I posted this to the Green Party candidate discussion site first to solicit opinions and received a few. I had intended to also put it here for the wider response. As it turns out I'm not the only candidate who encountered questions about this issue.
I talked with one of our constituents here in Toronto during theelection who wanted to know what our policy was on the divorce act.Specifically he wanted to know what we thought of the Senate reportprepared by Sen. Anne Cools back in 1998. That Senate report made 48recommendations for the ammendment of language in the divorce act toallow for new terms such as "shared parenting" as opposed to the terms'custody and access'. It is a very good report that I recommendeveryone read who hasn't and is interested. I only have a hard copylent to me by the voter and can't find one online in .pdf form. Iunderstand it can be ordered from Sen. Cools office.
The report went nowhere apparently in the House of Commons but this year Maurice Vellacott, MP in Saskatoon presented a motion to makesome ammendments in keeping with the spirit of the report. The aim ofthe recommendations is to take the use of children as 'weapons' out ofthe proceedings as much as possible. The aim of making theproceedings as child centred as possible in respect to sharedparenting was to ensure that an agreement be in place voluntarily and/or if one was not possible then the court had recourse to providingguidance and a procedure in obtaining one. The focus would be on theneed for both parents to have an equal relationship with their children despite their animosities. The divorce act should deal primarily with division of property and assets rather than focus onbattles over custody and access. I think it is also complicated bythe joint jurisdiction of family courts being provincial but thedivorce act being federal. The BQ in a dissenting opinion on thereport argues that the divorce act should be eliminated and the entire proceedings handled by provincial courts under provincial law.
When I looked at the policy as outlined in Vision Green it was vague and simply states that we would begin consultations with stakeholders etc. to examine revamping the Act. This frustrated the voter in question because he feels the issue has been examined and that we should refer to the reportitself. Also to have your opinions on the divorce act and shared parenting if you have them. There is more detail in the justice document prepared by Jared Giesbrecht our Justice critic on shadow cabinet.
M-483 reads as follows: --That, in the opinion of the House, thegovernment should propose amendments to the Divorce Act so that lawand practice ensure due process protection of rights and equality ofparents, and to ensure that children benefit from equal parenting fromboth their mother and their father, after separation or divorce.
M-483 was scheduled to be debated in Parliament this past October butthe election interrupted all that.
The North West Territories passed the motion (or rather a similar one)on June 19th, 2008. http://tinyurl.com/5kmkqe
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This is a comment by Andrew James, another candidate in Toronto. It is reproduced here with his permission.
Response from Andrew James.
Stephen, I happen to be the primary author of what is considered to be the "bible" of family law in Ontario (Ontario Family Law Practice - co-
written with Judges David Steinberg and Craig Perkins and leading family lawyer Esther Lenkinski). More to the point, I worked with the GPC Justice critic Jared Giesbrech on hammering out an overall "access to justice" policy for the GPC that included an element of Divorce Act reform. Here is how it reads:
"The legal costs and psychological trauma associated with family law
is a matter of national concern. No party truly wins, and the
children always lose. The Green Party believes the Divorce Act and
the process by which family law disputes are resolved must be
reformed. We will work in collaboration with the provinces to take family law away from the lawyers. The Child Support Guidelines were intended as a step in this direction through standardizing the quantum
of child support and not forcing the parties to prove need and ability to pay in court. We can take more of the “wiggle room” out of the Child Support Guidelines and extend the principle of clear,
unambiguous rules to the rest of family law through a process of
consultation and reform. We would codify the Spousal Support Advisory Guidelines, after an inquiry into whether its proposed quantums are indeed appropriate."
To me, the basic problem of family law isn't custody and access issues - it's the sheer cost. As one of my co-authors puts it, family law should be more like traffic court, and less like the Air Canada insolvency proceedings. The provinces and the feds have been working together, but they have to keep doing it Regarding shared parenting, the ecommendations of the Cools report
have had an impact on the front lines - where it really counts. Shared parenting (or alternatively "parallel parenting" where the parents absolutely can't work with each other) has become the standard approach in courts where feasible. The terminology used in the Divorce Act and the Ontario Children's Law Reform Act doesn't really matter. The question is what do we do when the parties can't communicate and
consistently frustrate each other's attempt to parent, while
attempting to diminish the other parent in the eyes of the child or
children. Is the experience of on-going friction between warring
spouses more detrimental to the children than having less than equal face time with them? It really requires a case-by-case analysis, and I can't say the courts are doing a bad job.
And what does shared parenting really mean in the practical world. Does it mean a generation of "suitcase kids" shuttling from Oakville to Newmarket and back (for example) every week? Is that in "the best interests of the child"? But the issue does requires further examination, because the economic impact of one parent having primary custody is that the non-custodial parent has to pay 100% of child support if he or she has the child less than 40% of the time. This obviously encourages custody fights,
which in term ratchet up the mutual hatred still further in an
unending spiral. Reform is needed, and I'm certainly willing to
continue to discuss with Jared and anyone else who's interested what
policy proposals the GPC should be offering.
I don't want to seem moralistic here, but study after study shows the terrible impact of divorce on children, and especially children in their teens. It's lately become my opinion that divorce when children under 16 (or so) are involved is far too easily obtained. I'm not sure there's anything the legal system can or should do about it. People have to understand before they have children the full extent of the
responsibility they are taking on. While couples are still together,
there's always a chance to work it out, or at least agree to have
separate lives while residing together to take care of the children. I don't know if anyone has ever seen "The Secret Life of Dentists" from a few years but it's a great movie in this regard. Also (surprisingly)"Knocked Up" has a subtle - but important - point to make about marriage generally.
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