Family Mediation Canada Consultation on Custody, Access and Child Support

Custody and Access Issues

Best Interests of the Child

Almost all respondents agreed (94 percent) that the Divorce Act should continue to include the "best interests of the child" test. Some respondents who did not agree actually went one step further and said that the test should be the "best interests of the family" (see Appendix B, Table B-1). As one respondent said, "…the child’s needs must be viewed as being closely related to the well-being of the parents. An estranged parent does not bode well for the child."

The majority of respondents (85 percent) thought that the Divorce Act should include more specific criteria respecting the best interests of the child. Respondents were then asked to rate specific criteria as being of high, medium or low importance or as not relevant to the best interests of the child. As indicated in Table 2.1, the criteria respondents felt were of highest importance were protecting the child from harm caused by violence, maintaining a strong and stable relationship with both parents, and providing for the basic needs of the child (e.g. the child’s health and education).

Respondents were also given the opportunity to suggest other criteria that should be specified in the Divorce Act respecting the best interests of the child. These responses (n=29) varied widely, and are shown in Appendix B, Table B-2. One respondent thought that an important factor was the "willingness of each parent to take on the responsibilities of joint custody: planning; organizing; initiating matters for the child; as well as consistently following though on spending time with the child." Another said, "No form of ‘one shoe fits all’ approach will work—but the pre-separation parent-child relationship patterns are highly relevant—the arrangement that was in place prior to separation. A harm reduction approach over a rights-based approach is fundamental in the family arena. In that sense, a parent predisposed to peacemaking rather than violent/adversarial resolution is helpful to the child."

Not all respondents were in favour of including specific criteria in the Divorce Act. One respondent cautioned: "All of these criteria are so subjective, judgments would depend so much on the particular judge, and being too specific about what is required in a law only leads to absurdities and impracticalities when applied to particular cases."

Table 2.1: Respondents’ Ratings of the Importance of Specific Best Interests of the Child Criteria

Best Interest Criteria Level of Importance
High Medium Low Not Relevant
n % n % n % n %
Need to protect the child from physical or psychological harm caused by violence or exposure to violence 132 96.4 4 2.9 1 0.7 0 0.0
Opportunity for the child to maintain a strong and stable relationship with both parents 126 90.6 12 8.6 1 0.7 0 0.0
Arrangements that encourage the child's emotional growth, health, stability and physical care at every stage of the child's development 109 79.6 24 17.5 2 1.5 2 1.5
Ability of parent(s) to provide guidance, education, basic needs and other special needs of the child 98 73.7 29 21.8 6 4.5 0 0.0
Protecting the child from continued exposure to conflict between parents 100 73.0 30 21.9 7 5.9 0 0.0
Willingness of each parent to encourage a close relationship between the child and the other parent 98 71.0 31 22.5 9 6.5 0 0.0
Quality of the relationship that the child has with the parent(s) 80 58.0 48 34.8 10 7.2 0 0.0
Ability of the parents to cooperate and communicate with each other on important issues concerning the child 76 55.5 43 31.4 17 12.4 1 0.7
Personality, character and emotional needs of the child 73 53.7 53 39.0 8 5.9 2 1.5
Opportunity for the child to maintain a strong and stable relationship with other members of his or her family 72 52.9 62 45.6 2 1.5 0 0.0
Ensuring there is no preference in favour of either parent on the basis of that parent's gender 69 50.7 36 26.5 17 12.5 14 10.3
Ability of the child to adjust to the new parenting arrangement 55 40.1 66 48.2 14 10.2 2 1.5
Child's cultural, ethnic and religious background 38 27.9 64 47.1 27 19.9 7 5.1
Opinions and wishes expressed by the child 36 26.5 73 53.7 27 19.9 0 0.0
Caregiving role assumed by each parent before the break-up 30 21.9 69 50.4 39 24.1 5 3.6

Voice of the Child

The United Nations Convention on the Rights of the Child asserts the right of the child to participate in decisions that affect his or her life. Respondents were asked if they thought that legislative reforms or service improvements were necessary to better enable children to voice their views when parenting decisions affecting them were being made. The vast majority (79 percent) said yes. Respondents were then asked their opinion about specific measures to do this. More than one half (54 percent) favoured assessment reports, 41 percent non-legal representation for the child, and one third (35 percent) legal representation for the child. Only 21 percent favoured a judicial interview with the child. Respondents were least likely to favour testimony by the child (13 percent) and a legislative provision that states that parents should consult their children respectfully when making parenting arrangements upon separation (18 percent).

