Private Member's Bill to fix the Divorce Act carries: more work is required...

Anyone observing the happenings in the House of Commons between 5:30 pm and 6:30 pm today might have observed something entirely rare: it seems a Private Member's Bill, c-252 to amend the Divorce Act: access for spouse who is terminally ill or in critical condition, passed unanimously. If I counted correctly while watching the vote, all Liberals, NDP, Bloc and Conservatives, voted in favour of the Bill.

The Bill goes like this: "a former spouse's terminal illness or critical condition shall be considered a change of circumstances of the child of the marriage, and the court shall then ensure that the former spouse is granted access to the child as long as it is consistent with the best interests of that child."

The Bill was motivated by a mother in Alberta who had lost custody of her children and who was being denied access to her children by her ex-husband. The mother, who also had terminal leukemia, had wanted to reconnect with her children before her death. Sadly, this did not happen and she was unable to reconcile with her children, who will likely be affected emotionally for not having been able to make peace with their mother before her death.

The Bill went through 7 reports by the Standing Committee on Justice and Human Rights Committee who amended the bill to consider the "best interests of children". The Bill also passed three readings in Parliament.

This is a good start, however, many more changes to the Divorce Act are required. At the end of the day the federal government must protect children's rights to have meaningful access to both parents, whether one parent is terminally ill or not. Children are best served by having meaningful access to both of their parents, except in rare cases. In spite of this, there is no federal policy preserving this right, and no affordable, accessible, timely or non-litigious way of resolving situations of parent-child access denial, even if the reasons for the access denial are entirely frivolous.

This case is the extreme exception and not the rule: more women deny their ex-husband access to their children than the other way around - though the decision to deny access or not is never a gender issue - it is a people issue. The spin sometimes suggests otherwise, but don't be fooled. This is because 25 years after the Charter of Rights and Freedoms (made it illegal to discriminate on issues of gender) gender is still the single most important factor in determining who will retain custody of children in cases of divorce. As a consequence, this also determines who pays child support to whom, making child support yet another gender based transfer payment, regardless of need and the relative incomes of the parents involved.

Therefore, a small number of a large percentage of women who have custody of their children deny access, while a smaller number of a (much) smaller percentage of men who have custody do the same thing. While both men and women sometimes deny access because of their character (rather than their gender), women have more opportunity because JUDGES preceding over the family court make gender congruent still with the best interests of children of divorce.

Why are matters of the family not subject to the standards set by the Charter of Rights and Freedoms? Do judges have an obligation to upphold Charter principles in relation to all adjudicated decisions or does the "tender years doctrine" trump individual rights? This collective interpretation by the judiciary of where the Charter applies and where it does not, as a byproduct, keeps lawyers in lots of work, the "blind advocates" at bay and monies flowing from men to women. Gender rather than character is the determining factor, which does not make the cut with respect to the standards set by the Charter, no matter how you slice it.

This Bill opens the door to fixing the Divorce Act that had been suggested without action by federal reports in 1998 and 2002. More equitable federal policy on child / parent relationships will put the onus on the provinces to live up to such standards and apply family policy through the provincial courts in a gender sensitive manner. This could also neutralise the dangerous trend that has resulted the highest court in our land setting family policy that coincidentally (or not) has made the practice of family law more profitable by the way it rules on matters of the family.

Unfortunately, "blind advocates” seem want to spin this tragedy into a "men victimising women issue" on a child access issues. For those who work in the system or who have lived through a divorce, especially where children are involved, they would admit that the trend actually goes the other way ( if they were being perfectly honest) .

Women have a clear advantage when it comes to matters of the family. Because there is no place to consider gender so acutely in a just Canadian society, "blind advocacy", like the "boy who cries wolf", has no credibility. Furthermore, "blind advocacy" on this issue is dated and now comes off as pure “spin”. All issues are people issues ... in contrast gender should never be the distinguishing feature in a society with a Charter of Rights and Freedoms.

So, in the spirit of fairness and equality, I re-publish a strong Liberal contribution to fixing the issue of child -parent assess. The Resolution on the Rights of Children to have Meaningful Access to both Parents, is gender neutral and was passed by the Lac Saint Louis Federal Liberal Riding Association and unanimously by the Quebec Liberal Women’s Commission in November 2005:

Resolution on the Right of the Child to Have Meaningful Access to Both Parents

Whereas the United Nations Convention on the Rights of the Child stipulates that children should have access to family members;

Whereas it is in the best interest of the child to have access to and strong relationships with both parents;

Whereas the federal government has not implemented policy that is in the best interest of the child or the blended family, despite reports in 1998 and 2002;

Whereas non-residential parents can be unilaterally and with no involvement of a higher authority denied access to their children without adequate, timely or accessible remedies.

Whereas the federal government had prioritized child support and remains inactive on child access;

Whereas children and their non-residential families stagnate under lopsided policy priorities;

Whereas the provinces administer and interpret the federal Divorce Act, with long delays and inadequate remedies to child access issues that hurt child-parent relationships;

Therefore be it resolved that the Liberal Party of Canada urge the Government of Canada to implement policy prioritizing access and protecting the rights of children to have access to both parents.

be it further resolved that the Liberal Party of Canada urge the Government of Canada to implement policy giving equal weight to relationship support between parents and children as to financial support.

be it further resolved that the Liberal Party of Canada urge the Government of Canada to create standards and legislation to support provincial and territorial governments in the enforcement of child access similar to those set up previously to support the enforcement of child support.

As long as special interests do not get in the way - and block equitable change on this issue like they did after federal reports in 1998 and 2002 - we may actually get somewhere now. After all, the political will is an invaluable asset when it comes to making fair change.