Report on Federal-Provincial-Territorial Consultations on Custody, Access and Child Support in Canada

APPENDIX C: REPORT ON NEWFOUNDLAND AND LABRADOR (cont'd)

With regard to custody and access generally, we recommend:

  1. Legislation should articulate a presumption that custody of children should be with the primary caregiver of the children. This should be based on past history of parenting.
  2. The primary caregiver should be the person who has the primary decision making authority. This parent has the most involvement, the most experience, and the most knowledge with respect to what is in the best interest of the children.
  3. Sections 16(10) and 17(9) of the Divorce Act which states the ‘friendly parent rule' should be removed.
  4. The current separation of child maintenance and access should be preserved. That is, access should not be tied to child support.

Relocation and Mobility

As was described in the context section, people in Newfoundland and Labrador face many social and economic difficulties. With the collapse of the cod fishery and the resulting massive unemployment in some communities, women may need to move for employment, school, or housing. Relocation and mobility are consequential realities in Newfoundland and Labrador. About relocation and mobility, women said:

"My ex-husband has seen the kids for two hours in the last two years, yet I want to go away for a work term, and I need his permission…Even when men choose not to participate, they still have the right to keep me here."

"Some of the custody orders have conditions such as you can't leave the area with your children. She can't leave the area but he can leave the province to look for work. She has to go through the courts to get permission to go on holidays to PEI."

"I've gone to court twice now, trying to move for work. I haven't been able to leave the area because my son is not allowed. His father hasn't been by in years."

Requiring the partner with access to have a say in relocation and mobility issues, creates barriers to making decisions which are in the best interest of the child. In maintaining a child-centred philosophy, recognition must be given to the fact that a child's best interest is linked with the well-being of the custodial parent, not the access parent (Wallerstein & Tanke, 1996). Maintaining the children's relationship with the primary caregiver should be paramount. Women having to relocate because of the social and economic realities of Newfoundland and Labrador should not be penalized.

Women stated that another reason for relocation, was the need to move away from an abusive partner.

"This man said to his ex that the only way she would be able to leave town is in a body bag, so she dropped the issue because she was so intimidated."

"[Lisa] was so scared to leave her house, even just to get the mail. Her ex's family would verbally harass her on the street and he was never far away, like stalking her. He was really abusive, so it's no wonder that she picked up her kids and left town. But now, she's the one who is considered wrong. He's [the father] actually trying to find her and get custody. All she was trying to do was protect herself and her kids."

Violent and abusive relationships heighten the need for the primary caregiver to have sole decision making when it comes to relocating. Living in an environment that is safe and free from abuse toward the woman or children is more important than the father's right to access. Abusive men should not be facilitated by the legal system to further control women.

With regards to relocation and mobility, we recommend that:

5. The decision to relocate should be made by the primary caregiver. This individual is best able to make decisions which are in the children's best interest.

Violence Against Women and Children

In discussing women's experiences of custody and access, violence against women and children was repeatedly raised. About custody, access, and control women said:

"There are so many issues of power and control in abusive relationships…kids are used as leverage."

"Most men want to have control over the family unit, they don't want responsibility of their kids."

"Women are losing custody of their kids to abusive men, because the men are manipulative and know how to use the system."

"It is crucial that the justice system be educated about what happens in abusive situations. A lot of the times what the man is trying to do is control the woman."

"A teenager gave custody of her child to the father because she couldn't handle any more of the threatening phone calls, so she just said to the boyfriend - here take the baby."

Women reported that men's attempts to obtain joint custody or liberal access were often more about the men wanting to continue the control or abuse of women rather than about continuing a relationship with the children. Jaffe (1995) found that men who were abusive or controlling were more likely to fight a mother in court for custody as a means of continuing to dominate or abuse.

Control and abuse may not end upon separation or divorce. The Canadian Violence Against Women Survey (Canadian Panel on Violence, 1993) reported that 20% of women who had experienced abuse from a prior partner had experienced violence during or following separation. The severity of violence increased in 35% of cases after separation. "Custody and access disputes often become tools for batterers to further abuse women and children" (Ad Hoc Committee, 1998, p. 11).

Although, the current legal system espouses to be sensitive to issues of abuse and violence, many women spoke about how their experiences and those of their children were dismissed.

"I came from an abusive relationship and I was told repeatedly by Legal-Aid that this was not an issue to be raised in mediation."

"The guy was convicted of sexually assaulting her [the mother] and it wasn't even brought up in the custody hearing. Because she was assaulted and stalked by this guy, she ended up having a breakdown and went to hospital and this was used against her in court. She went out and got help for her illness."

"When [Bev] was murdered a lot of the key points were around custody and access. Access was used so he could see her and he use to say that he had as much rights to see the children as she did and he used this to wear her down."

"At [the transition] house, there was a women who left an abusive situation and he got a custody order where she had to bring the child back to her home community. Meaning that she had to go back into the violent situation."

