Comments on Justice Canada Public Consultation Document titled "Putting Children’s Interests First: Custody, Access and Child Support in Canada"

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Comments on Justice Canada Public Consultation Document titled "Putting Children’s Interests First: Custody, Access and Child Support in Canada"

By Eeva Sodhi (2001 04 27)

 

The first requirement for reliable research results is that the survey is conducted using non-leading and unbiased questionnaires.

This survey does not meet this basic requirement. The consultation questionnaire is accompanied by a leading document.

Contrary to established standards, the respondents are asked to consult the accompanying document before answering the questions in the feedback booklet.

1. "Current custody and access laws authorize judges to make custody orders based on the best interests of the children. … In addition, it is important to be realistic about how much changing the legislation can accomplish … Evaluation studies [in "several countries and U.S."] suggest that changing the law has not dramatically changed the way …" [p. 8]

The reader is told that the current practise is the correct practise. Secondly, contrary to the above statement, studies in the U.S. show that, among other benefits, divorce rates have been reduced in those states that have changed the law to mandated joint custody.^[i] This is true even when the fact that, because of false allegations, many custody orders are initially awarded to mothers, is taken into account.

Based on false allegations, courts may err and award sole custody to an unfit parent. Judges are reluctant to change an existing order, citing the "best interest of the children" principle, even if the allegations are later found to be groundless. An unwarranted separation from a loving parent is a form of child abuse. Moreover, given the better monitoring provided through shared custody, joint custody's self-correcting tendencies can be seen to be stronger than those of sole custody until the allegations have been proven true.

2. "Before you begin, here are some key points to consider: The current law in most provinces and territories allows parents to agree to any kind of parenting arrangement that is in the best interest of the children" [p. 9]

Again, the reader is told that the current arrangement is "in the best interest of the children". There in no room left for independent evaluation. If the survey subject rejects this option, s/he reject the concept that post divorce arrangement should be "in the best interest of the children"

It is a mistake to assume that the interests of the children and the custodial parents must correspond. Overwhelming numbers of custody orders are awarded to mothers. Yet, all reputable research, including the "Canadian Incidence Study of Reported Child Abuse and Neglect" (National Clearinghouse on Family Violence, March 2001),^[ii] document that biological mothers, especially those who are either lone parents, or who cohabit, rather than natural fathers, are the main perpetrators of child abuse and neglect.

Therefore, the first four options can not be viewed to confirm to the "best interest of the children" doctrine.

3. Option 3: Define Custody Narrowly and Introduce the New Term and Concept of Parental Responsibility: "responsible for meeting the children’s daily needs, which include housing, food, clothing, physical care and grooming, and supervision" (p. 12)

Clearly, there is an overlap of "responsibilities". "Housing, food and clothing are presumably covered by the money received from the support paying parent, who also has to provide the same during the children’s visits. "Physical care and grooming, and supervision" can be seen to fall into the domain of the residential parent, though that is not always the case. The custodial parent is not accountable in any manner, the access parent is held accountable in more ways than one.

The two next categories under this same heading, consisting of decision making power, could be considered to be rights rather than responsibilities.

The first four options promote litigations by forcing the parents to be in a constant power struggle over the children.

4. Option 5: Replace the Current Legislative Terminology: Introduce the New Term and Concept of Shared Parenting: "parents wishing to begin from another starting point would have to show that shared parenting would not be in the children’s best interest" (p. 14)

As a concept, this is the ideal. On the practical side, this also may be yet another inducement to promote conflict or to file false allegations in order to obtain sole custody as long as it continues to provide certain advantages. The accusing parent is seldom held accountable even if the allegations are, eventually, found to be groundless.

One of the objections to joint custody of the children, which is proven to be a disincentive for divorce, is that men request it in order to maintain power and control over the women. On the other hand, the biggest inducements for sole custody are not only the material and financial benefits that accompany it, but also the unrestricted power of decision making and gatekeeping.^[iii]

Considerable amount of emphasis in this survey is on the impact of "family violence" on children, either as victims or as witnesses, without specifying what is meant by "family violence" in this context.

In the feminist literature, on which this document draws heavily, it is treated as being synonymous with "wife abuse" or "violence against women". In the broader context, it covers all forms of violence and abuse perpetrated against family members, irrespective of age or sex.

Yet, this "Consultation Document" dismisses one aspect of this violence as a non- issue: namely false allegations and their effect on children and the accused parents.

