Should shared parenting be forced? Feminist critique of private bill C-422

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martin dufresne
Should shared parenting be forced? Feminist critique of private bill C-422

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.(...)

Conclusion:
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
amendments that:
· 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
mother
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
otherwise coerced
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.

remind remind's picture

Austrailia looking at their shared parenting laws again

Quote:
In a statement, Family Court Chief Justice Diana Bryant said she supported the review of "how the courts manage the important issues of violence in family law matters. I welcome any suggestions as to how we can improve with system."

Edward Dabrowski, of the Shared Parenting Council, was dismayed, saying: "Vocal minority groups, mostly women, have latched on to a few cases and are now saying the shared parenting laws are leading to situations

that are loaded with domestic violence.

"That is not the case, and if there is to be a review, it ought to be a public review. They should have a full inquiry and let's see what the public, including fathers, think about going back to the old days."

Ms Plibersek's spokesman said she was on leave but would perhaps comment when she returned to work on Monday.

However, NSW Acting Attorney-General Verity Firth entered the fray, saying there "seems to have been considerable problems" with the new shared parenting law in reconciling a child's right to a "meaningful relationship" with both parents "and the protection of the child from exposure to violence".

Ms Firth said there was some evidence that a "very strong pro-contact culture had arisen even where the safety of children couldn't be guaranteed".

Jen Jewel Brown, of the National Council for Children Post-Separation, welcomed the review, saying the new Family Law Act was working as a "wrecking ball for many damaged children and their parents, in particular, as they try to re-establish themselves after the breakdown of abusive relationships".

She said mothers had grown reluctant to raise allegations of violence in the Family Court because they feared being "accused of raising false allegations or not promoting a meaningful relationship with the other parent", which can mean they lose custody or face the entire bill for court costs.

 

martin dufresne

Thanks for that link, remind.

The FR lobby would have you think so, but feminists are not alone in slagging C-422. I have found a detailed critique of this Bill in an excellent letter addressed to Vellacott by the Quebec Bar Association. I've summarized it below (in French).

The president of the Canadian Bar Association Family Law Section has expressed similar reservations, and Minister Rob Nicholson attempted to distance himself from C-422 over the weekend: "Kids' interests No.1 priority in divorce, justice minister says"

But of course, Cons lie.

Dans une réfutation très articulée du projet de loi d'initiative privée déposé récemment par le député hyper-conservateur Maurice Vellacott, le Barreau du Québec souligne les risques associés à l'institutionnalisation d'une présomption de garde conjointe: http://www.barreau.qc.ca/pdf/medias/positions/2009/20090715-pl-c422.pdf

Le bâtonnier du Québec, Pierre Chagnon, note entre autres les problèmes suivants:
- C-422 placerait au second plan le critère de l'intérêt de l'enfant pour lui substituer une présomption d'autorité parentale conjointe et de garde conjointe.
- Cette disposition serait rétroactive et permettrait la contestation de toutes les ordonnances de garde exclusive!
- La présomption souhaitée ne pourrait être écartée par le tribunal que s'il est démontré que l'intérêt de l'enfant serait ***considérablement*** mieux servi par un partage inégal du temps parental. Le Barreau en conclut que le critère de l'intérêt de l'enfant ne suffirait plus à écarter une telle présomption.
- La hiérarchisation des critères d'intérêt de l'enfant proposée par C-422 a le tort de reléguer au second rang l'opinion de l'enfant et la ***violence familiale***, au profit du critère de contact maximal avec chacun des deux parents.
- C-422 inscrirait dans la loi la thèse très controversée de "l'aliénation parentale", qui serait imputée aux parents d'enfants qui se désintéressent du parent non gardien.
- Le Barreau s'inquiète également d'une interdiction pour le parent gardien de déménager sans consentement écrit de l'autre, d'une clause visant à rendre "expéditive" la dissolution du mariage et de dispositions qui rendraient obligatoire la médiation et permettraient l'arbitrage en droit familial, ce qui est prohibé au Québec.

Un texte à lire attentivement pour se renseigner sur ce qui pend au nez des femmes et des enfants si un nombre suffisant de députés appuient C-422, au nom des Droits du Père. La section du Droit de la famille de l'Association du Barreau canadien s'est également prononcée contre ce projet.

remind remind's picture

Interesting is the distancing real do you think, or just another big lie?

martin dufresne

Good question. In her column of today, Antonia Zerbisias reminds us how anti-woman the Cons are but notes that Nicholson was applauded by CBA members when he expressed reservations about the Bill:

Divorce law needs updating, but Tory's proposal is not the answer

August 21, 2009
Antonia Zerbisias
One of the great things about Stephen Harper's minority Conservative government is that its hidden agenda isn't really hidden.

