Tuesday, July 26, 2005

Can Conservative Politicians Read?

I found this little gem lurking on the web this morning. Apparently, the Conservatives want to amend the Divorce Act so that it "better reflects the priority of children's rights".

Okay - it's a noble enough thing. All too often, when parents divorce, the children wind up as pawns, caught in the middle of their parents' difficulties. I would have no particular problem with amending the divorce act to give the courts - and law enforcement officials - more tools for dealing with deadbeat parents who don't contribute to the rearing of their children, or that provide for reasonable access.

... MP Jay Hill, has a private member's bill currently before the House of Commons that proposes such changes to the Divorce Act


After reading that little gem, I went and dug up MP Hill's bill, and read it.

The first thing that struck me was that 80% of the bill is redundant - it's already specified in great hoary detail in section 16 of the act. By placing their amendment in section 15, Hill has simply created a situation where the act is logically inconsistent with itself. (Section 16 deals with custody issues, section 15 deals with support obligations)

Looking further at it, the resulting law creates some fairly serious problems into the future for a couple divorcing:

1. The "best interests" of the child are inadequately defined. This leaves it open to the interpretation of the judiciary. Phrases like "best interests" are always worrisome in law.

2. It creates a situation where abusive relationships could well be reinforced/continued as a result. (Remember, the child may not be the victim of abuse)

3. The amendment presupposes that it is 'always' in the best interests of the child to have a relationship with both parents. This may not be true for a variety of reasons - not merely child abuse.

4. It constrains the mobility of the custodial parent, possibly unreasonably.

5. Once again, as is the case with other parts of the divorce act, it fails utterly to put in place penalties for non-compliance.

6. Even if both parents agree to a "shared parenting" arrangement as part of the settlement, the amended law makes little or no effective provision to deal with situations where domestic violence has been part of the picture. In fact, wording in the amendment would hamstring the ability of the court to consider such issues.

If there is a problem with respect to the impact of divorce on families today, it is not the divorce itself, nor is it the custody issues per se. It is the utter lack of ability to enforce spousal and child support orders. The so-called "deadbeat parent" routine happens far too often, and the law is virtually toothless about it.

I know of one situation where the child is "co-parented", but one of the parents contributes nothing towards the support of the child - whether it be school fees, food, clothing or daycare. Why? Because the courts have no tools whatsoever to enforce a support order with. (and at this point, the primary custodial parent is so sick of the whole mess, they're just living with it - fortunately, they can make ends meet.)

Instead of mucking around with the divorce law to create some idealized notion of a child with a happy relationship with both parents, the Conservatives would do well to spend a bit of time coming up with ways to allow the courts (and law enforcement) to enforce the support and custody orders.

The Divorce Act already deals with issues of custody and support. The Conservative amendment is little more than a sad attempt at making it harder for a couple to divorce, in the misguided notion that it's "better for the children" if a couple stays together.

If this country elects a Conservative government in the near future, expect to see an attempt to legislate society back to the 1950's idealization of the "nuclear family". At best such a legislative regime would be ill-advised. At worst, it could be very damaging to a lot of people - no matter how noble its goals.

3 comments:

Anonymous said...

It wouldn't suprise me if they try to outlaw divorce, because after all, they believe that marriage is forever. I also suspect they'd try to make it so that women don't have any rights in a marriage relationship.

Social conservatives are a scary bunch.

JN
www.nishiyama.tzo.com

Grog said...

You're probably correct - especially if "Team Byfield" happens to be anywhere near the leader's inner circle. (Whoever the leader is - it's not likely to be Harper - I can hear the knives being sharpened from here)

Anonymous said...

But wait! The religious "right" don't have divorce in the church, so if you are married in the church, divorce is a logical impossibility, hence there ARE no divorce rights...

Just wait until our own CCC (Cu Clux Clan, er... I mean Concerned Christians Canada) take power...