INTRODUCTION
GENERAL PRINCIPLES
LEGISLATION, NEGOTIATION, AND SETTLEMENT
DIVERSITY AND INCLUSION
EQUALITY
BEST INTERESTS OF THE CHILD
I. Introduction
II. Primary Caregiver Emphasis
III. General Principles
VIOLENCE AND ABUSE AGAINST WOMEN AND CHILDREN
I. Introduction and Definition of Violence
II. General Principles
ACCESS
I. General Principles
II. Supervised Access
THE "FRIENDLY PARENT" RULE
JOINT CUSTODY
PARENTING PLANS
General Principles
MEDIATION
FINANCIAL BARRIERS FOR WOMEN
I. Costs
II. Legal Aid
III. Interpreters
CHILD ADVOCATES
DELAYS
RELOCATION
GRANDPARENTS' ACCESS
PARENT INFORMATION PROGRAMS
ASSESSMENTS
EDUCATION OF THE FAMILY LAW PROFESSIONALS
RESEARCH NEEDS
CONCLUSION
BIBLIOGRAPHY

INTRODUCTION

1. The National Association of Women and the Law (NAWL), is a national, non-profit, feminist organization active in legal research, law reform and public education. The membership comprises lawyers, academics, students and professionals from a variety of fields. NAWL and its local caucuses have lobbied on such matters as human rights, family law, tax law, pornography, reproductive choice, the sexual assault provisions in the Criminal Code and equality provisions under the Canadian Charter of Rights and Freedoms. NAWL has a particular interest in the laws pertaining to the custody of and access to children, as the overwhelming number of custodial parents, whether legal or de facto, are women.

2. NAWL is pleased to participate in this consultation process. NAWL urges the government not to consider any recommendations or possible changes in the Divorce Act without further and broader consultation. The focus of the mandate of the Special Joint Committee on Child Custody and Access, as set out in the order of reference adopted by the Senate and the House of Commons, may, in fact, be too narrow, and does not take into consideration the variety of family formations in Canada, which include families with parents with disabilities, same sex couples, aboriginal peoples and peoples from different cultures. The order of reference refers to "custody and access arrangements after separation and divorce", but is basically dealing with issues related to the Divorce Act, whereas disputing parents are faced with numerous provincial legislative schemes, including child protection legislation.

GENERAL PRINCIPLES

3. In applying a child-focused analysis, it is important to look at legislation from the perspective of the child, rather than from the perspective of the legal relationship of the child's parents. The child of unmarried parents, or same sex parents, should not be treated differently by the law as a result of choices made by the parents. The federal, provincial and territorial governments must work together to standardize and rationalize policy regarding custody and access.

4. NAWL recommends that any changes in the Divorce Act be mirrored in provincial and territorial legislation which deals with children. Given that Canadians are a mobile people, all legislation dealing with children should be rationalized. The focus should be the best interests of the child. But the best interests test should be interpreted in a way that recognizes equality interests and gendered caregiving patterns that are relevant to the well-being of children.

LEGISLATION, NEGOTIATION, AND SETTLEMENT

5. The majority of parents whose relationships have broken down are able to resolve custody and access issues without the necessity of litigation. Most parents negotiate their custody and access arrangements, either on their own directly, with lawyers (that is, without starting litigation, or after an interim court order is made), or with the help of others who assist in dispute resolution. Parents negotiate in the shadow of custody and access legislation. Moreover, such legislation is used (by lawyers and others) to influence and often direct the course and outcome of settlement negotiations; the "friendly parent" rule (Divorce Act ss. 16(10) and 17(9)) certainly had this effect. The legislation is often used as a non-litigation weapon to obtain certain results, for example, greater access or control over children (again, these result from the use of the "friendly parent" rule).

6. It is however important to remember that only approximately 5% of cases go to trial, and the legislation dealing with custody and access issues will actually be relied on by a very small percentage of parents. While legislation should reflect social structures and expectations, and government policy, most disputing parents will not read it, and will not even know what its contents are. The legislation would only be relied on to assist in resolving the most difficult and contentious disputes.

