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Family Law Issues Workshop
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Contents
The term "family law" refers to any of the laws governing families in various situations. This workshop looks at law affecting children in the two largest areas of family law: 1) What happens when people who are married or who are in common law relationships end those relationships:
The following are other related issues, but will not be covered in this workshop:
Other areas of family law include adoption and some young offender legislation, but these are not covered in this workshop. Both of the above aspects of family law have a particular impact on women, as women are most often the primary caregivers of children in families. Where the woman has a disAbility or is Deaf (WWD/DW), the impact can be unsupportive, unsympathetic, even damaging. Where she has also experienced or is experiencing violence, she is likely to find that family law is not a particularly safe or positive environment. And yet, especially if she has children, she likely has no choice. She will have to sort out custody and access, and abusive men rarely consent to allowing the mother to have unimpeded custody of the children. In this case, the matter will inevitably end up in the court system. That abusive ex-partner may raise issues of the mother's competence (particularly where he can exploit myths and stereotypes about her disAbility or Deafness), in which case she will also have to deal with child protection law. Child protection authorities may become interested in WDD/DW as mothers whether or not they have been contacted by an ex-partner, because of prejudiced views held by some about the "inherent unfitness" of mothers with disabilities. This workshop examines
both custody and access and child protection law from the perspective
of WWD/DW who have experienced violence and/or abuse from their partner.
For greater detail on the general operation of both these laws, we encourage
you to review our general custody and child protection workshops. When parents live together, they do not think in terms of custody and access, even though one parent (often the mother) may provide most (or even all) of the care and the other parent (most often the father) may spend little time with the children or planning/taking responsibility for them. However, when parents separate, they must decide who will have responsibility for the children. Generally, one parent will have most of the responsibility (usually termed "custody") and the other will visit with the children (have "access"). Decision making will sometimes be shared between the two parents, regardless of the day to day living arrangements for the children. For definitions regarding different kinds of custody and access, see the Appendix. Very often, it is the parent who had most of the child care responsibilities before the couple separated who will continue to have this responsibility after separation. In all but very rare circumstances, the other parent will have regular visits with the children. In some situations, usually where there are concerns about the safety of the children, these visits may be supervised. In other situations, where there is concern for the safety of the mother, the exchanges of the children between the parents may be supervised. A number of different legislative acts affect custody and access law. See the Appendix for descriptions of these acts. Where there is woman abuse in the relationship, custody and access can become complicated and difficult. Abusive men often make a claim for custody, even though they have not been responsible for the children during the relationship and even though they may not really want custody of them. They will make this claim in order to continue to try to control the mother. A mother who has a disAbility or who is Deaf may find her abusive ex partner raising the issue of her disAbility/Deafness inappropriately in the custody proceeding - he may try to allege that her disAbility/Deafness means she is not a capable parent. (This is true even where she provided most of the parenting before separation.) A woman in such a situation may have to disprove these allegations to the court by finding witnesses who can testify to her specific parenting abilities or who can speak generally to the ability of WWD/DW to parent appropriately. As well, a woman with disAbilities or who is Deaf may have relied on her ex-partner's assistance to support her parenting. After separation, whether or not there is abuse, she may not be able to rely on this assistance. If she wishes to have custody of the children, she will need to explain to the court what arrangements she will make to ensure that she can continue parenting effectively. Within families, children always have been and continue to be the most powerless people. They are vulnerable to neglect and even abuse, especially at the hands of their fathers. Even where they are not directly abused, they may witness the abuse of their mother by their father, which can have a profound impact on their emotional well-being. Societal misconceptions and prejudice about certain disAbilities may render mothers who are Deaf or have disAbilities with a similar lack of power. Uneducated and discriminatory authorities may feel they know what is best for these women and treat them as if they too are children. However, unlike children, the majority of WWD/DW are people with extensive life experience, capable of making appropriate decisions and aware of their own gifts, skills, and limitations. Such misconceptions and prejudice can make child protection situations particularly dis-empowering for WWD/DW.