Take, for example, last year's Bill C-484, ostensibly all about protecting "unborn children" but definitely not, oh no no no, about limiting women's reproductive choices.

Until, of course, on the eve of the election, when it was killed because the Conservatives didn't want "to reopen the abortion debate." That, months after the bill had passed second reading.

Then there's the pesky women's equality thing.

In 2006, one of the first things the Harpies did was strip the word "equality" from the Status of Women's mandate - as if ensuring women's equality wasn't the ministry's raison d'être.

Then, last year, only after howls of outrage from feminist groups, did they sneak it back in. Not that it made a difference since they had already cut the funding necessary to advocate for equal rights.

Now comes C-422, An Act to Amend the Divorce Act.

It's a private member's bill introduced in June by one of the most socially conservative backbenchers in the government, Saskatoon- Wanuskewin's Maurice Vellacott. He is past co-chair of the Pro-Life Caucus, an advocate of creationism in education, a vocal opponent of gay rights and, lest we forget, so harsh in his criticism of former Conservative-converted-to- Liberal MP Belinda Stronach, that the word "prostitute" came up in his diatribe.

The good news is, private member's bills are rarely passed.

The bad news is, research shows that they influence government policy - and, as the record shows, often reflect party policy.

Just so you know where this is all coming from.

The main aim of C-422 is to automatically award "equal parenting" rights to both parents in a divorce decision because, as research shows, children have better outcomes when both mother and father are (positive) presences in their lives.

In other words, judges should presume that equal parenting is in the "best interests of the child," unless proven otherwise.

Which, at first glance, sounds great. Who can argue with the idea of an engaged, loving and caring father remaining involved in his child's life - and not just as an every other weekend, cheque- writing daddy?

I see the men on my street and in my neighbourhood so very much part of rearing their children, doing much more than manning the barbecue and ferrying them to hockey practice.

But marriages break up.

Many do so amicably enough, with couples working out their parenting responsibilities without dragging armies of lawyers into the courts which, by the way, now award joint custody in almost half the cases.

I also know great fathers who have struggled to maintain their relationships in the face of angry exes, who use the kids as pawns, cut them off from their extended families and worse.

Fortunately, such women are in the minority.

But C-422 will cause more problems than it will solve, say women's and legal groups such as the Quebec Bar Association.

In fact, last month at the annual meeting of the Canadian Bar Association, federal Justice Minister Rob Nicholson was cheered when he hinted that, personally, he wasn't 100 per cent behind the bill. (...)

 

Personally, I think the Cons are in a wait-and-see mode. All the more important to spread information and generate contrary feedback, based on children's and women's real-life experiences. Let your MP know how you feel. And feel free to comment on Zerbisias' article: no sense in letting the patriarchal lobby hog that space...

 

remind remind's picture

Thanks for the heads up martin, good article by antonia, left a message and voted agree/disagree to everything that needed it

HeywoodFloyd

FWIW, I've asked my contacts to consider not supporting this bill.

remind remind's picture

Thank you for that heywood, it is much appreciated and worth a good deal.

Denis Pakkala

The bias of Martin is evident.  Nobody should have to live with violence, before and after divorce:  including men, women and their children.

There have been many studies in the past 10 years that have refuted feminist mythology that men are aggressors and women are victims.  Partner violence is nearly equal between genders and is often reciprocal, with women receiving more severe injuries in the most severe cases (very small percentage).

If a judge were confronted with a very clear case that a woman (or man) had been physically assaulted and has injuries as evidence then the presumption is easilly rebutted.  However, in the majority of cases of partner violence, it is simply a matter of he said / she said.

We should be supporting both parents and treating them equally after divorce and providing mediation and services for high-conflict cases.

The feminists and lawyers don't want mediation, they want all conflicts to be played out in court where they are generously compensated.

Supporting both parents to provide "cash and care" to their children after separation means an over-haul of the tax, benefits and child support systems.

We need to look at the costs of parenting for each parent, how much they share care and each parent's income.

We need to:

1. see fathers as an INdisposable part of childrens lives   

2. when parents separate, make them explain why they can't both play substantial roles in their children's lives, rather than make them justify why this should happen. 

3. review the tax, benefits and child support systems which are blocking this kind of sharing of care after separation

4. provide proper services for separated and separating families, especially in high conflict cases.

5. Avoid court whenever possible, because it increases conflict rather than decreases it

 

Denis Pakkala

Peter Jaffe has been exposed for his gender bias.

