The Report, January 6, 2003, pp. 28, 29
Still legal prey at 14
New federal divorce and child-protection amendments anger family advocates
By KEVIN MICHAEL GRACE
The Book of Proverbs says, "Where there is no vision, the people perish." To which it might be added, "And the lawyers flourish." Justice Minister Martin Cauchon's amendments to the Divorce Act to child-protection legislation are either subtly nuanced or fiendishly complicated, depending on whom you ask. As a result, "My profession is going to benefit enormously," observes a Toronto lawyer, Real Women of Canada vice-president Gwen Landolt.
Canada's age of consent for sexual intercourse is 14. Most Canadians are shocked and angered when they learn this. In polls, over 70% say the age should be raised to 16. Mr. Cauchon has decided to keep the age at 14, but [to] add conditions. According to a Justice Department back-grounder, a new category of "sexual exploitation" has been created: "Under the proposed reform, courts must consider whether a relationship is exploitative based on its nature and circumstances, including any difference of age, the evolution of the relationship, and the degree of control or influence exercised over the young person. This new category focuses the court's determination on the conduct or behaviour of the accused, rather than on the consent of the young person to the sexual activity."
"How much simpler it would have been to raise the age to 16," Mrs. Landolt comments. She concedes that the amendment will protect juveniles from pimps but predicts the effects of this law will not be understood for years while the courts thrash it out. She argues that Mr. Cauchon has not acted "because the homosexuals don't want it raised."
There is evidence to support her contention. In a consultation paper dated May 50, 2000, the homosexual lobby group EGALE stated, "While EGALE supports the goal of protecting vulnerabe persons from sexual abuse, we are concerned about the efficacy of raising the age of consent. In addition, EGALE has serious concerns about adverse impacts, including the impact on the goals of fostering autonomy, empowering youth and providing them with the tools to make informed decisions." The paper cites "concerns" that raising the age of consent will drive sex underground, stifle education and have a disproportionate impact on "LGBT youth" (lesbian, gay, bisexual, trans-gendered).
Canadian Alliance justice critic Vic Toews reports, "In a briefing I had with federal justice lawyers, they indicated there were problems with raising the age because some provinces under licence allow people under 16 to be married. I said that's a very exceptional circumstance." He adds, "In the Commons, Mr. Cauchon's parliamentary secretary, Paul Macklin, said there are cultural and social considerations we have to keep in mind. I asked him, 'Can you specify which culture permits the sexual exploitation of 14-year-olds by adults?' He refused to answer. Later, I asked Mr. Cauchon, and he refused to answer."
Despite the nationwide outrage over the John Robin Sharpe case, Mr. Cauchon has refused to ban child pornography entirely. After a Supreme Court of Canada decision, photographic pornography is illegal but written pornography is not, if it is deemed to have "artistic merit." According to the Justice Department, it has now "narrow[ed] ' existing defences of child pornography to a single defence of 'public good.' A person would be found guilty of a child pornography offence when the material or act in question does not serve the public good or where the risk of harm out-weighs any public good it serves."
Mr. Toews comments, "This is simply a repackaged community-standards test. 'Artistic merit' is still alive and well. This NAPBBS is very disingenuous. Why are the Liberals willing to criminalize the advocacy of genocide without any reference to artistic merit or public good, but when it comes to the protection of children there has to be some kind of public-good safe-guard?" He predicts the effects of this law will not be known for years while the courts thrash it out. He is not optimistic. "We're relying on the good faith of the courts to implement this law, but all we've seen from them is the consistent undermining of the will of Parliament."
In announcing his changes to the Divorce Act, Mr. Cauchon made the astonishing statement that "Parents don't have rights, vis-a-vis their children, they have responsibilities." His department calls this the "Child-Centred Family Justice Strategy" and claims it will "minimize the potentially negative effect of separation and divorce on children," "provide parents with the tools they need to
reaching parenting agreements that are in the child's best interests" and "ensure that the legal process is less adversarial; only the most difficult cases will go to court."
To these ends, the words "custody" and "access" have been eliminated, replaced
by "parenting orders." Unified Family Courts have been expanded, and $25 million over five years in new funding to the provinces for family-counselling services has been announced. Mr. Cauchon was embarrassed, however, when it was revealed that his department has budgeted $48 million over the same period on research, advertising and legal training for divorce lawyers on the amendments. "This is a bonanza for the professionals," Senator Anne Cools told the National Post.
