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What do you think about BC's Family Law White Paper? Read it at www.ag.gov.bc.ca/legislation
There is little to applaud in this document for the following reasons.
1) There is an attempt to soften the adversarial stance by providing assistance at the "front door" of the family justice system. This is far too late. This vision is too limited. Parents who arrive at family court are in crisis and turmoil, and feel angry, bitter and resentful. There need to be initiatives outside everyone's front doors. Given the epidemic proportions of divorce and common law relationships that break up, the absence of such a strategy is unconscionable.
2) The document fails to adopt shared parenting as a default position. Parents were good enough to rear their child before separation; they are good enough to rear their child after separation. This is the essence of shared parenting as a default position. Such a position would reduce animosity, which is the thrust of the document.
3) The document fails to list parental alientation, denial of access, and making false allegations as forms of family violence. In a chapter entitled "Children's Best Interests", a list is provided that refers to partner abuse. One has to question whose best interests are really being served. This leads one to be suspicious of the document.
The people of BC deserve better than this.
BC Men's Resource Centre
Here is the reply I sent to the Ministry at the time. I suspect that it fell on deaf ears.
Subject: White Paper - Family Law Act
Received: Tuesday, July 20, 2010, 7:40 PM
I am not a lawyer or other "stake-holder". I am simply a father of three currently in the midst of acrimonious divorce proceedings (is there any other kind?).
Having read through the White Paper, I am at first glance encouraged by the initial tone and the desire to provide alternatives to the Family Court system. I have some concerns, however.
1: Default position of the law should reflect equal roles of parents
My first and major point is that the default position of the law should be that the importance of the roles of both parents be recognized as being of equal value -- simply, that children need fathers too. This is co-existent with the stated aim of the review:
Make children’s best interests the only consideration in parenting disputes and identify children’s safety as an overarching objective of the best interests of the child test.
The 1998 report by the (Federal) Joint Commission on Child Custody and Access recognized that children's relationships with their parents should not end upon separation and divorce. This committee recommended that the Divorce Act be amended to add a preamble containing the principle that divorced parents and their children be entitled to a close and continuous relationship with one another.
For far too long in Canada and other jurisdictions there has been an implicit assumption that children are better off with their mother, and that fathers are seen as payers of child support. I cannot and will not defend "deadbeat" or abusive fathers, but there are many inequities in the system as it stands, and these must be addressed. It is my contention that the onus should be on the objecting parent to show, beyond reasonable doubt, why shared and equal parenting should not be ordered.
2: Court alternatives
I am fully in favour of encouraging alternatives to court. I am, however, concerned that parties may be encouraged to negotiate away their legal rights. The situation as it stands is that Family Law Mediators cannot give legal advice. I suggest that arbitration may well be appropriate, and that Collaborative Law procedures be encouraged. It may be helpful to all concern if the Provincial Government were to subsidize these alternatives, hence encouraging their use and freeing up the court system.
I am pleased that the Government recognizes the problem of failure to disclose relevant information. This has been a thorn in my side during my divorce case and I believe that the consequences of non-disclosure should be severe.
3: Best interests of the child
The vast majority of fathers love, and want to be involved with, their children even after divorce. It must be recognized that "the best interests of the child" usually include a loving and nurturing relationship with both parents. This is recognized explicitly in the United Nations Conventions On The Rights of The Child*, ratified by Canada, but not fully reflected in Provincial or Federal law or practice.
* in particular Articles 7, 9 and 18
4: Guardianship and Parenting Arrangements -- equal shared parenting
(a) There needs to be a recognition that, in order to maximize the financial benefits from the current Child Support Guidelines, there is currently a "Winner Take All" attitude to Child Custody and Guardianship. In other words, why would a spouse allow shared custody if she (and usually it is the mother) were to lose out financially as a result of doing so?
The only way to avoid this is the presumption of Equal Shared Parenting. as the default legal position -- much as there is the presumption of innocence in criminal law.
5: Recognition of the problem of false allegations
“Individual fathers relating their personal experiences and men's groups from across Canada testified that a tactic used by some parents and their lawyers, in an effort to deny parenting time to the non-residential parent (usually the father), is false allegations of physical or sexual abuse or neglect. These witnesses testified that this is a major problem that not only leads to denial of parenting time but also contributes to estrangement and alienation between fathers and their children. In some cases this estrangement becomes permanent. Estrangement may be avoided by maintaining contact between parent and child through supervised parenting.”
It should be recognized that, in order to further a personal agenda, or to ensure maximum gain from the legal process (e.g. securing sole possession of the matrimonial home, access to child support, or as leverage in custody disputes), false or spurious claims of neglect or abuse are made. This was noted by the Special Joint Committee on Child custody and Access in 1998 -- as quoted above -- and is borne out by anecdotal evidence.
The reality of the situation is that currently, almost any allegation of domestic violence or abuse leads immediately to arrest, a restraining order, and an order for sole possession of the matrimonial home. It does not take a rocket scientist to realize that this is a very easy way to obtain that which the courts would not normally grant. Like thousands of other fathers across Canada, I have experienced this myself. A dispute about money led to a call to the police, who informed me (even though I had done absolutely nothing wrong) that they had little to no discretion in such matters, and that if there were any further calls they would be forced to arrest me. The police agreed that I had not broken any laws, but that they were mandated by Government to act. This is surely wrong.