 

From Don Dutton 2006

 

In a recent issue of Journal of Child Custody, Michael Johnson and I engaged in a debate regarding the use of what I call the "gender paradigm" (Dutton and Nicholls 2005)in custody disputes. The gender paradigm, as I tried to point out, is the collective set of beliefs in the domestic violence field, that intimate partner violence is exclusively or predominantly male perpetrated, when the research data say otherwise. I criticised two books (Bancroft and Silverman 2002; Jaffe, Lemon et al. 2003)and several research papers connecting domestic violence to custody assessments for promoting this view. I will not restate those arguments here. The interested reader can find them, and Johnson's response to them in Journal of Child Custody, 2005, volume 2(4). In his "brief reply" Michael Johnson says he "never denied" that women can be intimate terrorists. I suppose technically that's true. What he did do though was, as I said in my response to him (Dutton 2005) was to create two categories in the literature; "patriarchal terrorism" and "common couple violence" that deflected attention from female initiated intimate partner violence( IPV).  Although Johnson claims to have revised this view in later papers of his, I was responding to his rebuttal in the above volume, in which he re-asserts that "intimate terrorism (also known as domestic violence, etc) is, indeed, primarily male perpetrated". I have reviewed evidence that shows this view is no longer supported by recent research (Dutton 2005; Dutton 2006) and hence can be especially misleading as a "mindset" for custody assessments. I cannot see how Johnson has anywhere made it clear that by "intimate terrorism" he intends the assessor to apply this term to both men and women, especially given his statement above. He still argues in his "brief reply" that intimate terrorism is "largely male perpetrated and related to gender attitudes". I will only briefly re-assert that the evidence shows IPV is perpetrated more by women (Archer 2000) including the severe form (Stets and Straus 1992). Johnson's inability or unwillingness to comprehend these data is a pure example of the belief perseverance I have already described (Dutton and Nicholls 2005).

    Apart from IPV directed to a partner, feminist theory also ignores violence by women directed at children, probably because such violence falls outside the political view of being a response to an oppressor male. However, violence and abuse toward children is of central importance to custody assessors, more so than the varieties of IPV described by Johnson. In that respect, custody assessors should be aware of the largest study of child abuse and neglect that, to my knowledge, has ever been conducted. This is a study of 135, 573 child maltreatment investigations conducted by Health Canada and Published by the National Clearing House on Family Violence (Trocme and al. 2001). The study designates the abuse type as physical abuse, sexual abuse, neglect, emotional maltreatment and "multiple categories". The investigations are further divided into substantiated, suspected and unsubstantiated categories. Substantiation rates do not, in general, vary by gender of perpetrator and run from 52 to 58%. Biological mothers (as compared to biological fathers) are the more likely substantiated perpetrator of physical abuse (47 vs. 42%), neglect (86% vs. 33%), emotional maltreatment  (61% vs. 55%) and multiple categories (66% vs. 36%). The biological father is the most likely perpetrator of sexual abuse (15% vs. 5%). For physical abuse the substantiation rate was 6% higher for fathers, bringing the total perpetration rates to equality ( Table 4, page 49). These data, based on a huge nationally representative sample, tell a very different picture than that presented by Jaffe et al, Bancroft et al, or Johnson, all of whom over rely on shelter samples to draw erroneous conclusions about risk to children. Johnson concludes by saying "assume that all violence is intimate terrorism (which is "largely male perpetrated and related to gender attitudes") until proven otherwise". Compare this to the American Psychological Association Guidelines for forensic evaluation summarised in Weissman and DeBow (2003). The forensic evaluation must begin with a "cognitive set and evaluative attitude" of the assessor that is "neutral, objective and detached" (p. 39). Jaffe et al, Bancroft et al and Johnson make adherence to this principle impossible.

Maysie Maysie's picture

Denis this is a progressive discussion board and this is the feminist forum. I'm suspending you. If you have any problems with that, please email me or the other mods at

bigcitygal(at)rabble(dot)ca

michelle(at)rabble(dot)ca

oldgoat(at)rabble(dot)ca

martin dufresne

I won't even start addressing that traditional men's rights conceit that women are more violent than men.

The salient point here is the necessity for judges to be able to take violence into account as a primary consideration in upholding the child's best interest, regardless of which parent is the assaulter.

As it stands, C-422 moves that consideration into a secondary position, along with the children's own desires, making both second to the so-called principle of maximum contact with each parent, which is clearly predicated - I read Father-Right literature - on some men's desire to escape financial responsibility by taking custody and actual parenting work out of the ambit of divorce legislation, regardless of consequences to children.

 And BTW, Mr. Pakkala, I will take Peter Jaffe's expertise anytime over the claims of someone who writes, as you do here:

...Many states now incorporated into their family law statutes guidelines that discourage or prohibit violent parents from obtain custody of their children (National Council of Juvenile & Family Court Judges (1994). These guidelines are good in theory, but when improperly applied may result in substantial harm to children and families...

Ewww...Undecided

 

Tommy_Paine

 

Just some clarrification on this.  I thought Divorce law, Family Law, was provincial juristiction?  Obvously, I was wrong, and obviously, they overlap.

