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The Globe and Mail

The divorce law needs to put kid's rights first

The Globe and Mail, Canada's largest national newspaper, By HOWARD IRVING, Wednesday, October 12, 2005 page A23

Amid all the talk of rights for children, one more right needs to be asserted: Each child should have the right to benefit from long awaited and much needed changes to the Federal Divorce Act.

In May, 1997, when the Divorce Act came into effect, the then minister of justice proposed that a joint committee of the House and Senate make recommendations regarding child custody and access. After 55 hearings, and more than a year of study, the committee made 48 recommendations to Parliament, all with an underlying theme: The adversary system as it pertained to the majority of custody and access disputes put families (especially children) at risk. Despite this disturbing conclusion, Bill C-22, created to amend the Divorce Act, still sits on a shelf. Justice Minister Irwin Cotler recently said that the government aims to reintroduce child-custody and access reforms this autumn. It's about time. Correcting the current act is long overdue.

In essence, the legal system manifests protracted litigation, alienating both parents and children. Lawyers, trained to zealously advocate for the rights and benefits of their adult clients, rarely have expertise in family dynamics or child development; family dynamics are not problems in law. Yet such family disputes can have profound long-term consequences for children.

It's not the fault of individual lawyers; the adversary system in family law simply puts them into a process in which it's difficult to bring about the required resolutions, such as promoting parental co-operation and good-will, and encouraging parents to accept mutual responsibility for their children by helping them formulate clear and specific parenting plans in the children's best interests.

Many voices call for change. In May, 2005, the B.C. Justice Review Task Force proposed "a family-justice system where mediation and other consensual processes are not considered 'alternative dispute resolution' but are the norm. Families will bear the primary responsibility for making their own arrangements, with the benefit of all the resources that the new family-justice system will offer" -- resources such as parent education; family mediation; collaborative family law and legal aid services.

In my brief to the special Joint Committee of the Senate and the House of Commons, I proposed something similar: that the new divorce act affirm that both parents are responsible for the care of their children after separation and divorce. Parenting plans should be developed according to the best interests of the children. Parents should share responsibility for child support in proportion to their respective new incomes (as it stands, non-resident parents are wholly responsible for child support if their involvement in parenting does not exceed 40 per cent of the time; this holds even when resident parents have higher net earnings than non-resident parents).

The current act is replete with language about "custody" and "access," reflecting a bygone era where women and children were legal chattel of the paternal head of the household. The new act should assume the existence of two-parenting households and reflect shared responsibility. Separated families should be able to take part in education programs dealing with divorce's impact on parents and children. The new divorce act should also take into account the importance of grandparents, siblings and other extended family members.

Family mediation is intended to come alongside rather that replace the current adversarial system. Attending at least one confidential mediation session should be mandatory; indeed, the law should affirm that mediation and other methods of dispute resolution be the first choice in cases of marital breakdown. The federal and provincial governments must commit adequate resources to do all this -- to expand unified family courts, run parenting education programs and offer family mediation.

The joint committee and other task forces have put much effort into making their recommendations; if implemented, such changes would curb the worst excesses of the current adversarial system, and would go a long way toward making dispute resolution fair and equitable. Lawyers, judges and mediators should see themselves as parts of a single team, all co-operating to help divorcing parents formulate sensible, workable and effective parenting plans.

Today, at least 50 per cent of Canadian marriages or common-law unions end in divorce, affecting at least 60,000 children. Haven't enough recommendations been made? Isn't it time now for government to act . . . for the sake of the children?

Howard H. Irving, professor emeritus in the University of Toronto's faculties of social work and law, is in private practice as a family mediator.