7. Women usually have care and control of their children after the breakdown of their relationships because that is generally the pattern that prevailed during the relationship. A study of fathers' rights groups shows that fathers expect mothers to assume primary responsibility for the children, whereas fathers speak of "helping."⁽¹⁾ We caution against implementing stringent requirements (for example, the requirement of a parenting plan) which ignore the ability of many parents to address custodial issues in a manner that reflects the actual roles played during the course of the relationship. In households where both parents participate in the ongoing care of the child, that ongoing involvement rarely terminates after the spousal relationship terminates.

DIVERSITY AND INCLUSION

8. Issues related to custody and access cannot be considered without attention to inequalities in Canadian society. Women are disadvantaged in society because they are women, but also because they fall into other "categories" of disadvantage. Populations that have been invisible and ignored in law reform must be made visible. All "categories" of women need to be more clearly included and accommodated in the law, including aboriginal women, women with disabilities, lesbians, immigrant women, and racial minority women. Also, women may be members of multiple "categories." The interplay of a person's race, class, sex, sexuality, ability and other indices of difference may produce unique experiences of disadvantage.⁽²⁾

9. Any changes in legislation must reflect the diversity of the Canadian peoples. For example, not all families are able to sustain a situation where mothers give full-time care to children, or where fathers are actively involved in children's lives.

10. In this brief, NAWL mainly addresses issues related to disputed custody claims between a father and a mother. It is clear, however, that custody and access disputes can, and do, arise between same-sex parents. Many of the issues arising from the breakdown of a same sex relationship may be similar to those that arise from the breakdown of an opposite sex relationship. However, some differences may exist and legislators and courts must be attentive to these differences. The legal system must recognize the families of lesbian and gay parents and treat them with respect.

11. For example, the non-biological co-parent in a lesbian relationship, has not typically been recognized by the legal system as a parent who has rights to claim custody or access in relation to a child that they have parented. Yet, from a child's perspective, the non-biological co-mother is usually regarded as a parent who has played an important role in the child's life. NAWL recommends that the non-biological co-parent be recognized as a parent in the context of custody and access disputes in order to ensure that the child is not deprived of contact with this parent.

12. Moreover, it is possible that in some circumstances, the non-biological co-mother in a lesbian relationship may be the primary caregiver parent. Gender-based roles may not be as clearly delineated in same sex relationships as tends to occur in opposite sex relationships. Judges and other decision-makers must be attentive to these possibilities when engaging in decision-making in relation to the children of same sex relationships.

EQUALITY

13. Legislators and policy makers must acknowledge the fact of women's social and economic inequality and that:

• Women's systemic inequality in society is also reflected in family law contexts;
• Women face systemic discrimination in employment and in the legal system generally;
• Failing to address women's inequality because of a political "need" to appear "balanced" will only make it worse;
• Equality cannot and should not be "legislated" through reforms to child custody law that ignore the gendered nature of caregiving responsibilities that continue to prevail in Canadian society;
• The equal treatment of unequals does not lead to equality.

14. Solutions that ignore or obscure the inequalities and power relations that exist between men and women in Canadian society will not satisfy the requirement to insure equality in the formulation and application of the law. Power imbalances have a direct impact on how custody and access disputes are resolved.

15. Any legislative change must recognize that, for the most part, women are the primary caretakers of children.

16. NAWL cautions the government not to ignore women's inequality for political reasons. Any legislation must be based on reality and the reality is that more women care for children than men. To start to redistribute custodial rights based on an incorrect view of reality further marginalizes women and children.

BEST INTERESTS OF THE CHILD

I. Introduction

17. The best interests of the child principle appropriately directs concern towards children, but is vague and vulnerable to judicial bias. Without clearer criteria for decision-makers to use when making decisions that reflect children's needs, it is not a useful tool, and is easy to manipulate. Clearer criteria would also discourage the litigation that results from vague legal standards.

II. Primary Caregiver Emphasis

18. Legislation should articulate a presumption that custody of children should be with the primary caregiver of the children. This presumption would provide clear guidance for all who work in the justice system, and would enshrine in law the well-recognized values of stability, consistency and continuity of care for the child, whose family system is changing dramatically as a result of the end of the parents' relationship.