I do not want to minimize the devastation of any violence. However, the only way to combat violence is to make it inclusive of false allegations and to hold those who file them accountable. A parent who either files false allegations against the other parent, or who creates or professes conflict in order to obstruct joint custody, should automatically become ineligible for custody, either sole or joint.

False allegations may eventually lead to the very violence and abuse that the target parent is accused of. Though no comprehensive statistical data are available in Canada, some studies indicate that the numbers are significant.^[iv]

Support payments.

The "Consultation Document" makes a concerted effort to prove that the existing Federal "Child Support Guidelines" are based on sound principle. This in itself is contrary to the standards of ethical research.

The concept of access time as a determining factor is not valid. In order to exercise over night access the access parent has to provide suitable accommodation for the children. The same accommodation is required irrespective of the number of nights that the children spend either with the custodial or the non-custodial parent. Therefore, the housing needs are identical for both parents. Both the parents, irrespective of their status, also have a similar need for transportation. Both parents also have to provide suitable clothing, toys and sports equipment, which seldom accompany the children.

Considering that housing and transportation are the major costs, and further considering that the custodial parent usually continues to occupy the family home, including its contents, whereas the non-custodial parent will have to start from the beginning, the balance is strongly in the favour of the custodial parent. Often the non-resident parent is ordered to continue to pay, in addition to child/spousal support, the mortgage and other expenses relating to the matrimonial home until the children reach the age of majority. Therefore, the support payments are grossly out of touch with reality. If the non-custodial parent has a new family to support as well, these costs create a real hardship for the new household, though this is seldom recognized by the courts.^[v] Conversely, the parent receiving support payments and enjoying the use of the former matrimonial home will benefit further from a new relationship.

Joint physical custody would eliminate the issue for support and thus effectively remove the conflict caused by support payments. Once the profit aspect, as well as the promise of unobstructed decision making over the children, has been removed from divorce, some parents may be more willing to put the children’s, rather than their own, interest first.

Logically, in order to be fair to both parents and their children, only those parents who refuse to accept shared physical custody should be ordered to pay child support. This support should not be more than the factual child related expenses. A parent who refuses to grant shared physical custody without a valid reason, should receive no support payments.

It is also cogent to keep in mind, when completing the survey, that the Department of Justice acknowledges that it does not conduct unbiased research.^[vi]

The "Consultation Document" lists several publications as reference. However, the neutrality of these publications is questionable. They also have used the gender based methodology that is demanded of Justice Canada research.

Nicole Marcil-Gratton [and] Celine Le Bourdais. Custody, Access and Child Support: Findings from the National Longitudinal Survey of Children and Youth. Presented to Child Support Team, Department of Justice, 1999. On p. 27 the authors assert that "the present data will assist us in beginning to sketch a profile of fathers separated from their children."

However, the authors themselves acknowledge that this document fails to examine the reasons behind the statistics [p. 21]:

"While the NLSCY provides, for the first time, national level of information on the amount of contact between non-custodial parents and their children, it did not ask about the reasons for the patterns of contact maintained. We cannot, therefore, address these issues. What we can do, however, is to describe the patterns of contact between non-custodial parents and their children after separation, and the factors associated with these patterns"

It is not possible to provide the factors associated with these findings, as the authors claim, if they on the other hand admit that the reasons, which quite clearly are the factors for the outcomes, are not known.

Ray DeV. Peters, Robert Arnold, Jeff Stewart, Claire Crooks and Camil Bouchard, June 1998 Human Resources Development Canada Applied Research Branch (ARB) T-98-3E "Fathers of Canadian Children and Youth: Measures of Paternal Characteristics and Influences on Child Development for the NLSCY"

This publication by the "Better Beginnings, Better Futures" is issued by the Ministry of Human Resources and Development, and may well be the primary source for information used by the Child Support Team in the above document.

The quotation on pp. 6-7 sets the tone of the publication: "...social scientists have been ‘remarkably unsuccessful’ in understanding why so many men have either removed themselves, or allowed themselves to be excluded, from their children’s lives, despite the adverse effects which such absence has on child development"

The implicit message in both of these documents is that the amount of contact is controlled by the non-custodial parents, though no relevant data were sought in this regard.

The same gender-biased approach is evident in all of the publications that are cited as reference for this survey. To the uninitiated, the completion of the questionnaire is a formidable challenge.

