Globe and Mail

CHILD CUSTODY

The great divide

As they listened to testimony about wives who made false
allegations of child abuse, who turned children against
fathers and who chronically violated court orders, members
of a parliamentary committee could only imagine what the other
side would say. The wives were barely heard from.

Saturday, December 5, 1998
ANNE McILROY
Parliamentary Bureau

Ottawa -- Grant Wilson was one of the first witnesses from the war zone.

The president of the Mississauga Children's Rights Group was intense but well-spoken at his appearance before a parliamentary committee studying child custody and parental access after divorce. In an authoritative tone, he cited a string of statistics to back up his argument that fathers are discriminated against by the legal system. He testified about the problem of dads being denied access to their children despite court orders, which he said police are often reluctant to enforce.

Then he got personal.

"I am a victim of domestic violence. After we split up, my ex-wife broke into my house. I was assaulted in a bloody battle. She was convicted of assaulting me. She received no sentence, by the way. My tooth was damaged. My face was bleeding from the nose and on the cheek. My wrist was cut. I was badly bruised all over. The police came and took her out of my house. This was three weeks after my fiancée moved in with me and the children.

"She's much smaller than I am, and I used a very minimal amount of force to try to subdue her. It's very difficult to explain to people that this happened, because many people say that because I played college football and hockey, I could destroy this woman. They said that a couple of shots to her face could probably rearrange her face for the rest of her life."

Mr. Wilson was drawing on his own experience to illustrate that mens' groups need government funding to do research into such issues as violence against men, and that women should be jailed if they persistently deny fathers access to their kids.

It was the kind of disturbing testimony that was to become everyday fare in the emotional roadshow presented across the country by a Senate-House committee studying child custody and access. Its final report will be released next week.

As the Senators and MPs listened to testimony about wives who made false allegations of child abuse, who turned children against their fathers, and who chronically violated court orders allowing dads to spend time with the kids, committee members could only imagine what the other side would say. The wives were barely heard from.

The other side

Grant Wilson's ex-spouse Susan Despres was furious when she saw his comments to the committee quoted in this newspaper. The couple had separated in 1990. Ms. Despres already had a daughter, Natasha, 20, from a previous marriage. Together the couple had Cortney, now 15, and Cristy, 14.

Ms. Despres paints a picture of an ex-husband who made sharing custody extremely difficult. She went to court repeatedly and in 1996 was granted sole custody. She says that in recent weeks he hasn't even left a number where they can get in touch with him.

She did plead guilty to assaulting Mr. Wilson in 1991 when they shared custody, but court documents say she did so after her daughter phoned saying she was afraid her father would physically hurt one of them.

And in 1993, Mr. Wilson was convicted of assaulting Ms. Despres' sister, Sylvia White-Tatemichi, when she was pregnant and looking after the girls for the weekend. The court documents show he was sentenced to 14 days in prison and three years probation.

One daughter, Cortney, says she doesn't want to see her father despite the fact that her mother has always encouraged her to maintain a relationship.

"He sure made our life really, really bad," the girl says. She has received counselling from a social worker at her school and has gradually come to terms with the fact that for now, she isn't interested in spending time with her father.

"Honestly, every time he phones me, he makes me upset and he upsets my house."

Mr. Wilson couldn't be reached to comment on his wife's version of events. There is no phone listing for the Mississauga Children's Rights Group, and the number he gave the joint committee has been disconnected.

But the story of his trauma, as told to the committee, and story of the trauma of his ex-wife and children, as not told to the committee, illustrates the difficulties the politicians faced when they delved into the complex and emotional world of custody disputes.

For some committee members, including co-chair and Liberal MP Roger Gallaway, it doesn't much matter if they heard from only one side.

"I don't know if it detracts from what Mr. Wilson had to say," Mr. Gallaway says. "We'll never remove these personal feelings from the issue. We aren't mediators. But we can find some way of removing the road blocks in the system."

There were other members to whom it mattered a great deal.

Peter Mancini, a New Democrat MP and family lawyer from Cape Breton, says he didn't listen to a single personal story without critically assessing it.

"I know from my years in family law, that there is always, always another side."