Just how does this all work?  (or, I guess, not work?) 

 

martin dufresne

Divorce comes under federal jurisdiction; even if decisions are taken in provincial courts, they apply federal legislation, guidelines and jurisprudence in divorce cases. (Separation is another ball game, with Quebec legislation being different than that of the ROC so I won't venture into that.) Canada's divorce law was adopted in 1968 and amended in 1985. You will find an excellent summary of its evolution and of necessary reforms - NOT those advocated by Mr. Vellacott - in the NAWL brief referenced in the OP above and on the Justice Canada website.

 

G. Muffin

I'd be very interested to read the study by the National Clearing House on Family Violence but it seems their website is not entirely available right now.

Tommy_Paine

Ah.

Thank you.

But even after reading, I'm still confused-- I note the extract moved right from Federal stuff to Ontario custody stuff, and to be honest, I still get a cold sweat when I read all the legal stuff and realize I once had my head in the maw of that beast.

Almost anywhere I go, and the subject of divorce, separation and custody comes up,  there's universal agreement that the system sucks. 

Then the fur flies about exactly how and where it sucks.

Maybe we'll eventually concoct a system that is so frightening and expensive that people will smarten up and conduct themselves so they can avoid the whole thing.

 

 

 

G. Muffin

Tommy_Paine wrote:
Maybe we'll eventually concoct a system that is so frightening and expensive that people will smarten up and conduct themselves so they can avoid the whole thing.

Are you referring to avoiding litigation or to avoiding divorce altogether? 

martin dufresne

In response to Tommy_Paine, child protection is a provincial jurisdiction.

Since the F-R lobby is attempting to redefine an undefined child's best interest test as forcing maximum contact with both parents and control by the non-custodian one, concerned stakeholders have to look to other jurisdictions, either in Canada or elsewhere, to see how this test has been interpreted recently. Hence the reference to the Ontario child protection legislation, or even to the Australian legal system (remind's hyperlink in post #1).

Our legal system may suck as it stands - especially because of increasing restrictions on access to legal aid in non-criminal matters - but the alternative is letting any contest be won by the most intransigent of both parents. There are no "alternatives" to justice, and the current war by the F-R lobby is a patriarchal response to the vastly improved federal child support tables and guidelines adopted in 1997. This followed the famous Thibodeau Supreme Court decision about the taxation of child support payments, that brought into light the shoddy treatment of custodial parents by non-custodial parents, the courts and the State.

In an interesting essay, Bruce Porter of CERA situates this decision in the context of poor people's struggles to obtain justice in our society.

 

G. Muffin

martin dufresne wrote:
Since the F-R lobby is attempting to redefine an undefined child's best interest test as forcing maximum contact with both parents and control by the non-custodian one ....

I'm not a big fan of the fathers' rights groups either but do you think this is a fair characterization of their position? 

Tommy_Paine

G. Pie wrote:

Tommy_Paine wrote:
Maybe we'll eventually concoct a system that is so frightening and expensive that people will smarten up and conduct themselves so they can avoid the whole thing.

Are you referring to avoiding litigation or to avoiding divorce altogether? 

Whatever the right answer is, that one.

 

Laughing

Trying to avoid litigation, certainly. Obviously, by making the system prohibitively expensive or intimidating, we'd actually be turning the clock back to where people stayed together in misery.   I've seen that in other households when I was a kid, and that's not hardly a healthy alternative to divorce.

The problem the way I see it is we need flexibility to cover all the things that go on,  but the more flexibility we have, the more avenues for spitefull parties to make a bollocks of it open up.

I might suggest that in cases where custody does become an issue, cost of such litigation  undeniably impacts "the best interests of the children".  The best interests of the children are not represented by who can afford the meanest lawyer, or decided because a person cannot afford such litigation.  I've seen that happen to parents from both genders.  It's not only sad, it's infuriating.

I'm not convinced that increases to legal aid is the solution here. 

Maybe a fully socialized legal system is.

 

 

 

 

martin dufresne

G. Pie - I'm not a big fan of the fathers' rights groups either but do you think this is a fair characterization of their position?

Yes. And if the Bar associations say so too, I don't think it is any exaggeration.

remind remind's picture

more than fair imv.

martin dufresne

A new manipulative PR gimmick from the fathers lobby: linking its attempt to force joint custody on Canadian mothers - a great way to gut entitlement to child support and mobility - with a Terry Fox-like run across Canada, guaranteed to generate good community press all along the way with no examination of the substantive issues. A father running... how ironic a symbol of this lobby's priorities...

 

At the same time the organizers are attempting to label as "paternal alienation" sole custody or attempts by children or mothers to resist paternal violence or harassment.  

 

(One of many learned critiques of so-called "Parental Alienation".)

 

Please try to make waves when this RW roadshow rolls into your community.

