There's something oxymoronic about the idea of "divorce negotiations." "Child-custody arrangement" is a similarly problematic notion. Couples who can't get along well enough to stay married are somehow expected to muster the civility and mutual understanding to forge a post-relationship accord.
Hardly surprising, then, to find that the latest exercise in the field of custody, access and child-support laws stirring up all kinds of acrimony. "Putting Children's Interests First" is a series of federal-provincial-territorial consultations. Its original June 15th deadline has now been informally extended to the end of the month. As for the reaction of those being consulted: fathers' rights advocates are grumpilycynical; key women's organizations have decided not to participate.
Sounds like another day in divorce court, doesn't it?
The consultation exercise was launched in March of this year. Roughly 12,000 individuals and groups across Canada received a 64-pagemanual, and a 57-page "feedback booklet." The documents were also available online - to anyone with a computer and the patience todownload them.
"Putting Children's Rights First" is, in part, an attempt to respond to a controversial 1998 Commons-Senate committee report, titled "For the Sake of the Children". The earlier report advocated a completely new legal regime based on the concept of "shared parenting." But rather than simply respond to that report, federal Justice Minister "Anne McLellan" embarked on a more sweeping exercise. Working in conjunction with provincial and territorial counterparts, she set out to examine the complicated web of laws and services surrounding the children of divorce. Like matrimonial property, these laws don't fit into neat, separate boxes: the federal governmentcontrols the Divorce Act, but theprovinces control many of the laws surrounding child custody, access andsupport.
In the current consultations, the legal-reform questions revolve around theadequacy of our current understanding of the terms "custody," "access" and"support." Though there are all kinds of subtle variations. But here are the definitions in simple terms:
- custody generally refers to the maintenance of the child's residence;
- access denotes time spent withthe child;
- support usually refers to financial obligation.
The consultation booklet comes complete with forms, checklists and blank spaces for notes and comments. It's divided into two parts. The first deals with five legal-reform options: it seeks people's reactions to certain legalterms, and sounds out new, broader notions of "parental responsibility" and"shared parenting." The second part is a massive checklist, which outlines all services - or would-be services - involved in handling the children ofdivorce. Respondents are asked to indicate all that they view as important - everything from parental counselling to anti-violence programs.
This whole exercise is so vague and open-ended that one wonders: where's the controversy? For starters, divorce is a minefield, where reasonable people can turn unreasonable and positions polarize in the blink of an eye. The widely differing forms of opposition from men and women's groups reads like a page from Venus and Mars Do Divorce Law - men advocate aggressive mail-in campaigns, while women opt for passive-aggressive boycotts.
The fathers'-rights group Fathers Are Capable Too (FACT) doesn't have many nice things to say about this process, calling it an excuse for government procrastination. "They hope you have lost interest in your children and that there will only [be] the government's paid anti-family groups responding," FACT's Website announces.
Still, FACT is encouraging angry dads to view the consultations as anotherway to bombard the various levels of government with outrage. It's evenhelpfully made its own copy of the feedback booklet, complete with suggestedresponses.
Meanwhile, the National Association of Women and the Law (NAWL),in co-operation with the Ontario Women's Justice Network onCustody and Access, has taken a different tack. Call it official non-co-operation - with enough reasons given to fill dozens of pages of thefeedback booklet.
"This consultation document is a follow-up to the controversial 1998 SpecialJoint Committee report, 'For the Sake of the Children' which recommendedsweeping changes to laws affecting custody and access," NAWL warns on itsWebsite. "These changes were instigated by men's lobby groups and do nottake into account women's equality or the issues of violence and abuseagainst women and children."
So where does all of this leave the federal and provincial andterritorial governments in their bid to determine the future of family law?Blinking like outsiders stumbling into a messy domesticdispute is one answer. Beyond that, they can insist that the warring parties think of the children. The title "Putting Children's Interests First," is as much a prescription as it is an exercise in policy.
Virginia McRae, director of the family, children and youth division of thefederal Department of Justice, warns that these consultations are not a poll. The government isn't just going to tally up the responses (or the press releases) and announce the winning options. "We're trying to come through the middle here for kids," McRae says.
By mid-June, only about 200 responses had been sent to the Concord, Ontario research centre that will be compiling the results through the summer.McRae hasn't yet seen any of them, but she has monitored the publicstatements from various groups. She concedes that NAWL's boycott was a blow to the process. And the government is not happy about the skepticismshown by fathers'-rights groups.
Inevitably, it seems, neither side is going to be appeased by this nationalpulse-taking exercise. In terms of law-making, this process is supposed tobe a a trail-blazer - involving the public at the front end of designinglegislation. But if the federal, provincial and territorial governmentsare really interested in finding new ways of getting citizens to participatein the process, they should have picked an easier issue than divorce for thetrial run. From the looks of it, a national consensus on reform seems asmuch of an oxymoron as "divorce agreement."
Susan Delacourt is a freelance political writer, author of two books, aweekly columnist for The Ottawa Citizen, and a contributing editor toElm Street and National Post Business Magazine. Her work alsoappears regularly in the National Post and on CBC Radio.
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