19. Future promises regarding caring for children should not be given the same weight as a history of caring for the child.

20. In the alternative, determining the primary caregiver of the child could be included in a list of factors or in the definition of the best interests of the child. Courts should determine who was the primary caregiver of the child when the parents' relationship was intact, and this determination should be included as a key factor in the "best interests of the child" test. Carol Smart, a British sociologist of law, recommends decision-makers must distinguish between "caring about" children and "caring for" children; men tend to "care about" children, while women tend to "care for" children.⁽³⁾ If women are caring for children, they are providing the primary care and that should be considered in the "best interests of the child" test.

21. NAWL recommends that the person who is the primary caregiver should also be the person who has the primary decision-making authority. It is important not to confuse interest in decision-making with interest in caregiving. Often claims for joint custody are more about a desire to share in decision-making, than about a desire to share in the day-to-day caregiving.⁽⁴⁾

22. NAWL realizes that the definition of the primary caregiver may differ in different situations. NAWL recommends that the standard white "middle-class" norm (e.g., the full-time stay-at-home mother) not be followed but that any definition of a primary caregiver take into consideration the diversity of people's lives. For example, mothers who choose full-time work in the labour force nonetheless typically assume primary responsibility for children.⁽⁵⁾

23. Most primary caregivers are women who are, by the very nature of being primary caregivers, concerned about the best interests of the child. The best interests of children are not dissociable from the best interests of the primary caregiver. Primary caregiving should be defined as the performing and/or overseeing of tasks related to the daily lives of children. These responsibilities and tasks have been undervalued or even unvalued in the past in our justice system and in Canadian society.⁽⁶⁾

III. General Principles

24. It is important to consider the following when determining who should have primary care:

• Consideration must be given to who organizes her or his life around the "children's lives" as opposed to who organizes the children's lives. The active role in ensuring the child's well-being, as opposed to the passive role, must always be considered;
• Primary care should include all aspects of child care, including the emotional, social relational and the educational needs of the child, and the child's need for physical and emotional caring as well as the provision of food and cleanliness;
• Recognition must be given to the fact that child-rearing practices vary from culture to culture and from religion to religion. For example, some women parent in the context of an extended family;
• Women with disabilities should not be disadvantaged if they do not provide "direct care" to the children. The appearance may be that these women need extra assistance in providing care. This is not any different from many women who take their children to daycare because they work outside the home or who have in-house help, if they can afford it.

25. The following factors should not be considered when determining what is in the best interests of the child:

• The ability of one parent to provide more financial security or a higher standard of living for the child. Attention to this factor often prejudices legitimate custodial claims of women as they earn substantially less than men, as a result of both social and economic inequality;
• The fact that a parent is lesbian, gay, transgendered, or bisexual should not be considered a negative factor in decision-making on custody and access. However, the heterosexual parent's ability to deal constructively with sexuality issues is relevant;⁽⁷⁾
• The fact that a woman has disabilities should not be the focus, but rather her ability to care for the children should be looked at in its entirety;
• Women who are undergoing mental health treatment or who have undergone mental health treatment should not be treated any differently from any other parent, unless there is strong evidence that her health per se will result in inability to care for children.

VIOLENCE AND ABUSE AGAINST WOMEN AND CHILDREN

I. Introduction and Definition of Violence

26. The impact on children of witnessing violence has both short-term and long-term consequences that depend on the children's sex and developmental stage. Moreover, violence does not end with separation, but rather may escalate. Child custody legislation should therefore reflect the reality of violence in many families that are separating.⁽⁸⁾

27. In this brief, NAWL distinguishes between violence and abuse of women and children in a family setting, and high-conflict families. Violence and abuse include threats, and other behaviour geared towards controlling the woman's behaviour. A high-conflict family, in the context of this brief, is meant to describe parents whose dysfunctional relationship continues post-separation, and that includes conflict and anger, but falls short of assaults and abuse.

28. A workable definition of abuse is needed. In particular, policy makers must refrain from using the terms "family violence" or "domestic violence." These terms infer that violence is a "family problem" instead of a problem generally perpetrated by men against women and children. Violence within the family is no less harmful or criminal than violence between strangers. Using neutral words undermines the gendered nature of patterns of violence, and therefore perpetuates and marginalizes the significance of such violence.