Respondents were asked if there were other legislative reforms or service improvements they thought would be helpful to enable children to voice their views. The most common suggestions of the 31 given were bringing in a neutral or impartial mental health professional with expertise in interviewing children, and mandatory parenting education to enable parents to make informed decisions about their children (see Appendix B, Table B-3).

When commenting on this question, respondents expressed concern about directly involving children in decision making. One respondent said, "I am very concerned at soliciting children’s direct participation in litigation as a litigant—children are in a dependent position; potential for abuse of position of trust is very high, for either parent." Another suggested that there be a minimum age at which children could be involved in decision making, and that "protocols and minimum training standards of the person doing the assessments should be established."

When asked about factors they thought should be considered when deciding what weight should be given to the child’s views, respondents were very supportive of all the factors listed: age of child (81 percent), ability of child to understand the situation (74 percent), indication of parental coaching (69 percent), child’s emotional state (69 percent), ability of child to communicate (69 percent), and child’s reasons for views (68 percent). Respondents made 30 other suggestions for factors to be considered. The most common responses were the quality of the relationship between parent and child, the child’s maturity, and the ability or training of those interpreting the child’s views (see Appendix B, Table B-4).

Respondents’ comments indicate the complexity involved in deciding what weight should be given to the child’s views. One respondent said this is "very tricky. By the time issues reach the court, the children have been influenced by one parent or the other." Another said, "One must always take into account the child’s wishes, the underlying reasons, and the emotional state of the child; however, we must be careful who we choose to hear/interpret the child’s wishes—complex loyalty bonds, impact of violence, or attachment to a particular parent must be fully understood and reported." A respondent advised that "It’s best to keep children shielded from the adversarial process. Using their voice in the cause of non-adversarial resolution is different, and can be ethically justified."

Figure 2.1 : Respondents' Views on How Much Weight Should be Given to the Preference of Children in Specified Age Ranges

[ Description ]

Respondents were fairly consistent when asked how much weight should be given to the preferences of a child at specified ages regarding custody decisions. Predictably, the older the child, the more weight respondents thought should be given to their preferences (see Figure 2.1). While 46 percent thought no weight should be given to the preferences of children younger than 6, 65 percent thought the preferences of 6- to 9-year-old children should be weighted lightly, and 92 percent thought the preferences of children 14 or over should be weighted heavily. For children ages 10 to 13, 43 percent of respondents thought their preferences should be weighted lightly, and 55 percent thought they should be weighted heavily. A common response to this question was "it depends." As one respondent put it, "You can’t answer based on age—it depends on the child."

Family Violence

The Government of Canada strongly believes that it is important to send a message that all aspects of the family law system must take into account incidents of family violence involving the child or a member of the child’s family. Survey respondents were asked how legislation should recognize family violence as a factor in decision making about children after separation and divorce. As shown in Table 2.2, two options received the most support from respondents: history of family violence should be a factor considered in evaluating the "best interests of the child" test and legislation should provide that domestic violence is a factor that negatively affects children and should be considered in determining parenting arrangements.

Table 2.2: Respondents’ Views on How Legislation Should Recognize Family Violence in Decision Making About Children

Factors n %

History of family violence should be a factor considered in evaluating the "best interests of the child" test

139

88.5

Legislation should provide that domestic violence is a factor that negatively affects children and should be considered in determining parenting arrangements

130

82.8

Legislation should clarify that shared parenting should not be ordered when this could cause abuse, serious harm or injury

109

69.4

Legislation should provide that supervised access should be ordered when necessary to protect the child

107

68.2

Legislation should create an offence for false allegations of abuse or violence

103

65.6

Legislation should provide a statutory definition of family violence

85

54.1

Legislation should preclude mandatory mediation when there is evidence of family violence

56

35.7

Other

28

17.8

There were 32 other suggestions made by 28 respondents for how legislation should recognize family violence as a factor in decision making (see Appendix B, Table B-5). Some respondents commented that mediation should not be used in situations involving family violence; however, one respondent said, "Family violence comes in many degrees—let the parties decide if they feel that violence is such a factor that they cannot mediate. If the victim spouse says mediation should be attempted, then respect those wishes." Another respondent said that "emotional abuse may be experienced by one parent without the other’s intention, and therefore whether an allegation is ‘false’ or not would require careful definition. For instance, constant demeaning, criticizing and bullying behaviour is not apparent to the perpetrator because he/she has usually incorporated this behaviour into their personality over many years."

