Overhaul to the Divorce Act

Radical overhaul to law would make false abuse charges a criminal offence

Chris Cobb

The Ottawa Citizen

Proposed major changes to the Divorce Act would give more rights to fathers and make false accusations of abuse in custody battles a criminal offence, the Citizen has learned.

The proposed recommendations of the Senate-Commons Committee on Child Custody and Access are the first concrete sign that the all-party group is primed to push for significant changes to the 30-year-old act.

The premise of the draft report is that all decisions regarding children of divorce should be based on the concept that ordinarily it is in the best interests of children to have both parents actively involved in their lives The committee wants the words "custody" and "joint custody" scrapped and primary consideration given to the continuity of child-care arrangements that existed before parents separated. In other words, both parents should be as involved with their children as deeply as they were before they separated.

Children seven years old and under, says the report, should live with the parent who has been their primary caregiver but as children get older they should be allowed a greater say.

The report adds that children should not live with a parent who has abused a child or partner and, before being involved in a child's life, an abusive parent must convince a court that he or she no longer poses a threat.

The draft report, entitled "For the Sake of the Children," will be tabled at a private meeting of the committee next week. Among the proposals are:

- The elimination of the terms "custody and access" from the act, to be replaced by the concept of "parental responsibilities."

- Obligatory attendance at a program where separated parents would study the effects of divorce on children. Certificate of attendance would be required before parents could proceed with divorce application.

- Separating parents should be encouraged to develop a comprehensive parenting plan, with a mediator if necessary.

- Special opting-out provision for families where there is a proven record of abuse towards one parent or the other -- or towards the children.

Alternative forms of dispute resolution to be used only when the abused parent says the threats have passed and when the abused parent agrees to mediation.

- False accusations of physical abuse be made an offence under the Criminal Code.

- Unreasonable prevention of court-ordered access be made an offence under the Divorce Act.

- Grandparents and extended family members become a legal third category. They should not be required to apply for access to a child but be allowed access to grandchildren under the concept of "the best interests of the child."

- Regular training for federally appointed judges on issues related to the impact of divorce on children.

- End the link between support payments and access.

- Any parent wishing to move a distance that would affect any parenting arrangements must give between 60 and 90 days' notice to the other parent. Any dispute over relocation should go to mediation before being heard by a court and adjustments made in child support if visiting parent incurs expenses he or she can't afford.

- The federal government should work with the provinces and territories to co-ordinate federal and provincial jurisdiction regarding children of separation and divorce.

The joint committee, co-chaired by Liberal MP Roger Gallaway and Liberal Senator Landon Pearson, is due to deliver its final report to Parliament by Nov. 30. Its recommendations will then have to be approved by the House of Commons and Senate.

The all-party committee has been dubbed the "Politically Incorrect Committee" because of the number of pro-father submissions it has heard.

Committee members heard three months of emotional, often controversial, hearings across the country. After the hearings, co-chairman Mr. Gallaway said the Divorce Act desperately needs amending because it systematically treats non-custodial parents -- mostly fathers -- unfairly and puts the wants of separated and divorcing parents above the needs of their children.

Feminist groups accused the committee of pro-male bias, partly because of the large number of men's groups it has heard from and partly because Mr. Gallaway and others have criticized the current system -- especially the cases where unproven or false accusations of abuse have become the basis for a court deciding on custody and access.

The committee was formed following a deal last year between then-justice minister Allan Rock and Liberal Senator Anne Cools, who was blocking passage of the government's child-support bill. Mr. Rock agreed to the committee's study of access and custody in exchange for passing the bill. Ms. Cools is a committee member.

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