The National Association of Women and the Law has posted on its website a substantive critique of Conservative MP Maurice Vellacott's Private Bill C-422.
(...) Mr. Vellacott's Bill may appear laudable to the general public, especially
on a first read -- after all, who does not like the notion of children spending
time with both parents?
However, on closer examination, it becomes clear that Bill C-422 at best
ignores and at worst denies many of the realities of families in this country.
For this reason, the National Association of Women and the Law and
many other women's equality-seeking organizations oppose Bill C-422 just
as we have opposed similar Bills and Motions in the past.(...)
Bill C-422 is cleverly constructed. Its passing reference to family violence,
its delineation of considerations to be made in applying the best interests
of the child test, its establishment of children's rights in its opening
principles all appear, at least superficially, to address concerns raised by
past critics of similar bills.
Appearing as it does at a time of increasing political conservatism and
even fundamentalism, at a time when allegations of parental alienation
against mothers are at an all-time high in family court and when fewer and
fewer women in family court have legal representation, is very troubling,
the Bill offers an approach to dealing with post-separation parenting
conflict that can appear attractive to politicians, the media, judges, lawyers
and the public.
15 See, generally, the work of child psychologist Peter Jaffe.
Indeed, even within the progressive media, there is considerable support
for this approach to post-separation parenting.
In principle, the concept that both parents have ongoing responsibilities
towards their children is unquestionably a good one. Many women
struggle on a daily basis to convince their spouses that they do in fact
have parenting responsibilities with respect to their children, both during
the marriage and after separation or divorce. Unfortunately, as described
earlier in this paper, it is still women who do the majority of housework,
provide most of the day to day care for the children, who arrange their
work schedules to accommodate their children's needs and who take time
off from work to care for sick children.
In fact, post-separation, many women must also ensure that their children
have what they need in the way of clothing, books, toys and such when
they are in the care of their father.
Most mothers would welcome increased parental involvement from fathers
after a divorce, on the condition that it does not threaten their children's
well-being or security.
The National Association of Women and the Law and other women's
equality-seeking organizations support amendments to the Divorce Act
that recognize and respond to the diversities and realities of families in this
country, including the reality of violence against women and children
within the family, as described above. In particular, we support
· maintain the language of custody and access
· eliminate the maximum contact provisions contained in section
· set out meaningful criteria for the best interests of the child test,
including mandatory consideration of:
o violence and abuse within the family (see Appendix One
for the best interests of the child test that appears in
Ontario's Children's Law Reform Act for a model)
o the safety and well-being of the child and the child's
o the practical realities of the child's life, including primary
care, whether both parents have a relationship with the
child, and whether there is a climate of coercion,
violence, or fear
o whether a parent has demonstrated responsible
parenting in the past
o maintaining continuity and stability in the child's care
o the quality of the relationship the child has with a parent
and the effects of maintaining that relationship
o the quality of the relationship between the parents, taking
into account that conflict between parents diminishes the
benefits of contact to children
o the diverse realities and parenting practices of families in
Canada, and the child's cultural and racial heritage
o the child's views where it can be clearly ascertained that
the child has not been manipulated, threatened, or
It is also imperative that the federal government address the right of
women to high-quality legal representation regardless of their economic
status by providing adequate levels of funding to provinces and territories
for family law legal aid. Without adequate legal representation in family
court, even positive law reform as we are suggesting in this paper will
have a minimal impact on women and children.
Amending the Divorce Act and improving access to legal aid would help to
ensure that when women and children leave abusive, violent situations
they are not condemned to continue to live out that abuse and violence
through an "equal parenting" regime that places their safety and well-being
in jeopardy on a regular basis.
Such amendments would in no way interfere with joint custody with equal
parenting time in families where both parents have been actively involved
with the children pre-separation and where both parents are committed to
making the best interests of their children a priority.
Women and children deserve custody laws that respect their right to live
free from violence and the threat of violence. Bill C-422 does not offer this
and needs to be defeated.