Respondents were also asked what other reforms or service improvements would be useful. The majority of respondents supported each of the following options: more education for parents on the effects of family violence on children (76 percent), better access supervision services (69 percent), better counselling services (68 percent), independent assessment services (64 percent), more education for professionals on the effects of family violence on children (61 percent), and better access to legal aid (51 percent). Respondents made 37 other suggestions (see Appendix B, Table B-6), the most common being better access to low-cost/no-cost counselling services for victims, children and abusers and mandatory parenting education.

Managing High Conflict Situations

Experts agree that exposure to unresolved, high conflict situations increases risk factors in children. Respondents were asked if legislation should define high conflict spousal relationships, and 59 percent said it should. When asked what factors should be included in a legislative definition of high conflict spousal relationships, the most often given responses were long-term disputes involving high degrees of anger and distrust (57 percent), chronic disagreements over parenting issues (47 percent), history of misuse of the legal system (46 percent), and unsubstantiated allegations of poor parenting (38 percent). The most common other responses of the 29 given were a history of abuse or violence and substance abuse (see Appendix B, Table B 7).

Most respondents (80 percent) thought that there should be specialized legislative provisions or other procedures to deal with high conflict disputes. When asked what type of legislative provisions or other procedures would be workable and useful, over half of the respondents agreed with the following measures: specialized education for parents on high conflict cases (70 percent); special counselling services (65 percent); special assessment services (61 percent); and special mediation services (60 percent). Of the 24 other suggestions given by respondents, the most common was to have a trained individual to assist high conflict families (see Appendix B, Table B-8).

Promoting Non-adversarial Dispute Resolution Mechanisms

Subsection 9(1)(b) of the Divorce Act imposes a duty on lawyers to inform and discuss with their clients the availability of mediation facilities. Respondents were asked if subsection 9(1)(b) should be strengthened, and three quarters (74 percent) said yes. Respondents were then asked to suggest ways that subsection 9(1)(b) could be strengthened, and 121 comments were received (see Appendix B, Table B-9). The following were the most common suggestions: requiring parties to attend a first session of mediation to learn about the process and to explore possibilities for involvement, mandatory mediation before the case goes to court, lawyers distributing a pamphlet/handout describing mediation services, and clients signing an acknowledgement that mediation services have been discussed and that they fully understand how/if mediation could be helpful to them.

Respondents’ views on this question are captured nicely in the following comments:

Make mediation mandatory—the Courts really can’t deal with the emotional side of divorce—so at least mediation should have a shot at getting the parties to express these matters prior to finalizing the order and making decisions.

The petition for divorce or statement of claim should contain a section that has to be signed by the client confirming she/he has been advised: (1) that mediation is an option; (2) that she/he has considered the option; and (3) that she/he has decided for the time being to reject the option but understands it is available in the future.

Respondents were asked to indicate what mechanisms or services they thought would help parents resolve disputes about their children, and also whether the service should be voluntary or mandatory. Table 2.3 shows that the vast majority of respondents were supportive of each mechanism or service listed. For example, 96 percent supported mediation services, 94 percent supported parenting education programs, 85 percent supported marriage/family counselling, and 84 percent supported parenting plans. Respondents differed, however, on whether they thought the mechanism or service should be voluntary or mandatory. The majority of respondents thought that marriage/family counselling and mediation services should be voluntary. More than two thirds of the respondents (71 percent) thought that parenting education programs should be mandatory, and one half (50 percent) thought parenting plans should be mandatory. One respondent commented, "It is hard to make mandatory systems work—education is the key." Another said, "Initial assessment (separate sessions) could be mandated, but it would be impossible to make people mediate or do counselling."

Table 2.3: Mechanisms Respondents Thought Would Help Parents Resolve Disputes About Their Children and Whether They Should be Voluntary or Mandatory

Mechanisms Voluntary Mandatory
n % n %
Marriage/family counselling 105 66.9 28 17.8
Mediation services 80 51.0 70 44.6
Access supervision services 64 40.8 59 37.6
Parenting plans 54 34.4 78 49.7
Parenting education programs 37 23.6 111 70.7

Twenty-three other comments were received about mechanisms for helping parents resolve disputes about their children (see Appendix B, Table B-10). The most common response was to have assessment services.

