elections.  However, Bill C-41 by itself wasn't much good in furthering the aims of the Liberal  Party.  The bill had been intended to garner an additional $500 million (some put the figure as high as $1 billion) per year in tax revenue, with the promise of paying $250 million dollars per year in child tax credits to all single mothers in poverty, with that promise playing a major role in the election strategy of the Liberal Party.  After all, who would dare to oppose attempts to relieve the plight of mothers and children in poverty, even if that relief would come at the expense of non-custodial parents (mostly fathers) and their children.  The scheme required changes to the Income Tax Act, to remove the right of non-custodial parents to claim child support payments as a deduction from their taxable income.
    Literally in the last few hours of the last week of the 1997 session of Parliament those changes were pushed through Parliament; with lightning speed and in record time, without debate, in a series of crafty moves employing considerable stealth and deception — all made perfectly legal on account of the Liberal Party's absolute majority in Parliament, but nevertheless a somewhat touchy situation on account of the looming federal elections that were to take place then within little more than a month.
    The gamble worked.  The media never gave any attention to this rather minor tax-grab out of so many that the Liberal Party had burdened Canadians with during its latest term.

Bill C-41 ostensibly reflected the results of a 6-year study by a federal/provincial/territorial task force that was intended to investigate child custody, child access and child support.  Sadly, Bill C-41 only addressed the easily-measured aspect of divorces involving Child Support!  The lobbying by non-custodial parents and their supporters resulted from the omission in Bill C-41 of the other two-thirds of the mandate of the task force: child custody and child access.  One of the concessions made in getting the Senate to give consent to Bill C-41 was a commitment by Alan Rock, then Justice Minister, to allow the establishment of a Joint Senate/House of Commons Committee for the investigation of child custody and access.  That motion had overwhelming support by numerous letters, phone calls, faxes and e-mail messages from Canadians.
    Let there be no mistake, in this one instant the Canadian Senate earned its pay for many years by acting in the best interest of our children.  That should be more than enough to defeat the arguments that call for the abolition of the Canadian Senate, but let's hope that the Senate acts more often as courageously as that.  It will prolong our hopes that democracy in Canada may yet rise from its death bed.

For a different view of the issues, have a look at an article about this that was published May 7, 1999 in The Globe & Mail.  It appears to indicate, straight from the horse's mouth, that Justice Canada intends to follow the routine that is often followed by our Government when addressing any issues of concern to Canadians: Study the subject to death.  It has always worked in the past.
    Years go by.  Report after report is issued by one commission after another, until finally the problem goes away when the public eventually loses interest.  Besides, by using this strategy it is always possible to procrastinate until the problem is inherited by the successor to the current party in power if the studies can be stretched out to extend into the next session of Parliament.
    However, the problems resulting from the issues of parenting after divorce won't go away this time.  They are growing ever larger, year after year.  Any Government that ignores these problems in this fashion will be actively contributing to the decline of Canada into social, judicial and fiscal chaos.

Visit the web site of F.A.C.T. for a comprehensive collection of newspaper articles concerning this issue.

Bruderheim, Canada, May 8, 1999


Update May 10, 1999

Brian Jenkins from F.A.C.T. stated the following:

The Department of Justice reply is out now. The FACT home page has links on it to the press release and the very brief "backgrounder", and some brief comments at:

http://www.fact.on.ca

As you can see, the release leaves a lot to be desired.

The direct links are:

http://canada.justice.gc.ca/News/Communiques/1999/cus1005_en.html

http://canada.justice.gc.ca/News/Communiques/1999/cus1005bck_en.html

_____________

See also:

Child Support and Alimony
Some [hair-raising] Case Law Examples
By Eeva Sodhi

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Updates:
2001 02 07 (format changes)
2003 04 20 (added entry for child-support and alimony case-law examples)