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National Post Lead Editorial

Right decision, wrong reason

Print edition A17 (online by subscription only), December 23, 2004

Irwin Cotler, the Justice Minister, announced on Tuesday that the federal government will hold off on reforming child custody laws. We can't say that's too much of a disappointment. If enacted, the expected changes would mostly have served to tilt the anti-father bias of Canada's family courts even further in favour of women.

First proposed by Mr. Colter' s predecessor, Martin Cauchon, the now-dormant bill would have scrapped existing provisions compelling the courts to grant "maximum contact" to both parents and severed the last remaining connections between payment of child support and access by fathers to their kids. Worse, it would have given judges the power to withhold all access to fathers with past histories of violent behaviour while permitting wives to raise allegations of abuse at divorce proceedings even if they had made no previous complaints of violence -- a recipe for false accusations in bids to win total custody.

The Cauchon law was also a direct slap in the face to the joint Parliamentary committee that recommended "shared parenting" -- i.e., granting both parents equal custody and responsibility for children at the end of the marriage -- after years of study. Despite the Senate-Commons committee having held extensive hearings on the subject, Justice department bureaucrats held another set tailored to suit their own views before submitting recommendations to the justice minister (then Anne McLellan) that were diametrically opposed to those of the committee.

But while the decision to put off the legislation doesn' t trouble us, the reasons behind it are more unsettling. By all appearances, the postponement of the child custody changes has nothing to do with Mr. Colter recognizing their flaws; rather they simply appear to have slipped down his priority list -- notably below Divorce Act changes to allow for gay divorce, which the Justice Minister is keen to have ready by the time same-sex marriage legislation comes before the House next month.

As bad as the proposed child custody amendments were, they were presumably a sincere attempt to make children' s lives better after the break-up of their parents. That the Liberals consider this less deserving of their attention than gay marriage and divorce is a little curious.

Far more of this country's children (roughly 35,000 annually) are affected by divorce than there are gays hurt by their inability to marry. Children of divorce are more likely to suffer behavioural problems, drop out of school, experiment with drugs, commit violence against a partner or spouse and run afoul of the law. Not surprisingly, they are also more likely to divorce from their own spouses later. But divorce is a modern fact of life, so improving the laws governing custody and access by non-custodial parents in order to lessen its adverse consequences ought to be among the government' s top priorities.

Rather than simply reviving Mr. Cauchon' s deplorable legislation when it suits him, Mr. Colter should turn his attention to crafting a new custody law more in keeping with the parliamentary committee' s common sense proposals. We hope that this will be one of the Justice Minister' s priorities in 2005