Respondents overwhelmingly agreed with the following suggestions for how parents could be better informed of mechanisms or services that could help them resolve disputes about their children: ensure information is available early in the process (90 percent), multimedia advertising (e.g. television, newspapers and the Internet) (77 percent), printed materials (e.g. brochures and booklets) available at law offices (71 percent), and printed materials available through the courts (71 percent). When asked for other suggestions, respondents provided 65 comments (see Appendix B, Table B-11), the most common being mandatory information session before court, printed materials in community locations, and printed materials in medical offices (e.g. doctor and dentist’s office and hospital). One respondent suggested that "an initial ‘potent’ information session in the early stages outlining the costs, financial and emotional, to the clients can help get them started in the right direction, with no illusions as to the consequences if they don’t mediate. Too often parties start on the adversarial route and then they can’t turn back."

Access and Compliance

More than three quarters of respondents (77 percent) agreed that legislative measures stronger than section 16(10) (the "friendly parent clause") or other measures were required to promote children’s extensive and regular interaction with both their parents. A cautionary note was raised by one respondent, however, who said, "my worry is that this clause can cause great harm in situations where a parent is labelled as uncooperative or labelled with parental alienation when it is really the dynamics of family violence."

When asked what legislative or other measures were required, respondents were most supportive of education for parents on the benefits for children of contact with both parents; more than two thirds of respondents supported mediation services (see Table 2.4). Other suggestions are presented in Appendix B, Table B-12. The most common suggestion of the 22 received from 20 respondents was to provide case management services/parent coordinators to address unresolved conflict. As one respondent said, "What is needed is a parent coordinator or court counsellor with the authority to counsel, mediate, arbitrate, intervene in crises, temporarily suspend access or alter parenting plans as necessary." Another respondent disagreed that stronger measures were needed to promote children’s extensive and regular interaction with both their parents: "You can’t force a relationship that isn’t there. This may end up harming the children even more. Children can develop similar relationships with other adults in their life in the place of an absent parent!"

Most respondents (85 percent) thought that parents should be encouraged to formalize in a written agreement or court order their custody and access arrangements. The majority of respondents favoured the following mechanisms or services: mediation (76 percent), parenting education programs (69 percent), parenting plans (58 percent), and better access to information (57 percent). Nineteen other suggestions were made, and are presented in Appendix B, Table B 13. The most common response was to have aids to help parents develop their own agreement (e.g. computer software program or self-help kit). One respondent said, "Parents need assistance with their grief and anger over separation before they can make reasonable decisions about their children. Some also need to understand much better what their children’s needs are—each child is unique." Another respondent suggested that "a significant majority of separating parents would welcome mediation in ‘setting out in writing’ the understandings and agreements between them. Such a service can and should be promoted at the local level."

Table 2.4: Respondents’ Views on Which Legislative or Other Measures are Required to Promote Children’s Interaction with Both Parents

Measures n %
Education for parents on the benefits for children of contact with both parents 116 73.9
Mediation services 106 67.5
Counselling services 89 56.7
Requiring lawyers and judges to explain to each party the obligations created by a parenting order and the consequences of non-compliance with orders 81 51.6
Supervised access services 78 49.7
Presumption of shared parenting 65 41.4
Punishing and sanctioning the parent who breaches an access order 62 39.5
Court-connected office to enforce access orders 61 38.9
Stronger legislative measures dealing with the non-exercise of access 54 34.4
Other 20 12.7

Respondents were asked how costs should be dealt with when extensive and regular access arrangements involved financial costs. More than two thirds of respondents (68 percent) thought that costs should be specifically included in the access order. Almost two thirds (62 percent) thought that the Federal Child Support Guidelines should reflect an adjustment for these costs. Half (50 percent) thought costs should be shared in proportion to income. Respondents were not in favour of the other options given. Only one third (32 percent) agreed that "extensive and regular interaction" should be specifically defined (e.g. a threshold amount of time), and only five percent agreed that all costs should be borne by the access parent (i.e. the current model).

Respondents made 16 other comments (see Appendix B, Table B-14). The most common was that parents should be encouraged to formulate their own plan, with the assistance of a mediator if necessary. The comment was made by one respondent that, "the Guidelines seem to be encouraging contests over ‘shared’ custody to avoid the Guideline amount—concerned if shared custody is the reality in all instances and whether the residential parent still bears most of the costs even if the child is with the other parent 40 percent of the time."