29. There is a continuum of violence and abuse. Included on the continuum are violence and threats against other members of the household (such as extended members of the family), or violence and damage to personal property in the presence of the woman.

30. NAWL recommends that any definition of violence include a recognition that abuse can include verbal abuse, psychological abuse, emotional abuse, physical abuse, financial abuse, and sexual abuse. The definition of violence in this context should include any behaviour which has as its goal control of the woman's behaviour.

II. General Principles

31. NAWL recommends that there should be a presumption that abuse, whether that is physical, emotional or sexual abuse of one parent by the other, is not in the best interests of the child. This principle should be clearly articulated in legislation defining the best interests of the child test.

32. NAWL is concerned that the judiciary often misses the point of violence and abuse against women. Moreover, some judges consider estrangement from the father to be more traumatic than witnessing abuse. Courts should not be asking the question "Why did she stay so long?", but rather "Why did he hit her?" The courts must take into consideration that there are a variety of reasons why women stay in violent situations, which include their economic dependency on the violent spouse.

33. Women should not be punished for not leaving a violent situation immediately and this factor should not reflect on her ability to care for her children. Often, women do not leave because they are putting the interests of the children first. For example, women may conclude, due to the powerful message that the media and society give, that it is better to live with a father who is a poor role model than to live without one. Women may also conclude that there is greater economic security with the father. Finally, they may fear losing the children, as many abusive fathers threaten to take the children and prove that the mothers are "unfit."⁽⁹⁾

34. Courts should not assume that a woman and her children will be safer after separation. In fact, the data is overwhelming that violence escalates when the man fears he will lose the woman, and this is the point at which women are most often killed by their spouses and partners.

35. Although there is research available on the consequences for children of witnessing the abuse of their mother by their father, the legal system has been slow to incorporate such research into its decision-making processes. The Divorce Act and all provincial and territorial legislation dealing with custody and access should be amended so that violence by one spouse against another is explicitly relevant to the determination of custody and access issues.⁽¹⁰⁾

36. NAWL recommends there should be a presumption, at least on an interim basis, that an abusive spouse is precluded from having either custody of, or unsupervised access to, any children of the relationship. When there is an abusive spouse, whether that abuse is directed at the mother or the child, that spouse should be precluded from having either custody of or unsupervised access to the child. It may be appropriate as time passes that access develop, but that should be facilitated only when there is clear evidence that the abusive conduct has terminated, and that contact with the child is in the child's best interests (that is, in a positive analysis, such contact is in the child's best interests, rather than a negative analysis which determines whether or not the child is likely to be hurt).

37. NAWL urges this government to ensure that any legislative changes prioritize the safety of women and children. This may include relocating the mother and the children to a safe place or removing the husband from the home. Courts should always err on the side of protecting the safety of women and children.

38. NAWL recommends that there be no mutual restraining orders unless there is evidence that both parties have been abusive. Mutual restraining orders trivialize violence against women.

39. NAWL recommends that the definition of the expert witness be expanded. Women who work in transition houses and who work directly with battered women services should be allowed to give evidence of violence against women and the impact that violence has on both the women and the children. These are the individuals who have direct contact with the women and children and who have the historical experience to educate and provide information to the Court.

40. NAWL recommends that any changes in the legislation should recognize that women with disabilities, women from minority cultural backgrounds, lesbian women and aboriginal women often are subject to high levels of abuse and are rarely able to access support services. Services should be provided to address their special needs, both in transition houses and through education.

41. Safety issues must be considered in all custody and access orders; there should be a clear directive in the law that the safety of women and children be assured before access is allowed. In making custody and access decisions where violence exists, courts must recognize the effects on the child and consider the safety and well-being of the child and the abused parent as of primary importance.⁽¹¹⁾

42. Judges must be educated to recognize when litigation is used to perpetuate the pattern of dominance and control by an abusive partner.⁽¹²⁾

ACCESS

I. General Principles

43. There is a growing and disturbing trend by Canadian courts to eliminate the distinction between sole custody with access and joint custody, by giving access parents almost the same rights as custodial parents. The current law regarding access and many reform initiatives, such as parenting plans, are based, in large part, on assumptions regarding access that are not accurate, or are largely unexamined. Also, access and its relationship to the best interests of the child is a fluid and evolving concept; for example, the "garden variety" access that is available now is different from the standard access available even five years ago, or fifteen years ago. These assumptions regarding access should be examined in more detail.