Over time, legislation has developed to protect children as much as possible from neglect and abuse. There are provisions in the Criminal Code to prohibit many kinds of abuse. This is federal legislation that applies to the whole country. If someone is charged and found guilty of a criminal offence relating to the treatment of a child, s/he will receive a punishment ranging from probation to imprisonment. Provincially, legislation also exists to protect children, particularly within their families. In Ontario, this legislation is called the Child and Family Services Act. In other provinces, the legislation may have different names but it fulfills essentially the same function. Children are protected by the legislation in whatever province they reside at the time they experienced the abuse or neglect. There is much controversy over child protection legislation and its enforcement. Many people feel that children's aid societies (CAS), which receive their mandate and power from this legislation, are too intrusive. This over-intrusiveness may stem from:
WWD/DW may find themselves under the scrutiny of child protection authorities by virtue of their disAbility alone. Once scrutinized, it may be difficult to remove oneself from the child protection system. In some cases, women have contacted the child protection authority for support and assistance with parenting, only to find themselves the subject of an investigation. Other women are reported to the authority during pregnancy and have to fight to prevent the removal of their newborn from their care solely because the authority believes their disAbility prevents them from being able to parent. Other women, perhaps because of vulnerabilities caused by disAbility (a tendency to defer to authority, for instance), enter into what they believe to be "voluntary" agreements with child protection officials only to find those voluntary arrangements used against them later by the same officials.
Any parent has certain responsibilities they must fulfill in regards to their child, and will be expected to prove this when seeking the custody of their child from an ex-partner or maintaining custody within a child protection case. At a minimum, parents have a responsibility to ensure that their children are kept safe from physical, sexual and emotional harm and that they are not neglected. Parents must make sure that this is true no matter who is caring for their children: partner or ex-partner, relative, babysitter, child care provider, teacher, etc. In the best of circumstances, parents will provide their children with more than the bare necessities of life and will offer them stimulation, creative and intellectual learning opportunities, guidance and support. Of course, different people have different ideas about what abuse and neglect are. These differences may be cultural, racial, religious or class based. Some people believe even very young children can be quite independent while others believe they require very close supervision. Some families believe in corporal punishment as part of their religion. Some parents like to have their children sleep with them even when they are no longer babies. Some parents do not believe in vaccinations or in modern medical practices. These differences are one of the reasons child protection can be so difficult. Is this family simply following a different set of parenting practices that does not, within their belief system, jeopardize the child in any way or is this abuse? Spanking of children is an excellent example of this quandary, as is the rejection of modern medical practices. Despite the areas of confusion, there are some absolutes and guidelines:
Because of ongoing ignorance and bias, WWD/DW may be considered to be neglectful or even abusive parents if others (for example, family members, an ex-partner, teachers, the CAS) see them parenting differently:
Women with developmental disAbilities may face the greatest prejudice as mothers - from family, the public and the child protection authorities. There is a strong belief that people who are intellectually challenged are not capable of ensuring the safety of a child or, even where they can manage the basic care of the child, cannot stimulate her/him adequately. However, such a mother may be capable of establishing a consistent routine, "quality time," and generous activity and stimulation - all parenting skills recognized as essential by child care specialists, yet ones that may well not be present in the lives of children parented by so-called "normal" adults who lead overly-busy, hectic, work-centered lives. WWD/DW should not be presumed to be less competent than any other woman of mothering. Where she has specific needs for supports (e.g. For transportation, with housework, with assisting her child with schoolwork, etc.), those supports should be available in her community so that she can parent her own child. As one judge concluded in a child protection case a number of years ago:
When judges are deciding what custody arrangement is best for a child - whether the child is involved in a custody battle between parents or involved in a child protection case - the judge will use what is called "the best interests of the child" test. This test, which is vaguely worded in the legislation, is intended to allow a judge to consider a variety of factors in determining what custody arrangement to make. The wording is intended to focus attention on the child and what is best for her/him as oppose to the parents and the rights of the parent. Although in principle this is a good idea, the best interests test is so vague and general as to leave a great deal of room for judicial discretion. While this discretion can be a good thing when the judge is well-trained, forward-thinking and compassionate, it can be a bad thing when s/he is not. Generally speaking, the best interests test (the specifics of which are reviewed below) ignores the issue of violence within the family. As it is written, it also does not provide any guidelines with respect to how to decide these issues where one parent has disAbilities or is Deaf. Of course, judges are also guided by case law or precedent - similar cases decided previously by other judges. Case law can be helpful; however, often it is inconsistent itself. For example, with respect to violence within the family, there are judges who acknowledge the negative impact on children of witnessing the abuse of their mother by their father and there are judges who do not. There are judges who believe women's statements about being abused and there are others who do not without supporting evidence, such as a police report or criminal conviction. Many of these inconsistencies arise because different judges have different biases and beliefs about violence against women and children. The same is true for judges' attitudes towards WWD/DW and their capacity to parent. Particularly where the children's father presents (whether truthfully or not) as a competent, "abled" parent and where the mother's disAbility is one that makes it difficult for her to present in this manner (a communications disAbility, or an emotional/mental disAbility, for instance, that makes her a poor witness), some judges will make incorrect assumptions about who is the better parent. The best interests test is set out in the Children's Law Reform Act and includes seven guidelines for judges to consider in determining custody and access of children:
Judges are also to consider anything else they think relevant. This is where a judge's biases and ignorance about disAbility and parenting could be problematic, particularly if the issue of the mother's competence is raised by the other parent.
Before a child protection authority can apprehend a child from its family, it must establish that the child is in need of protection. The need for protection can stem from either abuse or neglect. As discussed earlier, there are certain absolutes in parenting; however, there is a great deal of grey area as well. The legislative definition of "child in need of protection" is defined vaguely and is subject to broad interpretation. For example, a child may be found to be in need of protection where the parent is unable to "adequately care for, provide for, supervise or protect" the child. How these terms are interpreted by individual child protection workers and judges will vary widely. Obviously, the manner in which these terms are interpreted will have a particular impact on WWD/DW and you will need to be prepared to enter evidence in a court proceeding to support any contention that you are fit and well.
Generally speaking, it is very important for WWD/DW to be prepared to deal with the issue of disAbility head-on in a custody or child protection case. She must remember that her rights and interests are set aside in these proceedings while the court focuses on the best interests of the child. Of course this is a false separation, as the best interests of mothers and their children are generally complementary to one another, but the reality is that they are constructed as, at best, separate and, at worst, conflicting. Preparation should include:
The law says that both parents have an equal right to the custody of their children, unless the parents agree otherwise or there is a court order. This means that if one parent leaves the relationship and takes the children with her/him, the other parent can proceed to court to obtain an order that the children be returned. When women leave men because of abuse, they generally do so quickly. There is seldom a custody order in place and getting the agreement of the abuser is not likely possible. In every such situation, the more quickly the mother can make her application for custody, the better. If, in the meantime, she is able to make safe arrangements for the children to have some kind of communication with the father (telephone, visits, etc.), this is also very good. If she can leave a note for the father when she goes letting him know that she will be in touch with him at a specific time to discuss the situation, that too would be helpful to her later custody case (although this obviously is not possible if she leaves in the midst of or immediately after an assault). When women flee violence with their children they must, of course, be able to satisfy the family court judge later that there was violence. This is sometimes more easily done when the woman has fled to a shelter, because then she has third party evidence. Getting such third party evidence may pose a challenge to WWD/DW if the shelter in her community is not accessible. Women who take their children when they flee are better able to succeed in a custody case if they have maintained some kind of contact between the children and the father. Again, this may pose a particular challenge to WWD/DW who may have to leave the area to find appropriate housing (which may make physical contact impossible) or who may not be able to facilitate access because of their disAbility.