"I have been working with a woman who has a child with a man who has been charged with two counts of child sexual abuse and both cases were thrown out because of technicalities. When she went to block his access to their child, because the cases never got a guilty verdict, it was not allowed to be brought up in court. Again, she didn't have good legal services, because there were two police officers willing to go to court to testify how they thought this man was so dangerous, but her lawyer didn't summon them as witness."

Women in the focus groups reported that they were told outright or felt that the fact that they had been abused was not relevant to custody and access. They were not treated with sensitivity or their was little awareness about the dangers and dynamics of violence against women. The rights of fathers were often given priority over the safety of the mother and her children. Abusive men must not be considered satisfactory parents.

Repeatedly, women spoke about the need for courts to reflect the reality that abuse and violence against the mother has direct affects on the child, whether the child was present or not.

"I think if there is abuse on the woman then right away there should be limits on his access until he can prove otherwise… In a custody hearing the way the man treated his partner should affect his access."

"What I have been noticing is that when I have been called as a witness for the woman about what the children have talked to me about, I have experienced many times where the children have been profoundly affected by the way their father has treated there mother. But repeatedly the defence lawyer or the judge will tell me that they only want to hear about situations where the men were directly abusive to the children. I continue to try and make the point that witnessing the abuse of their mother is a direct effect on the children, but they discount that. It is so difficult to convince the court of abuse to the children."

Violence and abuse against the mother is violence and abuse against the child. Children who live in a home with violence or fear of violence, face short- and long-term consequences like fear of abandonment, bed-wetting, eating problems, aggression, worries about their mother, and becoming abusive themselves or accepting violence in future relationships. "Women and children will not be protected until laws and policies stop separating abuse cases out as an exception and start taking a strong stand against abuse" (Ad Hoc Committee, 1998, p. 20).

With regard to violence and abuse against women and children, we recommend:

Legal System

Many of the women in the focus groups expressed concerns about the legal system with regards to custody and access. Presumptions adopted by the courts, long waits for court dates, problems with Legal-Aid, problems with supervised access programs, and concerns about mediation were raised. About courts presumptions, women said:

"Unified Family Court [only available in St. John's] has taken a presumption that there is going to be shared parenting and people know that you can go down and kick and scream…and nine times out of ten, you won't get sole [custody] unless there is a problem…like child abuse."

"The court thinks that the best situation is a two parent family, mother and father, in all situations, unless there is extreme child abuse."

Women experienced many problems with courts and Legal Aid.

"Legal aid lawyers don't even have time for mothers… There need to be Custody Legal Aid Lawyers."

"Women who have lawyers through Legal Aid which is in Stephenville usually don't see their lawyer until the day of court and another problem here is that we only have court once a month."

"She lost custody of her child, her ex has full custody and it seems that the reason she lost custody is that she is not as well off as him. He works. She is on social assistance. She had to go to Legal Aid. She was bounced from one lawyer to another because they said they said they don't have time to deal with this case. She ended up getting a lawyer flown in from St. John's [a four hour flight] who hardly spent any time with her and when she went to court she lost custody of her child."

"Women are going into court having seen their lawyers for a short time before the case appears in courts. Meanwhile, the men's lawyers are totally prepared and have character witness for them. This is because women don't have their own resources and are dependant on Legal Aid. The other thing is that if the husband is using Legal Aid the woman has to find someone else."

"At Legal Aid, custody and access cases are not a priority with them. Cases can be dragged out for long periods of time, because of this people are getting worn down by the system."

"They moved the court out of Port Aux Basque. Now women have to travel to Stephenville to see their lawyers and to go to court. Many women just give up because the process is so difficult."

Long waits for court and short preparation times with Legal Aid lawyers were situations common across Newfoundland and Labrador. Women stated that the legal system is not providing the services they need. Decisions like moving the court out of Port Aux Basque (which was a fiscally motivated decision) are having direct effects on women's experiences around custody and access. Similarly, federal government cut-backs to the Legal Aid program and the program's subsequent restructuring, have meant that women are not being well represented in court.

With regard to supervised access, women said:

"In our experiences, supervised access doesn't last longer than six weeks. Then the abuser has open access to the kids."

"One woman I worked with, he ex-partner was abusive to her and the kids. She got supervised access, but her ex's new girlfriend was the supervisor. That's just not good enough."

"When I was appointed as a supervisor, one guy I worked with tried to convince me that women just didn't understand a father's approach to expressing affection towards a daughter. If I didn't already work with issues around sexual abuse, I might have been manipulated to believe that his actions were okay."

Women's experiences with supervised access was negative. They reported that they need supervisors who are trained and aware of power dynamics in relationships. Further, supervisors should be trained staff of the courts, not members of either parent's family. When supervised access is awarded, women said that the duration is only short-term. As a result of a lack of resources, men who need supervised access have opportunities to hurt their children and in many cases their ex-partners. Supervised access should not be seen as a temporary measure. It should continue until there is clear evidence confirming that there is no need for supervision to ensure the safety of women and children.