Michelle

Parental alienation exists.  It does no good to women to pretend it doesn't just because a lot of men falsely accuse women of it.  The fact is, a lot of men really DO attempt to alienate their children from their mothers by speaking ill of them and encouraging their children to disrespect them, usually as a way of getting back at women who leave, in order to maintain control over the mother.  It's another aspect of controlling and abusive behaviour.

A counsellor at a family centre that specializes in divorce issues here in Toronto told me that most of the cases of alienation she has seen that have merit (as opposed to ones where it was claimed but unfounded) involved male perpetrators, not female.

Parental alienation exists, and it's horrendous, for both the child and the alienated parent.  Don't let Father's Rights freaks control the message.  Everyone knows some separating or divorcing couple or other where one of the parents says horrible things about the other parent in front of the child, and tries to turn the child against the other parent.  It's wrong no matter who does it, but we women are often victims of it, and it doesn't help when feminists try to claim that it doesn't exist simply because father's rights types falsely accuse a lot of women of engaging in it.

Father's rights freaks also claim that women assault men as much as men assault women.  That doesn't mean assault doesn't exist.  It just means they're lying about women.

martin dufresne

I totally agree, Michelle. If one looks at Marathon of Hope hopeful Dave Nash's page, here is what he focusses on as "parental alienation":

"All Safety issues aside, any Parent, Mother or Father, who would try to take their children away from the other parent during a divorce, cannot truly say that they love their child. Their actions speak much louder than their words."

So their message is clearly sole custody = parental alienation. They try to kill two birds with one stone: terminating the entitlement of any primary caretaking parent and her children, and appropriating the meaning of parental alienation as something men would be victims of instead of (usually) perps.

 

Michelle

Oh hey, believe me, I agree with you on that!  But the people I've talked to about parental alienation certainly don't define it the way Father's Rights groups do.

Although I would also say that, if there are no safety issues (and I don't just mean violence - I also mean controlling and manipulative behaviour as a safety issue), then I can agree with the statement that any parent who tries to take their children away from the other parent does not have the child's best interests at heart.

martin dufresne

Surely you don't agree with Nash's suggestion that merely requesting custody - which is usually simply acknowledging the existing distribution of parental responsibilities -  is "trying to take their children away from the other parent"?

 

Michelle

Well, I don't know.  I didn't automatically assume that it was my right to have sole custody when I separated from my husband.  Why would I have?  Why would anyone assume that, if there were no issues of abuse, whether physical or emotional, and if the other parent is interested in being involved in the child's life?

That's what joint custody is for.  Why shouldn't judges award joint custody unless there is a compelling reason not to?  Joint custody doesn't mean exactly equal time - one parent often still has the child for most of the time and is awarded child support, while the other parent has regular access, which goes far enough in "recognizing the existing distribution of parental responsibilities" without completely stripping the other parent of their entire legal status as the child's involved parent.

I believe you posted this in another thread - contrary to popular belief, currently, when men fight for sole custody, they often get it.  Most women who get sole custody either get it because they could prove abuse, or because the men didn't oppose it, right?

So the law as it stands, which does not assume joint custody as a default, is actually being used AGAINST women whose ex-husbands try to fight them for custody.  Right?

Timebandit Timebandit's picture

Joint custody isn't necessarily a bad thing even when one parent has been the primary caregiver before the breakup.  I've known quite a few hands-off dads (not abusers by any means) who suddenly had to learn to be hands on and actually became better parents because of it. 

martin dufresne

Response to Michelle: Right; to which I would add that some judges still look at a child's best interest and at what has been the actual distribution of parenting tasks when deciding a contested custody.

My point - and that of feminist organisations - is that a joint custody presumption could ALSO be used against women in other ways, even more harmful according to the people who deal with these kinds of strategies on a daily basis. The NAWL paper explains this well.

Key points:

Child support - contrary to what you wrote, it is not self-evident that the one parent still caring for the child(ren) most of the time would remain entitled to child support. Despite what is on the books, this support remains mostly tied to acknowledgment of physical custody, a feature that is to be taken out of the law if C-422 is adopted. I monitor F-R sites, and posters are adamant about beating child support orders and forcing the sale of the family home through the joint custody presumption. Divorce legislation by-laws already state that child support is to be drastically reduced or even bypassed altogether if a parent commits to taking on at least 40% of parenting time, something that just isn't happening in joint custody couples or jurisdictions that have made JC a presumption. Will women have to relitigate constantly to establish that Dad is slacking off and that the children are suffering?

