CHILD CUSTODY AND ACCESS:
FOR THE SAKE OF THE CHILDREN

DISSENTING OPINION-NEW DEMOCRATIC PARTY

Submitted by Peter Mancini, M.P.-Sydney-Victoria

The response by Canadians to the Special Joint Committee study on Child Custody and Access has been overwhelming. The NDP is grateful to the many individuals and organizations who took the time and effort to make their views known. Together, the input, advice and feedback constitute an important body of research for pursuing changes to current legislation dealing with issues of child custody and access. Underlying it, is a clear sense of responsibility to ensure that the best interest of children is paramount.

The NDP is committed to an approach that ensures the best interests of children are made the determining factor in all decisions related to custody and access.

Canadians want a fair and equitable process for dealing with the very painful and difficult issues of child custody and access in divorce. They want their government to play a pro-active role to ensure the best interests and safety of children and parents are met by the system.

The primary focus of the committee has been to develop an appropriate framework to ensure that the best interests of the child are served by the system. Time and time again, Canadians expressed concerns about the current system and its failure to meet the needs of parents and children. The Committee has addressed many difficult issues and the report reflects a great deal of progress and many recommendations that the NDP supports.

There are however, a number of issues that the NDP feels were not adequately addressed by the committee:

Process

There were a number of problems related to the process the committee employed in gathering evidence and hearing witnesses.

The NDP felt that in order for the committee to fully address the serious issues before it, it was imperative for all interested Canadians to have equal access to the committee to have their views heard. In order to achieve that goal we believed that it was essential for the committee to travel beyond urban centres to address the specific concerns of rural communities. We recognized the difference in the nature and quality of services available to Canadians living in rural communities compared to those in urban centres.

While the committee recognized the need to reach out to rural communities, funding was not provided by Parliament for the necessary travel. Consequently a rural perspective is lacking from the report.

Other concerns related to the process include:

• A lack of public notice given to enable all interested parties to appear before the committee
• A perceived bias of some committee members
• The poor treatment and lack of respect shown witnesses by some committee members

These concerns cast a shadow on the quality of the end product of the committee and on the excellent work of the dedicated staff of the committee. The clerks of the committee, researchers and staff worked tirelessly demonstrating the highest degree of professionalism providing invaluable service and support, without which our report would not have been possible.

Poverty

The issue of child poverty is not dealt with in the report despite the fact that child poverty is a serious problem facing Canadian families. Child poverty in Canada has increased by 60% since 1989 and 26,000 more children are living in poverty today in Canada than at this time last year.

No real discussion of a child-centred approach can take place without this issue being addressed.

The NDP recommends:

• That as poverty is a contributing factor to family break-up and domestic violence it must be addressed by all level of governments.
• That the federal government live up to its commitment to end child poverty.
• The federal government address the fact that as long as parents who have custody of children are forced into poverty, then society will accept that the divorce process will punish children of divorce, particularly those from low-income families.

Domestic Violence

The report recognizes that domestic violence is not compatible with the best interest of the child and that where there is a history of violence, joint access and custody may not be beneficial or in the best interest of the child. Parents should not be required to attend mediation in such circumstances. The report clearly identifies that a history of violence be taken into account as a determining factor in assessing the best interest of the child.

Many groups and individuals that appeared before the committee expressed serious concerns about the impact of domestic violence, particularly towards women, on children.

Women are the main victims of domestic violence and face serious safety concerns when leaving an abusive relationship. Moreover, children who witness domestic violence are negatively affected by it.

The NDP recommends:

• The federal government take a leadership role in ending domestic violence against women and children.
• That the safety of parents and children should be considered a priority when determining custody and access, supervised exchanges and visitations.
• That legislation allow a court to require perpetrators of domestic violence to undertake counselling or treatment as a condition of custody or access.

The test when determining proof of violence should be that of the Civil Test based on the "balance of probabilities" and not the criminal test "beyond a reasonable doubt".

Access to Information

The committee has placed a reverse onus on professionals requiring them to release information about the child to either parent unless otherwise ordered. We reject the argument that a greater burden be placed on teachers, doctors and other professionals to determine whether or not they should release information to parents, especially in high-conflict divorces.

The NDP recommends:

• That any parenting plan put forward be required to state that each parent is entitled to pertinent information about the child including medical and school record, etc. There should be a presumption by the court that any such information be shared and that reasons be provided if this is not the case. When the presumption is not followed then the agreement or order should clearly set out exactly what information is available to each parent. These orders can then guide those responsible for releasing records.

Enforcement of Custody and Access Orders

The non-compliance of court orders and the inability or unwillingness of the court to act was a major source of frustration and anger for many who appeared before the committee or submitted briefs. The issue sparked heartbreaking testimony from parents, many of whom had been separated from their children for years, highlighting problems with the legal system in dealing with access enforcement.

Many also argued that parents who have custody and are charged with ensuring the best interests of the child are placed in a difficult position when following an access order that may not be in the best interest of the child.

The major sources of frustration for parents in access disputes centre on the legal system. The lack of legal counsel, delays in obtaining appearance dates for enforcement hearings and the cost of court appearances to enforce access orders, all contribute to the overwhelming frustration and feelings of powerlessness felt by parents dealing with the system.

Often parents wait for months for a hearing, paying the price of being denied access until a court order is issued, in effect penalizing parents who seek to avoid conflict by involving the court.

The need for enhanced legal aid programs is critical. The availability of affordable legal counsel and a speedy court process is essential.

The NDP recommends:

• That the importance of meaningful access to legal aid be acknowledged and that federal and provincial funding be provided to increase the availability of civil legal aid.
• That resources be put in place to ensure the speedy resolution of access denial.