Whether dealing with an abusive partner or child protection authorities, women should always have legal representation. This is even more true for WWD/DW who may need a lawyer for specific reasons:
Getting a lawyer is easier said than done. Lawyers experienced in the area of disAbility and parenting are few. Lawyers who accept legal aid are almost as rare, and many WWD/DW live on limited incomes so would need to rely on legal aid. The possible negative consequences of both custody and child protection cases are significant:
For more information
on lawyers, please follow this link to the page on "Finding
a Lawyer"
Divorce Act: This is a federal law that applies to all married people applying for a divorce. It sets out how custody is to be determined - using the best interests of the child test. It also sets out that parents who want custody need to be prepared to support and encourage access by the other parent. This is known as the "maximum contact rule" and is of concern for women who fear that their ex partner is a risk to the well-being of the children.(See our general custody and access workshop for details on how to apply for custody under this legislation.) Children's Law Reform Act: This is provincial legislation in Ontario that sets out how custody and access are to be determined. Anyone living in Ontario can rely on this legislation for this purpose - even if they are married but not applying for a divorce. (See our general custody and access workshop for details on how to apply for custody under this legislation.) Family Law Act: This is also provincial legislation in Ontario. It governs child and spousal support, division of property, possession of the matrimonial home and restraining orders. (See our general custody and access workshop for details on how to apply for custody under this legislation.) Child and Family Services Act: This is the provincial legislation in Ontario that protects children from mistreatment within the family. It also deals with adoption and some young offender matters. It sets out what makes a child "in need of protection." It also gives the child protection authority the mandate to become involved with families where it appears the children are or may be at risk of harm or neglect. The authority can become involved with a family on either a voluntary or non-voluntary basis. In Ontario, child protection agencies are most often called the Children's Aid Society or, sometimes, Family and Children's Services. These agencies have a number of social workers on staff who are specially trained to work with situations of potential child abuse and neglect. When information comes to the CAS that a child is or may be in an inappropriate situation, the CAS will conduct an investigation. The type of investigation and the timelines will depend on the seriousness of the situation. For instance, a call from a hospital that a child is there having been injured by a parent, the investigation would be immediate and highly detailed. On the other hand, if the call comes from a neighbour who expresses less clear concerns, the investigation would not necessarily be immediate. Sole Custody Sole custody means one parent has all the responsibility for caring for the child and for making all of the decisions in the child's life. A parent with sole custody will almost always have to give the non?custodial parent access to the child. Joint Custody Joint custody means both parents are responsible for caring for the child and for making big decisions that affect the life of the child.
Shared Parenting Shared parenting is another way of saying joint custody. The courts sometimes use the words "shared parenting" instead of "joint custody" because shared parenting sounds more caring. Access The parent who does not have primary responsibility for the child usually has access which allows him to spend time with the children. Access can be frequent or infrequent, regular or irregular. It may be strictly scheduled or worked out by the parents on an ongoing basis. Primary Residence The primary residence is where the child spends the majority of her or his time. Courts usually say where the child's primary residence will be. Even if parents have joint custody, the child will usually have a primary residence with one of them and have access with the other. Voluntary Involvement: where the parent(s) consent to the involvement of the CAS Involuntary Involvement: where the CAS goes to court to get an order because the parents do not consent Supervision Order: where the child remains in the home, but the CAS is involved with the family Apprehension Order: where the child is taken into the custody of the CAS. If the CAS believes the child is at risk of immediate harm, an apprehension can take place without an order of the court Ward/Ward of the Courts: when a child is taken into the custody of the CAS, she/he is considered a ward of CAS which now responsible for that child's safety and care Temporary Wardship: (also known as "society wardship") where the child is in the custody of the CAS, cared for by foster parents or members of the child's extended family on a temporary basis Crown Wardship: (also known as "permanent wardship") where the child is made a permanent ward of CAS and may be adopted. There may or may not be access to the parents. This workshop was developed by Pam Cross of the Ontario Women's Justice Network (OWJN) It was coded/programmed for online viewing by Barbara Anello with permission of the OWJN
Added Information on changes to the Divorce Act and Child Custody & Access Divorce Act Amendments Announced Lobby Material from OWNCCA now available Take Action on Child Custody & Access
Changes
to the Law Threaten Abused Women & their Children
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