Burden of proof - Placing on the primary caretaker a burden of proof that she is not a "parental alienator" when attempting to maintain current parenting arrangements is unreasonable and unfair, punishing the parent who has been doing the most work; this would be done in the name of the current myth that most men have now become committed fathers doing 50% of the parenting tasks, a claim that just isn't borne out in most families, esp. working class households. Continuing conflict - Many studies have established that joint custody required extraordinary collaboration between parents, as compared to the usual sole custody/visitation arrangement, which - contrary to what you wrote - DOESN'T "completely strip the other parent of their entire legal status". Making JC a presumption ignores the reality of divorces that are often irremediably acrimonious, even if not caused by previous abuse. Holding women's and children's welfare to the standard of proving beyond a shadow of a doubt a parent's abuse and continuing risk is too high a treshold for justice and for safety. It would run against a tradition of maintaining a lower treshold of proof when children's protection is at stake.

Fundamental freedoms - Judges are weighing daily non-custodial parental rights against that of a caretaking parent to sometimes move away from a community, in order to find a job for instance. Case law has acknowledged custodial parents' right to mobility, although any non-custodial parent is still able to paint such decisions as antagonistic and to stalk, sue and threaten to strip the other parent of custody. A joint custody presumption would practically terminate this right to mobility.

I could list other arguments but the Quebec Bar Association and other specialists make these points better than I could.

My main point is that there is presenty no automatic assumption of anyone's right to custody, simply a focus on judges' ability to arbitrate in terms of the children's best interests, instead of having to presume that sole custody is necessarily abusive and joint custody necessarily a better solution.

Response to Timebandit: No, it isn't. But it can be when it is forced upon unwilling parents or for other reasons than a genuine interest in children's welfdare.

 

martin dufresne

New press release from one of Quebec's domestic violence shelters coalition:

 

La Fédération de ressources d'hébergement pour femmes violentées et en
difficulté du Québec est vivement préoccupée quant aux visées et aux
impacts du projet de loi C-422 - Loi modifiant la Loi sur le divorce
(partage égal du rôle parental) et d'autres lois en conséquence déposé à
la Chambre des communes le 16 juin 2009 par le député conservateur
Monsieur Maurice Vellacott de Saskatoon-Wanuskawin.

Nul ne peut être, de prime abord, en opposition avec la notion de
partage égal du rôle parental dans un contexte normal de séparation
entre conjoints. Mais le projet de loi C-422, par plusieurs dispositions
proposées, occulte bon nombre de contextes parentaux dans lesquels
évoluent les familles canadiennes dont celui de la violence conjugale et
familiale. Nous sommes très inquiètes des impacts que pourraient avoir
ce projet de loi pour les femmes et les enfants victimes de violence
conjugale.

À l'instar, du Barreau du Québec, de l'Association nationale Femmes et
Droit, du Réseau des femmes ontariennes pour la garde légale des
enfants, de la Fédération des associations de familles monoparentales et
recomposées du Québec, du Regroupement des maisons pour femmes victimes
de violence conjugale et de la Fédération des femmes du Québec, la
Fédération de ressources d'hébergement pour femmes violentées et en
difficulté du Québec s'oppose à ce projet de loi qui établit comme
prémisse de base à l'examen judiciaire une « présomption en faveur du
partage égal de la responsabilité et du temps parental » en remplaçant
la notion de « garde d'enfants » par celle de « temps parental ». Nous
craignons que le projet de loi C-422 ne permette à des conjoints
violents de continuer à exercer davantage leur contrôle et leur violence
sur leur ex-conjointe ainsi que sur leurs enfants.

La Fédération a fait connaître son avis notamment aux chefs de partis à
la Chambre des communes, aux porte-paroles en condition féminine de ces
partis de même qu'à la Ministre d'état à la condition féminine,
l'Honorable Helena Guergis. La Fédération demande aux partis
d'opposition à la Chambre des communes de s'opposer à l'adoption de ce
projet de loi qui met à risque la sécurité des femmes violentées et
leurs enfants au Canada.

On peut consulter l'avis de la FRHFVDQ sur le projet de loi C-422 en
ligne à
http://www.fede.qc.ca

 

Michelle

I totally agree with looking at which parent provided the most care during the marriage/cohabitation and using that as a guideline to decide which parent will be the primary caregiver.  Because as Timebandit says, often parents will step up to the plate when they have their children in their own homes themselves, but since it's usually not feasible for children to spend equal time at each place, they should probably stay with the parent who provided the most care before the separation.

That doesn't preclude giving parents joint custody unless there is a compelling reason not to do so.

I also have no problem with child support being reduced or eliminated if the other parent is spending more than 40% of the time caring for the child, unless the primary caregiver has a much lower income (often the case) or can be shown to be spending the most money on clothing and food and supplies for the child.

I was under the impression that currently, in cases of shared custody, the judge takes into account both parents' incomes when assessing child support, and if one parent is making significantly less than the other, they subtract the table amount of child support owed by the poorer parent from the amount owed by the richer parent, and the difference given to the poorer parent.

