In June, Conservative MP Maurice Vellacott (Saskatoon-Wanuskawin) introduced Bill C422, a private member's bill which, if passed, would significantly change the custody and access provisions of the Divorce Act. The proposed changes would remove the concepts of custody and access and replace them with a legal presumption in favour of equal parenting.
Canadian women's equality groups, including the National Association of Women and the Law and the Feminist Alliance for International Action, believe Bill C-422 would have a serious and negative impact on the safety and well-being of women and children post-separation. The bill does not reflect the realities of many Canadian families.
Children benefit from ongoing contact with both parents when it is based on a genuine interest in the child, but not when it is motivated by the desire to maintain power and control post-separation, as is often the case when the pre-separation relationship has involved woman abuse.
Bill C-422 does not acknowledge the seriousness of violence against women within the family. The critieria it proposes for the "best interests of the child test" focus on preventing "parental alienation" and only mention family violence as a secondary consideration - and then only if it is committed in the presence of the child.
Fathers' rights lobbyists began to call for a presumption of joint custody when Canada's child support guidelines were introduced in 1997. These guidelines streamlined the amount of child support to be paid to the custodial parent (usually to the mother) according to the incomes of the non-custodial parent (usually the father). The guidelines allow for a lower amount of child support to be paid if the children spend at least 40 per cent of their time with each parent.
In response to pressure from fathers' rights lobbyists, then minister of justice Alan Rock established a Special Joint Committee on Child Custody and Access, which included representatives from both the House of Commons and the Senate, where fathers' rights groups received considerable support. The committee held hearings that frequently featured open hostility towards representatives of women's organizations, and where violence against women and child sexual abuse were routinely dismissed as not being critical issues in custody law. Fathers' rights groups argued that family courts discriminated against fathers by systematically granting custody to mothers.
And yet, in 2006, 44 percent of custody cases that went to court resulted in orders for joint custody - more than double the rate in the mid-1990s and four times the rate in the late 1980s. In other words, even without legislation spelling out a mandatory shared-parenting regime, courts are making such determinations in nearly half the cases that come before them.
The Joint Committee's 1998 report, For the Sake of the Children, wentonto recommend a presumption in favour of shared parenting and outlined a test to determine the best interests of the child, which ignored violence within the family and focussed on parents' commitment to maximizing contact between the child and both parents. …