The Minister of Justice herself has expressed her opposition to joint custody.^[vii] Both the previous surveys, namely the one conducted by the Special Joint Committee on the Child Custody and Access, and the recent Focus Group survey, have concluded that joint custody is in the best interest of the children. There have been several public opinion polls on this matter. All indicate that the majority of Canadians, men and women alike, consider joint custody to be in the best interest of the children.

However, the Minister steadfastly refuses to accept these recommendations as they contradict her personal beliefs. Therefore, one might question her ability to act as an impartial judge in this matter.

Eeva Sodhi

__________________
Notes.

1. Richard Kuhn and John Guidubaldi, "Child Custody Policies and Divorce Rates in the U.S.," 11th Annual Conference of the Children's Rights Council October 23-26, 1997;  Washington, D.C. (1997) showed a significant correlation between joint physical custody awards and reduced divorce. They conjectured that a parent who expects to receive sole custody is more likely to file for divorce than one who may be awarded shared custody. Sole custody allows one parent to hurt the other by taking away the children, and usually involves higher child support transfers than shared physical custody. Sanford Braver discusses the implications of their findings in his new book Divorced Dads.

2. Margaret F. Brinig and F.H. Buckley, "Joint Custody: Bonding and Monitoring Theories," Indiana Law Journal 393 (1998). There is a correlation between joint physical custody awards and reduced divorce. Under bonding theories, a spouse who would expect to lose custody under a sole-custody regime has greater incentives to bond with his family under joint custody. With greater family bonding, the likelihood of a divorce declines. This would greatly benefit children, for whom a divorce is devastating. Under monitoring theories, joint custody usefully polices the agency costs of misbehavior by a spouse who has been granted sole custody. The non-custodial spouse has thus a greater incentive to support his child on a move to joint custody. Our principal result is that divorce levels are negatively and significantly correlated throughout with joint-custody laws. These results are consistent with the hypothesis that joint-custody laws reduce divorce levels. … A change to joint-custody laws is associated with a two- to eleven-percent reduction in divorce levels. This is a small but substantial gain; a larger one would have been suspicious."

1. Canadian Incidence Study of Reported Child Abuse and Neglect. (CIS) statistic about intact families is only gives as "investigated", whereas other statistics are split into "investigated/substantiated/suspected/unsubstantiated": "The alleged roles of mothers and fathers in two-parent families is somewhat different, with fathers being investigated in 71% of physical abuse cases, and mothers in 43% (see Appendix I, Table 5)" (p. 49) The data in table 5 cover only the investigations, not how many were substantiated or suspected.

Divorcing parents could, for the sake of statistics, be considered to form an intact family. Research from other sources show that most false allegations are filed during, or prior, to divorce proceedings (see note iv)

Curiously, though this would have been an opportunity to compile relevant statistics without extra expense, the document makes no mention of divorce. The latest edition of the annual Statistics Canada publication "Family Violence in Canada" claims that fathers committed 71% of the abuse. (See Section 4, "Violence Against Children and Youth")

The writer, quite correctly, begins by stating that "currently [i.e. year 2000] there is no single source for national data on the nature and extent of child maltreatment in Canada" This same phrase is used in the CIS. She then uses seven pages to elaborate on data that she claims to be non-existent. On p. 33 she reports: "Fathers more likely accused of assaulting their children".

She then continues: "Regardless of the type of abuse or the children’s age, children and youth were most often assaulted by their fathers. In incidents involving parents in 1999, children were the victims of their fathers in nearly all (98%) sexual assault incidents, and a large majority (71%) of physical assault incidents."

Though the source for the above likely is the pre-publication CIS, the CIS data do not correlate this. According to the CIS, biological mothers were investigated in 21,063 (66%) cases, 59% of these were substantiated, 25% suspected and 16% unsubstantiated. natural fathers were investigated in 11,367 (36%) cases 60% were substantiated, 21% suspected and 9% unsubstantiated. .Biological mothers were investigated in 19,535 (47%) cases of physical abuse; 31% of these were substantiated, 26% suspected and 43% unsubstantiated. natural fathers were investigated in 17,385 (42%) cases; 37% of these were substantiated, 22% suspected and 41% unsubstantiated. The numbers for sexual assault: Biological mothers 681 (5%) cases investigated, 21% substantiated, 27% suspected and 52% unsubstantiated. natural fathers: 2,101 (15%) cases investigated, 20% were substantiated, 20% suspected and 60% unsubstantiated. Stepfathers: 1,329 (9%) cases investigated, 34% substantiated, 27% suspected and 39% unsubstantiated.

