Volume 15, Number 1, 1998
Articles
- Preface to Reforming Child Custody and Access in Canada and Parenting After Divorce - Brenda Cossman & Roxanne Mykitiuk, & Rhonda Freeman
- Reforming Child Custody and Access Law in Canada: A Discussion Paper - Brenda Cossman & Roxanne Mykitiuk
In March 1993, the Department of Justice, Canada, published and circulated a public discussion paper on child custody and access. Buildling on the public responses generated by the 1993 paper and more recent public and political responses to the reform of federal child support law, the Department has been attempting to clarify its approach to developing reforms to the law and practice of custody and access. We have identified seven issues that are in need of further debate and consideration: (I) finalizing the basic objectives and principles of child custody law; (II) identifing the features of a child focused approach; (III) incorporating the need for certainty and the desire to minimize future litigation; (IV) developing a general policy encouraging optimal parental contact; (V) developing a legislative framework that protects children and their mothers from abuse and violence; (VI) developing an approach to deal with high-conflict child disputes; and (VII) exploring process issues. This discussion paper is organised around these seven issues. Throughout the discussion of these issues, we identify an additional theme that requires further examination and consideration in the discussions regarding the reform of child custody ad access law, namely, addressing issues of gender equality.
In this discussion paper, we provide a preliminary examination of these issues. We canvass the possible justifications and criticisms of what appear to be the key parameters within which the legal reform of child custody and access is contemplated. Throughout this paper, we raise issues that we believe need further discussion and debate. We elaborate on the possible meanings and implications of these issues and raise specific questions that are urgently in need of further debate in the current public policy deliberations around the reform of child custody and access in Canada.
- Parenting After Divorce: Using Research to Inform Decision-Making About Children - Rhonda Freeman
The Federal/Provincial/Territorial Family Law Committee (Department of Justice) and the Special Joint House Committee on Child Custody and Access are reviewing the present legal regime governing custody and access disputes between parents who divorce. In 1993, the Department of Justice released a public discussion paper that summarized concerns and questions emerging subsequent to the 1986 legislative changes. In February 1997, concurrent with the passage of new child support guidelines, the Department of Justice renewed its committment to legislative reform with regard to parenting after divorce decisions. Canada is not alone in directing attention to this issue. During the last decade, several jurisdictions (i.e. Australia, Washington State, Florida, and Great Britain) made significant changes to their legislation. A companion paper, prepared by Brenda Cossman and Roxanne Mykitiuk discusses some of these examples.
This paper describes how divorce affects families and children as a context for renewed discussion about parenting plan decisions in the post-divorce family. Specifically, the research concerning changing families is outlined, special circumstances (i.e. high conflict, woman abuse, and parental alienation) that impact on parenting plan decision-making are discussed, and potential pathways to resolving parenting after divorce dilemmas are outlined.
- Lesbian (and Gay) Custody Claims: What Difference Does Difference Make? - Susan B. Boyd
This commentary reviews the state of custody and access law in relation to lesbian and gay parents and demonstrates that the apparent neutrality of the current principles applied by judges in making these determinations is a myth. It then raises some questions about whose responsibility it is to deal with homophobia and its impact on children. The paper's focus is on the situation where one parent in a previous heterosexual relationship comes out as lesbian or gay, usually in the context of leaving that relationship, and where a custody or access dispute arises. The examples are drawn mainly from Canadian custody cases between a lesbian mother and her male ex-spouse. Such cases arise more frequently than those involving gay fathers, due to the greater role that women play in the caregiving of children in most heterosexual relationships.
- Hawaii's Same-Sex Marriage Initiatives: Implications for Canada - Martha Bailey
This paper reports on the Baehr v. Miike case and the response of legislators in Hawaii and other American jurisdictions to the constitutional challenge. Hawaii's sister states and the U.S. federal government have been given substantial attention to the Baehr v. Miike case. In Canada, there has been relatively little discussion of this case, although it will have a significant impact in this country as well. Legalization of same-sex marriage in Hawaii would raise the issue of recognition in Canada of foreign same-sex marriages. This paper concludes that, given current case law and statutory reform in Canada, it is quite possible that such marriages would be recognized in this country. This paper also suggests that the Hawaiian experience is instructive for thos who seek to expand the legal rights and obligations of same-sex couples in Canada - a constitutional challenge to the exclusion of same-sex couples from the right to marry could well be successful in Canada or could at least lead to the adoption of a system of domestic partnership registration.
- Open Adoptions in Ontario and the Need for Legislative Reform - Shirley K. Senoff
This paper addresses the legal status of open adoptions in Ontario. Currently, adoptions in Ontario are governed by the Child and Family Services Act (CFSA); the existing legislation favours a "closed" approach to adoption, under which identifying information about the various parties in the "adoption triangle" is kept secret. Most Canadian provinces still follow this approach. British Columbia has so far been the only province to enact open adoption legislation. Most significantly, British Columbia's new Adoption Act creates a contact veto, which strives to accomodate one party's right to information and another's right to privacy. This paper argues that the traditional, closed approach to adoption is grounded in several stigmatizing adoption myths which continue to permeate the legal system and discriminate against adoptees, birth mothers and adoptive parents. Accordingly, this paper recommends specific legislative changes to Ontario's CFSA which would better serve the needs of all members of the adoption triangle.
Case Comment
- In the Family Courts - taken from the Syrtash Family Law Netletter