44. There is an inaccurate assumption that where access has diminished, the problem is with the custodial parent interfering with access. The reality is that access parents do not necessarily exercise their access. In women's experience, the major problem with access is that men do not always exercise their access rights or that they do so erratically or unpredictably.⁽¹³⁾ The failure to exercise access, or to be consistent in the exercise of access is very disruptive and difficult for the child, and for the custodial parent.

45. There is an inaccurate assumption that denied access, or highly conflicted access is a big issue in family law. In fact, conflicts around access are often resolved by the parents themselves, or through their lawyers. While conflicts around access may result in court action, it is rare that denial of access ends up in court. In a small percentage of families, these conflicts are probably unresolvable, and the justice system is not able to assist. It is important to not design a system around problems that occur in a small minority of cases.

46. There is an inaccurate assumption that maximum contact with both parents is beneficial for all children. The influence of this assumption on new legislation in England has been also criticised.⁽¹⁴⁾ The reality is that maximum contact with both parents is not necessarily beneficial for all children, and therefore, ordering or agreeing to it is not necessarily in the best interests of all children. The majority of studies based on large national surveys in the United States, found little association between father visitation and children's well-being.⁽¹⁵⁾

47. There is an inaccurate assumption that frequent access is more beneficial. The reality is that frequent access, as opposed to amount of time spent, is not necessarily more beneficial for a child (that is, one day per week for 7 weeks is not necessarily better than 1 full week). What counts is not the quantity of time, but the extent to which the access parent and child have a relationship in which the child feels valued. The regularity and predictability of visits is more important than frequency of visits.⁽¹⁶⁾

48. There is an inaccurate assumption that proximity is a predictor of regular contact. The reality is that proximity is not always a predictor of regular contact. More significant is the commitment of the access parent to exercising access, and the relationship between the access parent and the child.⁽¹⁷⁾

49. There is an inaccurate assumption that the standard access arrangement is the most beneficial. The reality is that the overwhelming number of boiler-plate access arrangements in orders and agreements indicates a bias towards a standard structure. Underlying that bias is an assumption that this arrangement is in the best interests of the child. The standard access structure (every other weekend) is not necessarily the best arrangement simply because it is typical.

50. There is an inaccurate assumption that the original post-separation access arrangement is the appropriate access arrangement for all time. The reality is that the access arrangement agreed to (or court ordered) at one time is not always the most suitable arrangement for all time. Access appropriate for a 2-year old child may not be appropriate for a 7-year old or a 13-year old. In reality, access is restructured on an on-going basis by parents, to take into account the ages and stages of the child.⁽¹⁸⁾

51. There is an inaccurate assumption that the post-separation access arrangement should follow the pre-separation arrangement as closely as possible. The reality is that post-separation arrangements cannot and should not attempt to look like the pre-separation arrangements. It is an impossible ideal, unrealistic, ignores any conflicts that exists between the parents, and assumes such an arrangement could work.⁽¹⁹⁾

52. NAWL recommends that there should be a provision in legislation that recognizes that there are some cases where no access may be appropriate. These cases would include situations where there is sexual abuse of children, violence against the mother, or such high conflict between the parents that continued contact is toxic for the child.

53. NAWL recommends that there should be a presumption that children not be forced to go on access visits if they are fearful for their emotional or physical safety. Children's fears should be respected and should be a warning sign to professionals that there is a problem.

II. Supervised Access

54. Supervised access programs with good quality facilities for visitation must be made available in every jurisdiction to provide safe and secure settings for access. These must be fully funded and woman-centred with a mandate to protect women and children.⁽²⁰⁾

55. NAWL recommends that studies be undertaken to determine the effect of supervised access on children both in the short term and the long term. There is a presumption that parents "graduate" from supervised access. Often there are no controls in place to ensure that the children are properly cared for when the access becomes unsupervised.