Does that not happen?

kropotkin1951 kropotkin1951's picture

That is what is legally supposed to happen Michelle. What should never be missed in this debate is that the vast majority of separating and divorcing couples do so without entering into protracted litigation and are respectful to each other when they are in front of their children. 

The problems that come to the forefront at separation are often the result of one of the partners being unreasonable.  I think it is unhelpful to use the fact that women are the victims most often in these kinds of pissing matches as a reason for drafting gender based laws.  The laws need to be written to cover off the circumstances that are actually at play not what most often happens.  Just because the man is more often the asshole doesn't change the fact that it is not always the man that is being the asshole.  Same sex marriages highlight the problems of having laws that have a bias toward one gender [I know that bias is still towards men] and that the solutions have to address behaviour because that is the relevant issue not gender.

Michelle

I agree with everything you posted.

martin dufresne

There are so many angles to this.

One of these is that women often "give away the store" (Lundy Bancroft's expression), i.e. sacrifice all their assets when faced with the threat of a custody struggle, so avoiding litigation is a two-edged sword.

Also, the kind of arrangements primary caretaking parents come to often involves settling for no child support against a promise of shared parenting.

When the other parent doesn't come through or abuse issues surface or resurface, the primary caretaking parent is hard-pressed to protect the children and obtain justice, especially if s/he has sacrificed assets and is ineligible for legal aid (thank you Mr. Harper).  

Another problem is the ambiguity in the terminology. People use interchangeably the expressions "joint custody", "shared parenting", "sharing of parental authority" so the devil is in the details of Bills such as Mr. Vellacott's. And when abuse is an issue or disagreements will not be resolved with pleasantries about collaboration, questions such as who decides become crucial. This is when the FR agenda shines through bright and clear. Most of these men are dead set against female-initiated divorce and would rather that women not have the liberty to escape their control, children's interest be damned. This is why we cannot fudge the issue of the entitlement that must go along with the parenting work in the situations where one of the parent has been doing and most probably will go on doing - usually with the other parent's assent - more than 50% of the actual child-rearing.

I recommend Lundy Bancroft's book The Batterer as Parent to elucidate what is actually going on in DV situations. There are far too much of them to be dismissed as a footnote. These children and women deserve a fuller protection by the courts and the State, not a privatizing of family conflict, which is what the FR lobby wants to see happen by instituting "shared parenting" and taking custody and child support determinations out of the law.

 

kropotkin1951 kropotkin1951's picture

I have read Bill Eddy's book on Personality Disorders in High Conflict Legal Disputes and it is fascinating.  His premise is that in most of the very difficult legal battles one of the parties has a personality disorder. As a society we need to be taking some of these facts into consideration.  

http://billeddy.com/books.htm

I think as well that some of the mediation programs he advocates are very useful.  I have seen up close and personal court battles where the participants are clearly suffering personality disorders and they are using the courts as a weapon.

http://www.highconflictinstitute.com/index.php?option=com_content&view=a...

What is New Ways for Families™?


New Ways for Families is a structured parenting skills method with short-term counseling to reduce the impact of conflict on the children in potentially high conflict cases. It can be used whenever a parent or the court believes one parent needs restricted parenting (supervised, no contact, limited time), at the start of a case or any time a parent requests restricted parenting – including post-judgment litigation.


This method emphasizes strengthening skills for positive future behavior (new ways), rather than focusing on past negative behavior – while still acknowledging it. It is designed to save courts time, to save parents money, and to protect children as their families re-organize in new ways after a separation or divorce, for married or never-married parents. There are four basic steps:

 

 

No matter what it should always come down to the best interests of the children.  The only problem is someone has to sort through the conflicting stories to determine what that means in any given case.  If there is a history of abuse then it is obvious the best interest of the children is to protect them from the abuser and the abusers "rights" are a distant consideration to be taken into account only if they have proven that they have sought and received adequate counselling in relation to the abusive behaviour.  Blanket solutions in difficult situations are dangerous because there is rarely a one size fits all remedy.

 

kropotkin1951 kropotkin1951's picture

To be clear I disagree with the Bill set out above for much the same reasons as the CBA. Reverse onus clauses are often problematic in court cases because proving a negative is one of the most difficult things anyone can attempt.  I am merely trying to add ideas that might be far more beneficial than making more litigation in difficult cases almost inevitable.  

martin dufresne

One early promise of the FR lobby was that joint custody would drastically reduce litigation. Research in the jurisdictions that have attempted this formula - and in some cases rolled it back as did California, 20 years ago - shows the reverse. Relitigation is common when the benchmark of taking into account primary caretaking and acknowledging actual physical custody flies out the window. A common pattern was that fathers used joint custody to establish a presumption of caretaking skills, regardless of parenting time invested after separation and by whom (it was often by dad's new partner), than went for sole custody after a few years, against mothers that no longer had the entitlement or resources to defend themselves.