About mediation, women said:

"Women are being forced into mediation and this is a really bad thing. If they refuse, it can be used against them. It is a bad thing if a woman has had a bad relationship with the man - abusive - How is she going to be able to talk openly and freely with him there?"

"Women have felt pressured to go through mediation… Threatened that court dates will be set back if they haven't tried mediation first."

"Mediation can be very good if both parents want it, but what do people mean by mediation? Are people looking at mediation as how do we get the best responses and I guess that this buys into the whole Joint Custody issue again. We mediate to try and find somewhere in the middle where both parents are going to be satisfied and feel like they can walk away with something good. I think I would have concerns with how that mediation is going to be outlined."

All of the women responded with concerns to the idea of mediation. Although, everyone recognized that there were situations when mediation would be a better option than court, everyone stated that mediation must be a voluntary option. That is, mediation should not be made mandatory.

Women had concerns about the use of mediation with couples where abuse and violence was part of their relationship or in relationships where the woman or her partner were experiencing problems related to alcoholism, drug abuse, or their mental health. Mediation in such situations would facilitate the continuation of power imbalances. In addition, women had concerns about the goals of mediation, the training of mediators, and the lack of standards and accountability.

With regard to the legal system, we recommend:

Recommendations

  1. Legislation should articulate a presumption that custody of children should be with the primary caregiver of the children. This should be based on past history of parenting.
  2. Primary caregiver should be the person who has the primary decision making authority. This parent has the most involvement, the most experience, and the most knowledge with respect to what is in the best interest of the children.
  3. Sections 16(10) and 17(9) of the Divorce Act which states the ‘friendly parent rule' should be removed.
  4. The current separation of child maintenance and access should be preserved. That is, access should not be tied to child support.
  5. The decision to relocate should be made by the primary caregiver. This individual is best able to make decisions which are in the children's best interest.
  6. There should be a presumption that abuse, whether physical, emotional, economic, or sexual abuse of one parent by the other, is a primary factor in decisions about custody and access.
  7. There should be a presumption, that an abusive spouse is precluded from having either custody or unsupervised access to the children.
  8. Legislation must recognize that there are some cases where no access may be appropriate. These cases would include situations where there is abuse of children, violence against the mother, or such high conflict between the parents that continued contact is toxic for the children.
  9. As was recommended by the Ad Hoc Committee (1998), before a parent is granted supervised access or is moved from supervised to unsupervised access, there should be clear evidence that the batterer has become non-abusive. Evidence must include demonstrated changes in behaviour and attitudes, which encompass taking total responsibility for the abuse, understanding of the fear and reluctance for contact, and a willingness to engage in access based on the needs of the woman and children. Attendance at an anger management course should not be taken as indicative of these changes occurring.
  10. Education, training, and re-training is needed for all workers in the justice system including mediators, home assessors, access supervisors, lawyers, and judges around issues of power, violence, abuse, and gender analysis.
  11. Custody and access cases should be given priority in the court system.
  12. Civil Legal-Aid must receive more funding from the Federal and Provincial Government in order to adequately meet the needs of their clients.
  13. Supervised access programs must be made available in every jurisdiction. They must be fully funded and sensitive to abuse and violence issues.
  14. When adequate supervision is not available, women should not be required to provide access.
  15. Mediation should not be mandatory in family law disputes. Further, there should be no requirement that mediation be considered before access to the justice system.
  16. Mediators need training, standards, accountability, and clear goals.
  17. Mediation should never be used in cases where abuse or violence is suspected.

In addition, we endorse the briefs submitted to the Joint Committee on Custody and Access by the National Association of Women and the Law and the Ad Hoc Committee on Custody and Access Reform.

We encourage that whatever changes that are made to federal legislation, will be mirrored in provincial and territorial legislation.

Conclusion

The Provincial Association Against Family Violence and the Provincial Advisory Council on the Status of Women are pleased to have had this opportunity to present our visions to the Special Joint Committee on Custody and Access. For many years, women have not felt protected by the courts but rather that their interests were being placed in further jeopardy. Now that the Federal Government is ready to hear our realities and recommendations, we are hopeful that the vulnerability of women and children in custody and access disputes will be validated and dealt with.

We are adamant that the current justice system is not good enough. It is not sensitive to the power imbalances in relationships, the rights of mothers and children to safety and protection, nor the magnified problems in rural parts of our country and province.

We have based our concept of child centred on our values and beliefs and the experiences of women who told us that to be truly child centred means responsibilities and willingness to place the needs of the children first, before personal needs of the parents.

We are concerned that so many Federal Government decisions are fiscally driven. There are feminists who fear that the work of the Joint Committee may speak more about father's rights than mother's realities of caring for and protecting children. Yet, we are hopeful that by hearing the experiences of women and taking more time to design a child centred approach, the Federal Government will finally bring about the changes that are based on a recognition of inequality and the intrinsic value of children in Canadian society.

References