2. U.S. Department of Health and Human Services. (1996) Child Maltreatment. Reports from the States to the National Child Abuse and Neglect Data System (Washington, D.C.: U.S. Government Printing Office, 1998). Seventy-seven percent of perpetrators of child maltreatment were parents, and an additional 11 percent were other relatives of the victim. It is estimated that over 80 percent of all perpetrators were under age 40 and that almost two-thirds were females.

3. U.S. Department of Justice. Bureau of Justice Statistics Murder in Families, CJ143498.1 Data provided by the Child Protective Service agencies. Parents responsible: Virginia (67% mothers, 33% fathers); New Jersey (70% mothers, 30% fathers);Texas (68% mothers, 32% fathers); and Minnesota (62% mothers, 38% fathers); and Alaska (67% mothers, 33% fathers).

4. Growing up in Canada, 1994/95 (Statistics Canada) "Children with single mother more likely to face problems. In all, 41% of children in female lone-parent families had at least one kind of problem identified in the survey, compared with 26% of children in all families. … while poverty can exacerbate the problems faced by children in single-parent families, it is not the only factor that causes them problems."

5. Executive Summary of the Third National Incidence Study of Child Abuse and Neglect [U.S.] (September 1996). "Children who had been physically abused by their birth parents were more likely to have suffered at the hands of their mothers than their fathers (60% versus 48%), while those who had been physically abused by other parents or parent- substitutes were much more likely to have been abused by their fathers or father-substitutes (90% by their [substitute] fathers versus 19% by their [substitute] mothers)."

6. Family Court Reporter Survey 1982 - 88 for England and Wales. A seminal British study confirms that a child is safest when his biological parents are married and least safe when his mother is cohabiting with a man other than her husband. The same report presents concrete evidence that children are between 20 to 33 times safer living with their married, biological parents than in any other family configuration. The rate of abuse is 33 times higher if a child is living with a mother who is cohabiting with another man.

7. Sariola, Heikki and Uutela, Antti (1996). The Prevalence and Context of Incest and Abuse in Finland, [in: Child Abuse and Neglect, 20 (1996): 843-850]. In a Finnish study of over 3,700 ninth grade girls, it was found that sexual abuse by a stepfather was fifteen times as common as incest by a biological father [that is: natural father].

1. Virginia Knox, Cindy Redcross. Parenting and Providing: The Impact of Parents' Fair Share on Paternal Involvement. There was a preference by the mothers for informal support as they were able to draw welfare benefits in addition…. The researchers found that "fathers had to meet certain conditions in order to see their children. At times those conditions became so daunting that fathers just gave up." This report also dispels the myth that increased paternal participation leads to an increase in violence. As fathers became more involved in active parenting, mothers reported a small increase in frequent disagreements, but these did not increase the level of aggression. The disagreements tended to be about child-rearing, a further proof that the impetus for divorce and sole custody is based on the desire to have unobstructed control over the children: "It is also possible that the increase in disagreements occurs specifically because the custodial parents are resisting the non-custodial parents' new parenting efforts" Once again, the presumption of joint custody might act as a deterrent to divorce.

2. Sanford Braver. Frequency of Visitation [in American Journal of Orthopsychiatry].  40% of mothers reported that they had interfered with the fathers’ visitation to punish their ex-spouse.

1. H. Wakefield and R. Underwager in "Techniques for interviewing children in sexual abuse cases" document that more than three fourths of all allegations of child sexual abuse during divorce and custody proceedings are false.

2. Children’s Aid Society of Ottawa-Carleton (1998) Proceedings - 24th Meeting of the Special Joint Committee on the Child Custody and Access. Out of 900 reported cases of child abuse in custody and access disputes more than 600, or two thirds, are unsubstantiated.

3. Gil, David S., Brandeis University, Massachusetts (1985) 61-65% of child abuse accusations are found to be unfounded or false. In contested divorce cases with issues of child custody, the false accusation rate has reached 80%.