Respondents were also asked how to handle a situation in which a custodial parent wishes to move to a location that would affect the current access arrangements. As shown in Table 2.5, respondents agreed that decisions should be based on the best interests of the child: there should be a statutory notice period (e.g. 90 days) to allow time for altering access schedules; negotiation or litigation when necessary;[2] and financial arrangements should be adjusted to allow regular visits by the non-custodial parent. More respondents thought there should not be a presumption in favour of the custodial parent (42 percent) than those who did (8 percent). There were 23 other comments made by respondents (see Appendix B, Table B-15). A mediator commented that there should be "definitely a 90-day written notice of relocation…. Most clients are more ‘comfortable’ and ‘reassured’ when this is included in a mediation report."

Table 2.5: Respondents’ Views on Ways to Deal with Situations Where a Custodial Parent Wishes to Move and this Would Affect Access Arrangements

Options n %
Decisions should be based on the best interests of the child 126 80.3
There should be a statutory notice period (e.g. 90 days) to allow time for altering access schedules, negotiation or litigation if necessary 115 73.2
Financial arrangements should be adjusted to allow regular visits by the non-custodial parent 113 72.0
The custodial parent should have to show that the reason for the move is something other than to frustrate access by the non-custodial parent 103 65.6
There should not be a presumption in favour of the custodial parent 66 42.0
There should be a presumption in favour of the custodial parent 13 8.3
Other 23 14.6

The opinions of respondents on what legal approaches or program supports could address the problem of enforcing access orders are presented in Table 2.6. The options receiving the support of the majority of respondents were as follows: use of mediation, special education for parents on the problem, provincial legislation or court rules to facilitate quick reaction by courts, use of counselling, and legislation authorizing courts to order compensatory access and compensation for expenses incurred as a result of access denial. Respondents were least supportive of agency enforcement to address the problem of enforcing access orders. Fifteen other comments were received and are presented in Appendix B, Table B-16. The most common of the suggestions was some form of case management through the courts.

More than one half of respondents (58 percent) thought that stronger legislative or other measures were required to promote children’s extensive and regular interaction with their grandparents. When asked what legislative or other measures were required, almost half (48 percent) favoured including provisions in parenting plans for access by grandparents, and 39 percent of respondents said there should be more specific statutory references to the importance of grandparents in "best interests of the child" criteria. Approximately one third of respondents favoured special education on the problem (34 percent), better counselling and support for parties in this situation (31 percent), and specifying grandparents in legislation (26 percent). There were 13 other comments made by respondents (see Appendix B, Table B 17). When commenting on whether stronger measures are necessary to promote access by grandparents, one respondent stated: "No. Very strongly. Parties have enough to cope with without grandparents." Another said, "Only where the grandparents’ adult child is unavailable by death, incapacity or jail should access rights be granted to a grandparent. In all other instances the grandparent should gain access in negotiation with their adult child and if that adult child refuses them access they need to resolve the adult problem."

Table 2.6: Respondents’ Views on Legal Approaches or Program Supports that Could Address the Enforcement of Access Orders

Options n %
Use of mediation 119 75.8
Special education for parents on the problem 101 64.3
Provincial legislation or court rules to facilitate quick reaction by courts 95 60.5
Use of counselling 88 56.1
Legislation should provide a statutory definition of wrongful access denial and provide remedies for access denial only when it is wrongful 87 55.4
Legislation should authorize courts to order compensatory access and compensation for expenses incurred as a result of access denial 84 53.5
More access supervision services 77 49.0
Create offences for wrongful denial of access 62 39.5
Agency enforcement 44 28.0
Other 15 9.6

Clarifying Terminology and Parental Responsibilities

The survey distributed to respondents included an outline of four options that the Department of Justice Canada is considering for legislative changes to terminology in the Divorce Act. The four options as presented by the Department of Justice are as follows:

Respondents were asked which option they would like to see implemented. The most popular response was Option 4: Shared Parenting (41 percent), followed closely by Option 3: Allocating Parental Responsibility (39 percent). Only 1 percent supported Option 1: Status Quo, and only 10 percent favoured Option 2: Clarify the Meaning of "Custody." Four percent of the respondents chose "None of the Above." Some respondents, however, raised concerns about Option 4: Shared Parenting. For example, one respondent said, "Based on experience, Option 4 in isolation seems hopelessly idealistic. Option 4 as a starting point, with default to Option 3 makes more practical sense to me." Another said, "I am very concerned about shared parenting in regards to families in severe pathology. Power and control is a major issue for many of the parents I am seeing when completing child custody reports." Still another said, "Option 4 is better but not for litigating parents. The presumption for shared parenting should not be used as an economic weapon by fathers against mothers doing the lion’s share of the parenting." Lastly, one respondent said the following:

