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The Canadian Federation of Business and Professional Women


Implications of Divorce Act on Women – 2004





Sub-Category: GENERAL

Resolution Number:












THEREFORE BE IT RESOLVED that BPW Canada strongly urges the Government of Canada and the Minister of Justice to adopt in their entirety the 14 Recommendations proposed by Andr�e C�t� and Pamela Cross on behalf of the Ontario Women�s Network on Child Custody and Access, the Ontario Women�s Justice Network and the National Association of Women and the Law in their Preliminary Analysis of Bill C-22, An Act to Amend the Divorce Act, dated March 8, 2003. The recommendations are as follows:�A) Amendments to Bill C-221. The Divorce Act must begin with a Preamble that establishes the reality and gendered nature of violence within some Canadian families as well as the presence of male power and control within many more. It must also explicitly acknowledge the lack of equality still experienced by Canadian women and the impact this has on the issue of custody and access. The Preamble should also set out the fact that, both historically and currently, women have been and are the primary caregivers in most Canadian families, and this must be acknowledged when custody and access decisions are made. In addition, the Preamble should propose an equality rights framework for interpreting the provisions of the Divorce Act, and in particular should prohibit any discrimination on the basis of class or socio-economic conditionoriginal heritage, race and ethnic origin, disability and sexual orientation. 2. The concepts of custody and access must remain the terminology used in legislation dealing with caregiving arrangements for children after their parents have separated. This language is well understood by judges, lawyers and those using the family court system. In jurisdictions where language has been changed, there has been confusion and increased litigation. 3. If the proposed language is to be maintained with respect to parenting time and decision-making, the responsibilities of care giving and decision-making must be tied together to prevent abusive fathers from maintaining rigid decision-making control while abdicating any actual care giving responsibilities. 4. The definition of family violence contained in section 16 must include sexual and psychological abuse. 5. The best interests of the child test set out in section 16.2, clause (e) must include both race and ethnic origin. The issue of Aboriginal heritage or upbringing must be dealt with in its own clause, in recognition of the unique place of Aboriginal peoples who live in Canada. 6. Legislation must openly recognize that there will be cases where no parenting time and/or no decision-making authority at all is appropriate in order to protect the safety and well being of both the mother and children. In particular, the Divorce Act should include a presumption against a perpetrator of domestic violence having what is now referred to as sole custody or joint custody.B) Operational Issues7. Appropriate arrangements must be created or expanded to ensure that supervised access or parenting time” be available in all cases where it is required. These services should routinely be provided as part of the family court system. Federal, Provincial and Territorial governments must ensure that the services are accessible, secure and provided by supervisors with specific expertise in cases of child abuse and violence against women. Services must be racially, culturally and linguistically appropriate to the diverse families in Canada. 8. There should be an expedited family law process for women and children in abusive relationships. 9. Legal aid services must be viewed as a right and made available to all women who require them. Legal aid services must ensure that barriers to access, such as literacy issues and barriers for women with disabilities are removed. French language services and language interpretation must be available when needed. The Federal government must provide funding for legal aid to Provinces and Territories for family law matters and must ensure that provinces and territories use this money appropriately. 10. Lawyers, judges and all family court personnel must receive mandatory training in the new legislation that also includes training on the realities and dynamics of women’s poverty and violence against women and the differential impacts of poverty and violence among women, especially in the context of ongoing family court proceedings. 11. Mediation must never be mandatory. Where a woman discloses past abuse/control issues, she should not be expected to enter or continue with mediation. Mediation is not counselling; it is a process with serious legal implications for the participants. Therefore, mediation should not be recommended as a form of therapeutic intervention for so called “high conflict” family law disputers. Use of any form of alternative dispute resolution must never be a required prerequisite to family court access nor a requirement for receiving legal aid or any community support services related to family law issues. 12. Given the high incidence, but low reporting in family court files, of violence against women and children, and given that family court personnel often fail to identify the impacts of violence when it is disResolved, every case before the family court must be examined for the possible existence of violence and coercive control. 13. Measures need to be developed that will ensure that the determination and enforcement of child support payments will not be delayed or otherwise made more difficult because of the amendments to the Divorce Act. 14. Measures need to be developed that will ensure that children are not made more vulnerable to international kidnapping because of the proposed amendments to the Divorce Act.”

©BPW Canada

Article ID: 12992