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Election 2004 Vote for Equality - Home > Issues > Reforms to the Divorce Act

Federal Lobby - Reforms to the Divorce Act

As many of you are aware, reforms to the Divorce Act have entered a new phase with the changes in the Liberal government. Paul Martin is now Prime Minister. Irwin Cotler has replaced Martin Cauchon as Justice Minister. Bill C-22, An Act to Amend the Divorce Act, has died on the order paper. A spring federal election is likely.

In our work on custody and access legislative reform, NAWL and many other women’s organizations across the country have communicated regularly with former Minister of Justice Martin Cauchon to ensure that the concerns of women and children are heard. We are now beginning to establish a relationship with Justice Minister Cotler, who has an extensive background in human rights law.

To this end, we have prepared a letter introducing ourselves and our position on custody and access law for Minister Cotler. We encourage women’s organizations across the country to adapt and use this letter to let the Justice Minister know that women remain concerned about the need for reform to the Divorce Act.

If you have any questions, please contact Pamela Cross, NAWL’s Family Law Reform Coordinator, at

Honorable Irwin Cotler
Minister of Justice
Government of Canada
House of Commons

January 16, 2004

Re: Custody and Access and the Reform of the Divorce Act

Minister Cotler,

We would like to congratulate you on your recent appointment as Minister of Justice. This is an exciting position to hold at a time when the federal government is involved in a number of very important and interesting justice-related initiatives.

We are writing with respect to one of those issues – the Divorce Act. As you are well aware, Bill C-22, An Act to Amend the Divorce Act, was introduced to the House of Commons in December 2002 by your predecessor, Martin Cauchon. It passed through first and second readings and was scheduled for committee hearings when Parliament was prorogued by then Prime Minister Jean Chretien in November 2003.

The National Association of Women and the Law (NAWL) has been actively involved in the process to improve the Divorce Act for many years. We urge you to promote reforms that will ensure both respect for the best interests of the child and women’s equality.

As you know, the Divorce Act has been the subject of considerable and intense scrutiny by the federal government, the Federal/Provincial/Territorial Family Law Committee, women’s equality-seeking groups and many other Canadians. There have been years of hearings, consultations, research and reports leading to Bill C-22.

Reform is urgently needed in this area. Indeed, the application of the current “maximum contact” principle and the de facto joint custody presumption that is being adopted by many judges across Canada and in Quebec do not benefit many children. In some cases, they jeopardize the children’s well being by forcing them to be in contact with abusive fathers. They also place battered women in a very vulnerable position, since they must maintain ongoing, frequent and extensive collaboration and coordination with their abuser, the children’s father. This often results in abusive men using the law and the courts to further harass and oppress their wives.

Fathers’ rights advocates – some of who are in the Liberal caucus – have been lobbying for shared parenting as the presumptive model after divorce. This was also indirectly recommended by the Special Joint Committee on Child Custody and Access, in its 1998 report entitled “For the Sake of the Children.” As you may recall, this report was highly controversial; it was the result of a flawed consultation process in which women’s advocates were unfairly attacked and criticized, and its recommendations were not supported by any serious research. In fact, it prompted then Minister of Justice Anne McLellan to recommend more research and consultation on the question.

The experience with shared parenting models in other jurisdictions and the extensive research and consultation that have been done by the Department of Justice over the last five years have demonstrated that it is not appropriate to have a presumption in favour of one particular model of parenting after divorce that would automatically be applied to all families. In particular, we refer you to the very thoughtful recommendations put forward in the Federal/Provincial/Territorial Family Law Committee’s Report on Custody and Access and Child Support entitled “Putting Children First,” which was released in November 2002.

NAWL has also consulted extensively with women across the country on this issue. A strong common theme emerged: women want a Divorce Act that promotes the best interests of children, that supports the equality rights of women, that acknowledges the realities of parenting responsibilities in Canadian families and that protects women and children from violence and abuse. Women have also made it clear that law reform will be futile if legal aid and advocacy services are not adequate, as is the case in many regions at the moment.

You have a proven commitment to an egalitarian, democratic society that respects and upholds the human rights of women and men of all communities and social conditions, as enshrined in the Canadian Charter of Rights and Freedoms. Much work has been done, both within government and in society at large, to advance women’s human rights in all spheres. It is imperative that we keep moving forward and not slip back into the “traditional” patriarchal values espoused by some members of your caucus.

We would be delighted to meet with you at any time to discuss these and other concerns.

Yours very truly,

Andrée Côté
directrice des Affaires juridiques
Association nationale de la femme et du droit
Director, Legislation and Law Reform
National Association of Women and the Law
1066 Somerset West, suite 303
Ottawa (On) K1Y 4T3
tel: (613) 241-7570 # 25
Fax: (613) 241-4657

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