Senator Cools is angry the recommendations of the joint Commons-Senate committee to make joint custody the norm have been ignored, but University of Alberta law professor Christine Davies is pleased by the amendments. She explains, "Once you make a dichotomy between custody and access, one person is the winner and the other the loser. That's why people spend a great deal of money fighting over whether there will be joint custody...The name 'joint custody' is not good for children and not good for parents."
Real Women's Landolt concludes that Mr. Cauchon's amendments "reflect the very liberal view coming from Quebec. I do support compulsory mediation after divorce, but the elimination of the word 'custody' is just mindless. The parliamentary committee said it wanted shared parenting, but the feminists screamed 'no,' so the Liberals caved in."
Mr. Toews comments, "I am very concerned that courts are now going to get into discussions of who is the better parent based on the values of social workers. The right to custodial access should be deprived only if there is clear and cogent evidence of harm to the child."
Mr. Cauchon claimed that 43% of Canadian marriages now end in divorce. Mrs. Landolt disputes that figure, claiming it is based on a skewed sample. Nevertheless, children now have no expectation of growing up with two parents in the home. Family therapist, psychologist and Heritage Foundation analyst Patrick Fagan argues that Mr. Cauchon does not understand that "The breakup of a marriage is a grave injustice done by one party to the other. It's probably the gravest injustice any adult will ever suffer. Why would we want to step out of the area of justice in child custody?"
Mr. Fagan declares, "The future of Canada is its children. And when children are rejected by either father or mother, or father and mother reject each other, the children are damaged: they can't reach their full potential. The one family structure that doesn't reject children is the natural family of two parents living together."
He concludes, "The West is disintegrating demographically. But governments are more interested in setting up conveyer belts to facilitate the breakup of marriages."
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The following endnotes are by F4L and not part of the original article.
- The lowering of the age of consent to 14 years is the legacy of Anne McLellan, who pushed that through when she was justice minister.
- That will not do much to prevent teenagers, and especially the younger ones, from contracting a host of sexually transmitted diseases. One has to question the wisdom of a justice minister who pushed teenagers into sexual activities through which they will almost certainly become infected with STDs that are largely incurable and constitute a very serious stress on a healthcare system that is already stretched to the breaking point. Another article in the same issue of The Report, "The only safe sex is no sex", illustrates that due to failed and false sex-education programs North America is in the midst of an escalating epidemic of STDs, especially amongst teenagers.
- Informed decisions would require that teenagers get to know about the extraordinary dangers of becoming involved too early in sexual activities, especially promiscuous and homosexual sex, and that the safest course of action, by far, is for them to pursue a course of abstinence. In spite of the Liberal government's record of pushing through and maintaining legislation that is extremely detrimental to families and children, parents can still help to alleviate the destructive course of action our Justice Department has engaged in during the course of the Chretien regime. Parents merely have to be aware that our Liberal government does not have the best interest of our children in mind and teach children what is right, not what the Liberal government dictates is right. That is just for the interval between the elections. At election time the government can be changed to something that is best for families and children. Mind you, it will have to be a party willing to purge the bureaucracy and to restore democratic power to our Parliament.
- Let's just use a little common sense here. When sex was kept "underground" we did not have an escalating epidemic of STDs amongst teenagers and adults, and the prevalence rate of STDs was then about ten times less than what it currently is.
- To gain an appreciation of what is meant by "artistic merit", read Lorne Gunter's article describing what the RCMP found in Robin Sharpe's house: Child porn must remain taboo Nothing progressive about equating abuse with freedom of speech, Edmonton Journal, 2000 01 30.
- See Irreconcilable differences A new lawsuit says the Divorce Act favours women and violates men's rights, by Joanne Byfield, also in this issue of The Report.
- The Joint Committee's SUMMARY OF RECOMMENDATIONS
The Joint Committee's full report For the Sake of the Children
- Under the sponsorship of the Heritage Foundation, Patrick Fagan produced a good number of reports that provide irrefutable evidence of the extensive destructiveness of divorce and fatherlessness with respect to outcomes in children and in single-mother "families".
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