Irreconcilable differences

The Report, January 6, 2003, p. 30

Irreconcilable differences

A new lawsuit says the Divorce Act favours women and violates men's rights

By JOANNE BYFIELD
Whether he was attempting to deflect criticism from the billion-dollar gun registry,^[1] or whether after years of delay he just thought it was time to act, Justice Minister Martin Cauchon introduced changes to the Divorce Act just two days before the House of Commons shut down for Christmas. If deflection was the motivation, he failed. Not only did outrage at the gun controversy continue, the proposed changes to the Divorce Act elicited howls from many within and outside his own party. The Liberal chairmen of a joint Senate-Commons committee that reviewed custody and access expressed great disappointment with the changes. Both Senator Anne Cools and MP Roger Gallaway said courtroom_bias_co95.jpg (26089 bytes) Mr. Cauchon ignored their recommendations to treat both parents equally.^[2]
The only major change is the elimination of the terms "access" and "custody," which most parties agree are inflammatory and contribute to an already adversarial relationship. These will be replaced with "parenting orders." The government will also spend $163 million over the next five years, much of which will go to lawyers and other professionals in the divorce industry, says Mr. Galloway. He says the changes are an "insult to all people who are seeking equality in parental responsibility." Further, he says, "if the minister thinks there will be a change in the [divorce] culture because he changed two words, he is wrong."
   Calgary lawyer Gerald Chipeur agrees. He represents three unrelated and unnamed individuals who are suing the federal attorney general on the grounds that the Divorce Act violates the Canadian Charter of Rights and Freedoms, the Bill of Rights and the U.N. Convention on the Rights of the Child. He says Mr. Cauchon's changes have very little effect on the lawsuit except to "highlight why our lawsuit was necessary."[3]
   Forty-two percent of marriages in Canada end in divorce. The public-interest lawsuit, which does not involve a specific case, claims that the act violates the freedom of association of both child and parent, because the government can remove children from divorced parents without any proof of harm. It cannot do that to parents in an intact family, he says.^[4] That married parents are treated differently than divorced parents also violates the Section 15 equality principle of the Charter.^[5]
   Mr. Chipeur points out that custody orders are based on a judge determining a child's best interest. "A judge can't possibly know what's in a child's best interest. They don't live with them. They just take someone else's word, either a parent or social worker or some other expert." He argues that parents must make the decisions, and if they cannot agree, a mediator—cheaper and less adversarial than courts and judges—should be the rule.
   The act also violates Section 15 because men are treated differently than women, in that mothers are ten times more likely than fathers to win sole custody of the children. Based on the Justice Department's own 2001 analysis of divorce cases, 80% of the time moms won sole custody of the children, in 8% of cases fathers won sole custody, 5% were shared custody and 5% split custody. In shared custody, parents make the decisions regarding their children jointly. It does not necessarily mean the children live half the time with each parent. Statistics Canada released figures for divorce settlements in 2000, which showed 37% of cases resulted in joint custody, versus 53% that were sole custody by moms. Mr. Chipeur says those are self-reported statistics, unlike the analysis by the Department of Justice. The statistics, he says, illustrate that the law, at least in its application, favours mothers over fathers, which is a clear gender bias. This happens, the suit alleges, because of the "extensive use of hearsay and unsworn evidence," a "lax approach to due process" and "an overreliance on independent child assessors."
   Finally, the law violates the U.N. Convention on the Rights of the Child by not ensuring that children are asked their opinion on custody. One of the plaintiffs is a 15-year-old boy who was separated against his will from his father at age eight.
   Roger Gallaway describes the lawsuit as "a fascinating concept." He questions whether it will be successful since the Supreme Court will be making the decision, and "they are into social engineering," he says. He agrees that the act discriminates. He points to court decisions which have ordered non-custodial parents to pay for the university education of their children—something that is not required of married parents. In one case, he says, the "child" was 27 years old. He says he hears from a couple hundred people a month on the divorce issue. "They think they are the exception with their problems. They don't understand that this is how the system actually works for almost everyone."
   Mr. Cauchon described his changes as amplifying the rights of children over parents. "Parents don't have rights vis-a-vis their children; they have responsibilities." Mr. Chipeur says the comment shocks him. Parents, he says, do have the right to make decisions for their children, and Mr. Cauchon's job, both as a lawyer and as justice minister, is to uphold the law.
   Mr. Cauchon also rejected shared parenting as the model in divorce cases. He said that presumption [of joint custody] might not be in the best interest of the child, even though his own government's joint committee recommended it. The National Association of Women and the Law (NAWL) argued that shared parenting exposes women to "control and coercion"^[6] and also that "violence against women must be an overriding consideration in all aspects of family law."^[7] The organization would not comment on the lawsuit because they were busy working on a response to the Cauchon announcement. They appeared to be pleased, however. They titled their press release "In the best interest of children and their mothers."^[8]