DISSENTING OPINION - REFORM PARTY OF CANADA

DECEMBER 1998 - ``FOR THE SAKE OF THE CHILDREN"

Paul Forseth, M.P.

(New Westminster-Coquitlam-Burnaby)

Eric Lowther, M.P.

(Calgary Centre)

Philip Mayfield, M.P.

(Cariboo-Chilcotin)

The Reform members support the themes of the Report as far as they go, but have profound disappointment that some proposed recommendations were not ultimately supported by the government members, and to varying degrees by the other Parties. The Reform members have been an integral part of the Report process from the beginning, and the Report hopefully will heighten a national concern for the intrinsic value of the family. The Reform members support the concept of "shared parenting" as a right and obligation. There are shortcomings that the Committee failed to address in the final version of the Report, due to the ideological intransigence of some Committee members, regardless of the public testimony.

Reformers recognize the seriousness and extent of the national problem of family breakdown in Canada. The consequences of dissolving families bring injury to children and parents, and hurt the quality of Canadian society. The prevalence of divorce and unstable families is a national problem that has not been sufficiently recognized by the present government. Consequently, a more dynamic political leadership is required at both the federal and provincial level to reduce the social forces that mitigate against stable family life, and secondarily, to improve the set of rules under which families may dissolve. Moreover, the needs of children require a bold approach in family-law reform.

We recognize that the existence of the Committee was not initiated by the government, but was only created as a compromise in exchange for Senate passage of amendments to the law governing child maintenance payments. It is recognized that under the federal Divorce Act, parents themselves may divorce, but they do not divorce their children. Also, the balance of parental rights and obligations has not been sufficiently defined in the current Divorce Act. Consequently, in view of the serious political vacuum surrounding the national family-law problem, the Committee Report recommends a change to the historical nature of divorce law.

It is recognized that parental rights and obligations continue after family dissolution. However, it is clear that in too many cases, the legal system poorly serves the interests of children. In view of the outcry in Canada of many sad stories, a new approach that legally emphasizes children's needs over short-term parental wants, has been recommended. Studies and social convention point to the ideal, that children thrive best in a conventional stable two-parent family where there is a loving father and mother. If families dissolve, then a legal climate that facilitates the ongoing involvement of children with both parents in a full and meaningful way, should be the preferred outcome of parenting plans.

Specifically, in addition to the Committee recommendations, the Reform members recommend that:

• The individuals to whom the Divorce Act applies should be more clearly defined concerning who is considered "a child of the marriage". The Act concerning the parenting plans and maintenance payments should be applied only for "children" and not "young adults". Therefore the definition of "child" in the opening definition section of the Act should be amended to read in part... ``is the age of majority or over and under their charge but unable, by reason of illness, disability, to withdraw from their charge. The existing additional terms "or other cause" and "or to obtain the necessaries of life" should be deleted from the definition, as the courts have unreasonably read-in obligations from these terms that have created a fundamental inequality between "intact families" and "divorced families".
• Grandparents of both blood and adoption not be required to seek "leave of the court". The second profound shortcoming of the Committee Report is the failure to recommend a change to Section 16(3) of the Divorce Act, which says "A person, other than a spouse, may not make an application under subsection (1)or(2) without leave of the court". The recommendation recognizes the special relationship and obligation that grandparents may have in the legal parenting plans for children of divorce. Grandparents should not have to first seek permission of the Court, if they choose to file their own Court action for the making of parenting plans. Interestingly, the new Nisga'a settlement in B.C. says its government does not need "leave" under this section.
• The Report forcefully comments upon the obvious historical failure of the federal government to contemplate in family law the pervasive and insidious problem of "false accusations of criminal conduct", the "unreliability of sworn affidavits" that lawyers have deposed from their clients, and the pathetic record of the Courts to defend the Orders they make about child-care arrangements and parent-child contact. The Reform Committee members wanted clear recommendations for action on these points but were unable to persuade the Committee. The Committee would not approve recommendations for improvements to the Criminal Code concerning deliberate false accusations of abuse or neglect, and the need for "prosecutors" to more frequently act to enforce Criminal Code sections 131 & 132-misleading justice, 135-contradictory evidence, 137-fabricating evidence, 138-affidavits, 139-obstructing justice, in family law matters.
• The ethical standards of law societies and bar associations concerning the swearing and filing of affidavits be improved, and codes of conduct be actionable in law.
• Provincial governments review their definitions of "child at risk" in their respective "child-protection legislation", where there are repeated unsubstantiated allegations of abuse.
• The provisions of the "Child Support Guidelines" operate under the principle of reasonableness. Reform Members wanted a clear statement recognizing how the new rules of the "Child Support Guidelines" may operate against the best interests of children. Specifically, the Committee merely recommended that the Minister of Justice undertake as early as possible a comprehensive review. Reform members of the Committee argued for stronger language in this section including the principle of "ability to pay versus demonstrated need".
• Enforcement of parent-child contact terms, as rigorously as child maintenance. Although financial transactions and parent-child contact are not legally tied together, the persistent psychological connection and sometimes real social connection must be recognized. Capricious non-compliance of ordered parent-child contact could be considered a form of child abuse, and treated accordingly during enforcement proceedings. Parents that disturb children through a failure to fulfil their duties under a court order should be penalized.

The long-standing record of inaction to the pervasive complaints on the preceding points from across the country, partially explains the deep malaise in Canadian family law practice. These serious problems on the operational side of the law, require remedy through government leadership with the provinces, the law societies, and the court system. The Committee Report does not go far enough in signalling these problems or suggesting remedies. It clearly is an area for further study.

As the pressures that mitigate against the stability of families are often economic, the Reform members also note the systemic discrimination of the income tax law between "intact families" and "dissolved families". Reform members promote the development of a family or household orientated comprehensive social security system administered through the income-tax system. Additionally, it should have been noted that the rules for delivery of the "child tax benefit" are in some disarray, and in many cases are delivered contrary to Divorce Act court orders.

Recourse to a Court is often the final phase of the disintegration process when alternatives have failed. Unfortunately, the Court is a rather blunt instrument to respond to the unique and changing needs of children caught in a parental conflict. Sadly, some parents are able to unreasonably manipulate the justice system during a divorce proceeding, and thereby communities in general suffer.

Therefore, it must be emphasized that the witness testimony that the Committee heard, highlighted the need for a societal focus on better parenting, family life education, and for much greater alternative dispute settlement services outside of courts. There is great need for a spectrum of preventive and remedial social services, and a renewed commitment from the workers in the system, to speak out for renewal and for quick change from what is currently delivered. When family trouble strikes, governments have a role to provide accessible and affordable help to children and parents.