56. NAWL recommends that there be no assumption that supervised access programs lead to better parent-child relations. There is no evidence to support this presumption which could be very detrimental to the child. In Ontario, a father sexually abused his child during an access visit at a supervised access centre. All access was then denied. This serves as an example that supervised access may not foster a better relationship between the parent and the child. Even absent abuse, supervised access may not necessarily be better than no access.

THE "FRIENDLY PARENT" RULE

57. NAWL recommends that sections 16(10) and 17(9) of the Divorce Act should be removed and any similar provisions in any provincial statute also be removed. Such provisions direct courts to give effect to the principle that children should have as much contact with each spouse as is consistent with the best interests of the child, and direct courts to take into consideration the willingness of the person claiming custody to facilitate such contact.

58. Widespread criticisms have been raised about these provisions. For instance, mothers may be punished if they object to joint custody or frequent or unsupervised contact by the other parent, by awarding sole custody to the other, so-called "friendly" parent. Women who try to block access to a father with a history of abusive behaviour risk being labelled as "unfriendly" and losing custody.

59. NAWL opposes the assumption that maximum contact with both parents is routinely in the best interests of all children. In fact, in some cases, maximum contact may be diametrically opposed to what is in the best interests of the children, especially in high conflict families. In some families, contact between the parents is toxic and unresolvable, and the level of conflict which results is harmful to the children. The justice system is an inappropriate solution to these situations, and is unable to fix these problems.

JOINT CUSTODY

60. Much confusion exists concerning the meaning of "joint custody." There is no legal definition of joint custody in Canadian law. In fact, parents, lawyers, and judges use "joint custody" to describe a variety of different arrangements. The lack of specific definition allows parents to craft their own model and call it joint custody, should they desire. The data regarding joint custody shows that most arrangements called joint custody are actually very similar to sole custody with access arrangements.

61. The use of joint custody presumptions in custody and access legislation was fully debated and rejected in 1985 at the time of the hearings on the introduction of the current Divorce Act. There was extensive consultation. Any presumption in favour of joint custody was rejected as a model for Canada.

62. The use of mandatory joint custody was, in fact, rather like a fad in American jurisdictions. Many of those jurisdictions (including California) have subsequently moved away from mandatory joint custody.

63. It is important to distinguish between shared caregiving of children and shared decision-making. Joint custody requires a great deal of contact between the parents, coupled with shared decision-making. Many separated parents are simply not suited to this level of continuing contact and continuing shared decision-making. This is especially true for families where the woman has been assaulted or abused, but it is true for other families as well. Many high conflict families cannot continue to have contact between the parents. As well, efforts to impose shared decision-making on separated parents are often at odds with the style of decision-making used by the family when it was intact, which is that the mother had responsibility for caregiving and the decisions that resulted from that responsibility.

64. Many claims for joint custody by fathers are based on a desire to share in decision-making, rather than a desire to share in the day-to-day caregiving of children.⁽²¹⁾ Many mothers would be happy to agree to joint custody arrangements if those arrangements did actually result in shared caregiving.

65. NAWL strongly opposes any presumption of joint custody, in any legislation whether it be federal, provincial or territorial. There is no evidence to support that a presumption of joint custody is in the best interests of children.

66. Custody is increasingly being split into smaller units, e.g., decision-making regarding religion, education, health, etc. This is a "back-door" entry into joint custody and is often used to obtain greater levels of control by access parents. NAWL strongly opposes any fragmentation of decision-making. NAWL recommends that the primary parent be the parent who makes all of the decisions related to the ongoing care of the child, including major decisions. This parent has the most involvement, the most experience and the most knowledge with respect to what is in the best interests of the child and the needs of the child.

67. In determining whether joint custody is appropriate, the emphasis should be on whether care-giving can realistically be shared, not exclusively on decision-making. It must be recognized that a generalized notion of joint custody and two parents cooperatively planning for their children's future is impossible for many separated parents.

^21. Carl Bertoia and Janice Drakich, supra, 592-615.