DAWN Ontario: DisAbled Women's Network Ontario

 

Family Law Issues Workshop
Custody & Access and Child Protection
for Women with DisAbilities and Deaf Women

 

Contents


arrow
Introduction

arrowWhat is custody and access?

arrowWhat is child protection?

arrowWhat are my responsibilities as a parent?

arrowWhat is the "best interests of the child" test?

arrowWhat is a "child in need of protection"?

arrowWhat should I tell the court?

arrowWhat if I leave my abuser and take the children?

arrowDo I need a lawyer?

arrowAppendix


 

Introduction

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:

  • what living arrangements are to be made for the children? (custody and access)

  • will one person pay support to the other for the children? (child support)

  • if there has been violence or abuse, how will the victim(s) be kept safe? (restraining orders, supervised access and/or exchanges)

The following are other related issues, but will not be covered in this workshop:

  • how will the property be divided? (property division, matrimonial home)

  • will either adult have to pay support to the other? (spousal support)


2) What happens when the children in a family are not being properly cared for:

  • who has the authority to intervene?

  • what can that authority do?

  • what are the rights of parents and children in these situations?

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.


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What is Custody and Access?

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.


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What is Child Protection?

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.


Legislation Affecting Child Protection

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.


Children's Aid Societies

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:

  • a tendency by some child protection workers to impose their own values on the families with whom they work;

  • a lack of awareness, understanding and respect for racial, cultural and class differences in the way people parent; and

  • a lack of information about and a biased attitude toward WWD/DW and their ability to parent effectively.


Caught in the System

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.


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What are my responsibilities as a parent?

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.


Some Absolutes and Guidelines

Despite the areas of confusion, there are some absolutes and guidelines:

  • Sexual abuse is NEVER allowed. This means any kind of sexual contact between a parent and a child.

  • Physical punishment (slapping, spanking, hitting with a wooden spoon, etc.) is generally considered abuse by the CAS, although it may not always be considered a criminal offence by the police.

  • Children who are threatened, intimidated or otherwise unreasonably controlled by their parent(s) are considered to be emotionally abused.

  • If you do not have adequate, safe housing, you may be found to be endangering your children through neglect. The same is true for failing to keep appropriate and sufficient food in the house for the children or for not dressing them appropriately for the weather.

  • If you do not give necessary medical care to your child, this may be considered neglect.

  • If you do not supervise your child appropriately, or allow her/him to be exposed to inappropriate situations (e.g. criminal activity) this may be considered neglect.

  • Witnessing abuse can be considered a failure to protect children from harm and can result in CAS intervention.

Specific Concerns for WWD/DW

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:

  • A mother who cannot read storied to her child because of a visual impairment or a developmental disAbility - what an outsider may not see is that she regularly tells stories to her child or, as the child learns to read, the child reads to her.

  • A mother with a mobility impairment may need to rely on her child to run errands, pick up groceries and help her with housework. This may look burdensome to an outsider who thinks children should not have such responsibilities, but in fact the child may take great pride and pleasure in helping the mother. She and her mother can develop important skills and may find they become very close as a result of sharing tasks around the house.

  • A mother who is Deaf and chooses to "Ferberize" her baby (a common parenting technique in which a baby cries itself to sleep rather than being rocked or soothed to sleep by an adult) may have a neighbour interpret periods of crying as neglect or abuse.

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:

"The question should be one of deciding whether, in light of [her] individual capabilities, [this parent is] able to meet [her] parental responsibilities. If the answer to this question is no, then the judge should decide whether, given the proper assistance and intervention, the [mother] can be provided with the tools necessary to care adequately for [her] child. This issue should not be resolved by simply noting the difficulties involved in securing the needed help when the child remains within the home."


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What is the "best interests of the child" test?

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:

  1. The love, affection and emotional ties between the child and everyone claiming custody (usually but not always the two parents), the child and other members of the child's family who live with the child and the child and others involved in his/her care. There are many ways this guideline could have an impact on a WWD/DW. For instance, if she and her partner live with his mother, who provides a great deal of the physical care of the child because of the mother's disAbility, it is likely there are strong ties between the child and the paternal grandparent. The mother, if she seeks custody, will have to provide evidence of how she plans to maintain that tie when she no longer lives with her husband's family.

  2. The views and preferences of the child. These are only relevant when they can be reasonably determined and are seldom (except with older children) the sole determining factor. However, all mothers whose partners are abusive need to anticipate that their partner will attempt to influence the children to say they want to live with him. He will do this whether or not he wants the children to live with him because the threat to a mother of losing her children may be enough to make her remain in the relationship.

  3. The length of time the child has lived in a stable home environment. This criterion may prove to be a challenge for WWD/DW if they have been, for example, hospitalized frequently over a long period of time and the children have been more consistently cared for by someone other than the mother.