Camirand v. Beaulne, Ont. Gen. Div., Aitken, J. (May 15/98) serves as an example of current judicial approach. Though the presiding judge found that the standard of living in the payor’s household was lower than that in the recipient parent’s, there was no finding of "undue" hardship: Regarding father's claim to reduce the Table payments because of "undue hardship" the court noted that he was suffering economic hardship. His after tax take home pay was $3,160 per month. After paying Table support of $1,145 he was left with $2,016 per month. He had mortgage, taxes and upkeep for house of $1,300 per month and bank payments for car loan and other debts of $380 leaving him $336 per month for food, clothing, etc. He used car for, amongst other things, traveling to watch his first 3 children play hockey and needed a house large enough for his new family and for his first 3 kids to stay over. This clearly left him in a condition of economic hardship. …But he and his new wife knew his responsibilities to his first family when they married and had a child and the fact that the standard of living in his new household was lower than that of the household in which his first 3 children lived did not automatically qualify as "undue hardship" such as to reduce the Table support payments. the choices he and his new wife made, while understandable, where within his control and he could not refer to them as the grounds of his hardship in order to reduce the support to the children of his first family.

Yet, when the mother was the payor, the court came to a different decision and reduced the table amount: Darbyson v. Darbyson, Ont. Gen. Div.(May 22/98) Court held the divorce judgement directly or indirectly benefited the children at her expense and also found a disparity in the incomes of the two households as well as the mother's disability. As a result it concluded that using the CSG table would be inequitable.

1. Diversity and Justice: Gender Perspectives. A Guide to Gender Equality Analysis 1998. VI. Gender Equality Analysis in Communications. "For example, you may develop two different information brochures on domestic violence: one relating to victims, largely women, and one relating to abusers, largely men."

The above statement is not valid. Statistics Canada included men, for the first time, in the survey for the year 2000 issue of its annual "Family Violence in Canada". According to this study, 7% of men and 8% of women reported that they had experienced some sort of violence by a current, or former, intimate partner during the previous five years. Those in current unions reported equal (4%) rates of violence. This correlates similar British and U.S.A. studies, as well as results by independent GSS researchers.

U.S. Dept. of Justice, Office of Justice Programs, National Institute of Justice, with support from the National Institute of Justice (April 1997) Partner Violence Among Young Adults . [Series: NIJ Research Preview] A longitudinal study conducted in New Zealand. Three times more women than men (18.6% and 5.7%), respectively) engaged in severe form of violence against their partners. When less severe types of violence were included, the figures were 37% and 22% respectively. Further in the same report: "the preliminary findings of this study do not conflict with those of U.S. epidemiological studies, which survey broad populations, as opposed to clinical studies of domstic violence in which samples are likely to be drawn from shelters or the courts"

2. Diversity and Justice: Gender Perspectives. A Guide to Gender Equality Analysis, 1998. IV. Gender Equality Analysis in Research and Statistics. "The integration of gender equality analysis into the research and evaluation work of the Department implies a departure from traditional research methodology. It does not start with a premise of neutrality, nor limit its investigation to sex disaggregated data. A gender research approach begins with women’s experience as they see it. Both quantitative and qualitative information sources are required. (See Appendix G for a list of sources of statistical information.)"

3. Statistics, Polling and Environmental Scanning. " Since the establishment of the Office of the Senior Advisor on Gender Equality and the confirmation of the Department of Justice Policy on Gender Equality Analysis, substantive gender equality has been an official, public policy priority of the Department. You can affirm this commitment and find ways to ensure that gender is visible in the research agenda, even where gender is not a primary focus. It is the responsibility of the research staff/contractors to undertake gender equality analysis, regardless of time and money available

The Research and Statistics Division provides the Department of Justice Canada with statistical and methodological services. Specifically, the Division designs, produces and analyses public opinion surveys. It collects and analyses justice data from many sources and creates customized statistical reports. The Division also develops databases and produces environmental scans of current issues of concern or significance … Regardless of the nature of these requests, the data that are produced are very useful for decision makers in the Department of Justice Canada and in other agencies. The Statistics, Polling and Environmental Scanning area supports the work of the Director of Research and Statistics who serves as Liaison Officer for the National Justice Statistics Initiative".

On Oct. 28, 1997, Senator Anne Cools said: "In 1991, Anne McLellan, then professor of law at the University of Alberta, wrote a discussion paper for the Alberta Advisory Council on Women's Issues entitled [sic], ‘Women and the Process of Constitutional Reform.’ … Justice minister Anne McLellan wrote: "If, through constitutional reform, divorce became a matter of exclusive provincial jurisdiction, provinces could then legislate comprehensively in the area of ‘the family.’ Some provincial legislatures may choose to impose a presumption of joint custody and require mandatory mediation in the resolution of family disputes…. an increasing number of commentators now suggest that joint custody may simply perpetuate the influence and domination of men over the lives of women." [Source: Senate Hansard, re: Child Custody and Access, Oct. 28, 1997]