 

 

Loretta

Are there any legal mechanisms that judges can employ when a non-custodial payor parent repeatedly tries to wiggle out of their financial commitment -- how many times is a judge willing to deal with the same situation over and over again? I see this kind of treatment happen to other women I know and it's currently happening to me, for the third time in 10 years.

This FR movement is absolutely dangerous, bogus and undermines so much of what women have accomplished, collectively, in the area of family law. They use the same kind of illogical rationale common among those on the right -- nonsensical twisting of information to manipulate public opinion by the use of emotion. 

G. Muffin

I'm not sure where you are, Loretta, but in BC we have the Family Maintenance Enforcement Program.  You can register your maintenance order with the program and they will take care of it for you.  They have the right to garnish his wages, scoop his tax refund, etc., whatever it takes to keep him current.  You don't have to put up with this bullshit.

remind remind's picture

She lives in BC, GPie.

And the FMEP, is not the good thing anymore that it was supposed to be.

 

Loretta

My ex is registered with FMEP but they only enforce the child support portion of court orders, not post-secondary sharing of costs, not annual reporting of income, not increases based on increases in income, etc. There main purpose is to get enforcement so that the government can reduce paying social assistance to sole mothers and their children. I've been asking my ex for the last 18 months to provide his income tax information (this is included in our order), finally filed a notice of motion in court and received the desired result in about 2 months. Now that I have the information that shows his income has gone up in each of the last 3 years, he has filed to cancel the order. Our last child together is in post-secondary...I'm so freaking sick of this.

He has resisted everything in our agreements, with the sole exception of providing exactly to the letter of the law in regard to child maintenance. He has not been involved in the raising of our children through his own choice, and he has balked every single step of the way when it comes to doing things included in our court order but which aren't easy to go after him for -- like taking on the cost of braces (and then being paid back by two insurance companies)...

I have handled all of my previous legal issues with him without legal assistance and without the help of a family justice centre (everytime I have needed their services, there is no-one filling the position in our nearest courthouse). I'm not doing that this time and hope that my lawyer will be able to make use of some of his history to show a pattern. I wonder what the FR people would thing about that. I should write them.

Thanks, G. Pie and remind (talk about the sandwich generation, eh, remind?).

remind remind's picture

yep, been there.

Hopefully the judge will back date 3 years and give you the increases that should have happened 3 years ago with interest.

G. Muffin

I am very disappointed in FMEP.  I would have thought they would enforce all aspects of maintenance orders, e.g. providing income tax information.  I thought that's what they were for. 

martin dufresne

We're with you, Loretta. Do not hesitate to ask organizations such as NAWL or West Coast LEAF for guidance and/or a feminist lawyer in your area. They may even be able to refer you to a local group meeting and sharing stories and advice. The lesson from the fathers' rights lobby is that there is strength in numbers.

 

remind remind's picture

It is a changed beast nowadays GPie, and they also take a portion of the monies to fund themselves.

Michelle

What, seriously?  You mean they take a portion of the child support money?  Surely not!

G. Muffin

Ridiculous.  If anybody should be funding the FMEP it's the deadbeats who thumb their nose at court orders. 

martin dufresne

Civil servants answer to governments - and there is a long history of progressive measures being diluted and shelved after a government has bowed to public pressure and agreed to stand up to abusers. The government is only looking at its own interest - paying less welfare. Which is why we go on needing a popular movement to denounce and oppose the war against women, through "poor law" initiatives, etc. In Ontario, the Income Security Action Centre is doing good work. In B.C.?

Loretta

martin dufresne wrote:

We're with you, Loretta. Do not hesitate to ask organizations such as NAWL or West Coast LEAF for guidance and/or a feminist lawyer in your area. They may even be able to refer you to a local group meeting and sharing stories and advice. The lesson from the fathers' rights lobby is that there is strength in numbers.

Thanks, martindufresne, and all of you. I will check out LEAF and NAWL (can you tell me more about the latter?). I don't think BC has anything comparable to ISAC but since I live in the hinterland (the once-lauded "heartland" or, as many of us put it, beyond Hope), I'm not sure.

I have engaged a lawyer and feel better having an ally with the kind of knowledge and experience that I don't have (although I have appeared in court on my own behalf several times regarding this situation).

The FR movement is misogyny, unadulterated misogyny. It may have some allies that support it on the basis of appeal to emotion but it is designed to work at undoing all of the progress that has been made in the courts around women's equality issues. No wonder those men sound so similar to those who are anti-choice and pro-gun. It's all the same rhetoric with the same objective.

Thanks again...Loretta

remind remind's picture

Michelle wrote:
What, seriously?  You mean they take a portion of the child support money?  Surely not!

yep, they surely do.

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