  4. The ability and willingness of each person applying for custody to provide guidance, education, necessities and special needs for the child. This is the one criterion that actually uses the word "ability". There is no doubt that this section can be interpreted negatively for WWD/DW. A mother with a disAbility will have to establish to the judge's satisfaction that she can meet the needs of her child. Where she requires the support of others to do so, she will have to provide proof that she has this support. Where she will require the cooperation of her former partner, she will have to prove she has that cooperation - not an easy matter if he is abusive and seeking custody himself.

  5. Plans for proposed care and upbringing. Both parents have to tell the judge in a custody case what it is they have planned for the children in both the short and long term. This includes information about such areas as:

    schooling:
    Will they continue in the school where they are presently enrolled or will they have to change schools because the parent is relocating? What if the new school is inaccessible to a mother with a mobility disAbility? How will the mother with a visual impairment ensure that homework is completed?

    extracurricular activities:
    Will these continue as before? How will the mother in a wheelchair get her child into the inaccessible arena dressing room and changed for the game if this is something the father has always done in the past? How will the Deaf mother assist her child in practicing the piano?

    future possibilities:
    How will the mother with a bipolar disorder ensure she can manage the challenging teen years? How will a mother with a gradually degenerative illness such as Multiple Sclerosis know when she needs to ask for more help?

  6. The permanence and stability of the family unit in which the child will live. This can be a particular challenge for WWD/DW if her disAbility is changing condition and past stability in the family depended upon the presence of the father or a living arrangement that included members of his family.

  7. The relationship by blood or adoption between the child and persons applying for custody.

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.

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What is a "child in need of protection"?

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.




What should I tell the court?

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:

  • Being ready to have your medical and other records introduced as evidence against you
    For example, your husband may be able to convince the judge that your medical records should be turned over for examination by the court or that he should have ongoing access to your medical records. A child protection agency may be able to argue that the content of your files is relevant to a determination of your fitness or ability to provide adequate care, supervision or control of your children. You need to be informed about your rights to confidentiality of your records. (You may want to review our other legal workshop for WWD/DW on the disclosure of records.)

  • Being prepared to enter your own medical and other records where helpful
    For instance, if you have a neurological disorder such as multiple sclerosis and your medical file shows that it is in early stages, is not incapacitating and its progression will be slow, this would be helpful information to bring to the judge.

  • Gathering as much detailed evidence of your parenting abilities as possible
    Where you have been the primary caregiver in the past, you should produce detailed descriptions of this. If you will need supports to parent independently post separation, you should tell the judge exactly how you intend to do that.

  • Presenting third party evidence from people who can support your case
    For example, your child's teacher or day care worker who can describe your parenting; another mother with a similar disAbility who can talk about how she manages the challenges; a family member who can prove her previous and on-going commitment to provide you with child-care support.

  • Presenting expert witnesses
    Judges are greatly influenced by "experts" and it is likely the other side, especially in a child protection matter, will use them. Particularly where your disAbility may mean you is a poor witness (in the eyes of the law), it would be very helpful for you to have an expert who can provide evidence as to why this should not have an impact on your parenting ability.

  • Asking the children's father for his support in a child protection matter, if it is safe to do so
    Where your ex-partner has no concerns about your ability to parent, he could be an effective witness on your behalf in a child protection investigation.


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What happens if I leave my abuser and take the child/ren?

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.

The best course of action for a woman is to document and record her actions and reasons for them, obtain independent evidence wherever possible and meet with a lawyer immediately to begin to sort out the issues of custody and access.




Do I need a lawyer?

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:

  • to communicate disAbility-related issues to the court

  • to find expert evidence

  • to find and prepare expert witnesses

  • to ensure the woman understands exactly what is going on in her case

  • to prepare the woman to be the best possible witness for her case.

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:

  • the mother could lose custody of her children to her abuser

  • unsafe access arrangements could be made

  • the children could be removed to the care of the child protection authority

  • there could be a police investigation if the abuse allegations are serious enough

  • she could be placed in a joint custody situation that is unsafe to her

For more information on lawyers, please follow this link to the page on "Finding a Lawyer"

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Appendix


Legislation Affecting Custody and Access

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.


Custody and Access Glossary

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.

  • Joint custody does not necessarily mean that the child spends an equal amount of time with both parents.
  • Courts often grant joint custody because it allows the child to have a relationship with both parents.
  • Joint custody may be unsafe for you if your ex-partner is abusive and you cannot come into contact with him.

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.


Child Protection Glossary

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.


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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

For the latest updates on Custody & Access
visit the Ontario Women's Justice Network - OWJN

 

 


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Page last updated March 21, 2003