Any change to the law should provide for severe penalties -- either civil or criminal -- for such abuse of the system. Not only is it a waste of police and judicial resources, but also a form of child abuse in itself, in that it tends to lead to parental alienation.
The Family Relations Act, and associated case law, currently contribute to a "winner take all" mentality. I quote the following:
"...there is no right in the access parent to influence the upbringing of the child, although the Divorce Act sets out that the access parent has the right to make inquiries and to be given information...access is the right of the child, not the parent" -- Anson v Anson 1987
"the [parent] who usually has care or control is sole guardian of the person of the child unless a tribunal of competent jurisdiction otherwise orders" -- Family Relations Act, Section 27 (2b)
"...a person granted custody by order is sole guardian unless a tribunal of competent jurisdiction transfers custody to another person" -- Family Relations Act, Section 27 (4)
"[Guardianship] includes the full bundle of rights and duties for care of the child...case law on guardianship suggests that custody is for all practical purposes coextensive with guardianship of the person of the child" -- Anson v Anson 1987, Young v Young 1993, Robinson v Filyk 1996
Simply put -- you get custody, you get control, and scoop the emotional and financial pool. Again, this is surely wrong.
I fully support the efforts of the Government to clarify these issues and -- as stated in the White Paper -- to encourage parents to continue to co-operate in raising their children after separation. I would again argue, however, that the default position of the law must be a presumption of joint guardianship and equal shared parenting.
7: When Orders and Agreements for time with a child are not respected
I congratulate the Government on recognizing the problem and on its efforts to address these issues. My personal experience of being told "I don't care what a judge orders -- if [my children] don't want to see you, I won't make them" has shown that a carrot-and-stick approach is required.
No-one wants to see parents jailed for not allowing access, although I doubt that this happens on any regular basis. Despite the obvious fact that non-compliance with access orders is de facto Contempt of Court, there is (as noted in the White Paper) a reluctance to do anything about it. Nevertheless non-custodial parents must have some recourse, in order to maintain the bonds with their children and prevent alienation.
Again the solution is, in my opinion, a starting presumption of Equal Shared Parenting. Parents must know that the Courts believe that they have equal rights and responsibilities, and that these will be enforced.
Again I congratulate the Government on its attempt to clarify rights and responsibility of parents in this area. My main concern would be on the practical aspects of trying to maintain a loving and nurturing relationship with my children if, say, my wife decided to move to Alberta. Let's assume, for example, that I am paying $1600 per month in child support as per the Child Support Guidelines, plus extraordinary expenses, plus spousal support. Would any allowance be made in this for the expenses of children travelling between provinces? Or would it then become a fait accompli, in that one parent cannot afford to maintain their parental relationship?
I foresee further litigation in such circumstances, as I imagine that Section 68 (2) of the proposed legislation will be used to allow parents (particularly mothers) to relocate without notice, especially to another jurisdiction. Surely the legislation should be amended to include the words "previously noted " or similar? The onus must surely be on the relocating parent to satisfy a judge that such a risk of violence exists before being allowed to relocate.
9: Child Support
I suspect that I am crying in the wilderness here, but surely the Government of BC knows how expensive accommodation is in this province? Why cannot the non-custodial parent's accommodation expenses be taken into account?
Children suffer because one parent (often referred to as a "payer" -- an abhorrent term) is forced into near-poverty while the other gains financially.
Here again, a presumption of Equal Shared Parenting may provide a means of preventing such inequity. If shared parenting is the norm, then the standards of living of both parents will be affected equally. Surely this is justice? And surely this is in the best interests of the children?
10: Spousal Support
I have relatively little to say about this, except that, in my opinion, the responsibility of the supported spouse to become economically self-sufficient as soon as reasonably practicable should be stressed.
In regard to the question posed on page 135 of the White Paper: "Should the proposed statutory duty to disclose...extend to non-court dispute resolution too?" -- the answer must be a resounding "yes, of course" -- otherwise it's all pointless isn't it? One party could lie or not reveal the truth, an agreement be reached, leading to litigation when the deception is discovered -- thus defeating the object of the process. The non-court processes must surely still carry the weight and responsibilities of law.
Finally, I take issue with the statement on page 144 that:
"research shows that deliberately false or maliciously false allegations of violence are, in fact few"
...especially when that definition specifically includes "psychological abuse". Such an assertion is contradicted both by the wealth of anecdotal evidence and by the report of the Special Joint Committee on Custody and Access. Terms such as "psychological abuse" are nebulous and, as recounted above, in my case the police were called purely because my wife did not want to argue about money. I commend the Government for at least trying, however, to define "high-risk indicator behaviours", and I wish to stress that nothing I have said condones real violence or threatening behaviour. I must urge the Government though not to be naive in this matter -- people do make false and exaggerated allegations, and there is a presumption of guilt from the police and judicial system once such allegations are made. Such allegations are also made via affidavits and applications through the courts. Such false applications are, quite simply, perjury, and there must be some legal consequences to them.
Take away the incentive -- e.g. orders for sole possession of the matrimonial home or exclusive access to the children -- and you would doubtless weed out most of the false allegations. Again, the answer is the presumption of equal shared parenting.
I wish to thank you in advance for taking my comments and suggestions into consideration.