I don’t like Option 1 or 2 because ‘custody’ is still being used. Even though legislation knows that the definition has changed, the average person on the street still has a preconceived notion about ‘custody’ and ‘access.’ Custody connotates ownership of the child. Children are not owned, they have a right to both parents in their life. I don’t like Option 4, because it is too presumptuous. Shared parenting is not always the best option (in the case of very short marriages, where parenting values/beliefs have not been established). Or absent parent marriages, when one parent has really done very little hands on. Also when there are infants or very young children, i.e., infants who are still nursing, etc.

Respondents were asked which option best promotes child-centred decision making. Option 3: Allocating Parental Responsibility was favoured by 43 percent of the respondents, and 38 percent chose Option 4: Shared Parenting. Only 10 percent chose Option 2: Clarify the Meaning of "Custody," and 2 percent thought Option 1: Status Quo best promotes child-centred decision making. Two percent of respondents chose "None of the Above." When commenting on this question, one respondent stated: "Option 4 is effective only where parents have a respectful relationship with each other. For those who do not and cannot, Option 3 is preferable." Another respondent expressed concern about each proposed option:

Depending on the maturity of the parents, geographical distance, the level of hostility/abuse existent in the parental relationship, etc., none of these options will always be in the best interests of the child. While Option 4 is ideal, it won’t always work in the real world. Sometimes we need Option 1 to give the power to a parent who needs to protect the well being of children from an abusive parent.

Almost all respondents (97 percent) agreed that emphasizing parental responsibilities rather than parental rights was an appropriate reform objective. When asked which option best emphasizes parental responsibilities rather than parental rights, respondents favoured Option 3: Allocating Parental Responsibility (50 percent) and Option 4: Shared Parenting (38 percent) over Option 2: Clarify the Meaning of "Custody" (5 percent) and Option 1: Status Quo (2 percent).

Respondents were asked a general question on how else legislation could provide guidance in determining parents’ responsibility for their children on separation and divorce. The suggestions are contained in Appendix B, Table B-18.

The most common responses of the 79 received were as follows: parenting education programs should be mandatory, legislation should define in general terms the responsibilities of parents after separation and divorce, and there is nothing more legislation can do. Specific comments by participants included the following:

There needs to be a moratorium on any legal proceedings that place the parents in the position of having to make major long-term decisions regarding their children for at least two to three years after the separation. While couples wait this time period, various services need to be available to the parents to help them make decisions in the best interests of their children when the time for a formal divorce occurs (2-3 years later). This includes parent education; mediation; counselling; crisis intervention; assessment. It borders on the unethical to put parents in a situation where they have to make major long-term decisions regarding their personal and their children’s lives during a period that is understood to be emotionally difficult and when many are acting and thinking ‘out of character,’ and are emotionally vulnerable. Parents need to be given an appropriate time period to deal with the many consequences of the separation. Child support can be put into place on an interim basis until the Court is assured that the parents have taken advantage of all the relevant services related to their case and have spent an appropriate period of time to consider all the implications of their separation on their children.

To be blunt, it is the writer’s experience and the experience shared by numerous family lawyers that there is a strong perception (dare we say certainty) that there has developed in the Courts over the last 10 years a significant bias in the system in favour of women. The writer has recently forwarded correspondence to the Federal Minister of Justice and the Alberta Minister of Justice raising some of these concerns. The response I received back from the Honourable Federal Minister of Justice essentially indicated that the Divorce Act was very clearly gender neutral. The concern of the writer was simply that notwithstanding that the legislation is neutral, our Courts, including the Supreme Court of Canada, have exhibited what could charitably be described as a benevolent attitude towards women in family breakdowns and a hostile attitude towards men in family breakdowns.

You can’t legislate good parenting.

I think we need to recognize that legal remedies/legislation can only do so much to assist families in this transition. Families would be better served with a range of services made available to them, i.e., prevention, education, supportive counselling post separation/divorce, mediation, access assistance and when needed, legal assistance. Separation and divorce is a social/emotional issue. Overfocusing on legislation (and especially if it’s punitive) I think is misguided/misses the mark.


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