How it all started

The special committee was established, in part, to address the concerns of angry divorced fathers who felt the legal system was treating them unfairly. Its creation was part of a government compromise made early in 1997 to get a new bill through the Senate that would standardize the way support payments are made. Senator Anne Cools, a champion of the rights of divorced dads, had threatened to join with Progressive Conservative senators to block the legislation, which women's groups had sought for years.

Senator Cools and groups representing fathers argued the bill was unfair because it contained measures that punish non-custodial parents, for the most part men, who chronically fail to make child-support payments. But it didn't address the issue of custodial parents, for the most part women, who deny fathers access to their children despite court orders.

That was the job the committee, which was established as part of a deal with Senator Cools and her PC allies to clinch the passage of the bill.

The committee's formal mandate, however, is not to examine whether the legal system is unfair to men, but rather to assess the need for a more "child-centred" approach to family-law practices and policies that would emphasize joint parental responsibilities.

Emotion takes over

The committee and its hearings were controversial from the beginning.

Senator Cools was not a committee co-chair, although many people assumed she was. She was a dominant and sometimes disruptive force, leaving her chair during testimony to confer with mens' groups in the audience. She grilled representatives from battered womens' shelters on whether women lied about being abused. These groups appeared before the committee to argue against changes that would put women who had been abused by their spouses at risk of further violence.

On the second day of the travelling hearings, Senator Erminie Cohen was reduced to tears as she lamented the gender "war zone" the committee had created.

There was a feminist call to arms. Womens' groups urged their members to write Justice Minister Anne McLellan to complain that the hearings were unfair. Secretary of State for the Status of Women Hedy Fry wrote an opinion criticizing the idea of mandatory joint custody. She was denounced by MP Gallaway and Senator Cools at a press conference that had Liberals publicly attacking fellow Liberals. Men's groups have complained to the Canadian Human Rights Commission about Ms. Fry's comments.

The committee's final meetings on its recommendations last week were reported to be "tense." But in the end, the angry dads didn't get what they were asking for. Although the committee has brought unprecedented public attention to their grievances, it is not expected to satisfy the demands of fathers' rights groups.

A draft of its final report doesn't recommend new criminal sanctions for non-custodial parents who keep kids from the other parent, or for those who make false accusations of physical and sexual abuse. It also doesn't recommend automatic joint custody if parents can't agree on what do with the kids, something many mens' groups had pushed for.

"Critics may have underestimated the capacity of the committee to do the appropriate appraisal of both the quantity and the quality of the presentations," says committee member Carolyn Bennett, a Toronto-area Liberal MP.

"Some people felt that the mens' groups had quantity and that the women's groups had quality," she adds.

Moderation prevails

In the end the parliamentarians reacted cautiously to the more emotional testimony and appear to have given more weight to independent experts, including representatives from the Canadian Bar Association, and child advocates and mediators, than it did to angry fathers such as Grant Wilson.

The fact is, most Canadian parents who divorce manage to agree on custody arrangements involving their children. Experts testified that the number of couples who go to court to fight over their kids is about 15 per cent, although no comprehensive statistics are available. Many of the committee's recommendations appear to be geared toward helping parents avoid becoming part of that minority.

The committee is expected to recommend mandatory education for parents who can't agree on a custody arrangement -- courses that would explain the impact that custody battles have on children. However, if there is violence in the relationship, both parents wouldn't have to attend at the same time.

It will also recommend giving children more of a voice in divorce, perhaps through the creation of a federal "friend of the child" office. It will advocate increased funding for mediation and other forms of non-adversarial dispute resolution.

"There was a recognition that the system we have isn't working the way it should," says committee member NDP MP Mancini. "It is too adversarial, too focused on winners and losers."

One of the main recommendations is aimed at removing the stigma of losing a custody battle by changing the language that defines who gets the kids. It recommends removing the terms "custody" and "access" from the Divorce Act and replacing them with "shared parenting."

Sources on the committee say this change is important on a symbolic level, because if implemented, it will acknowledge in law that both parents have responsibility for raising their children. But they say "shared parenting" is not the same as joint custody and that the recommendations won't lead necessarily to changes in the amount of time non-custodial parents get to spend with their children, or give them more power in decisions about education, health care or leisure activities. It will require parenting plans that would give non-custodial parents more of a say.

When it comes to parents who are locked in a bitter and divisive legal fight, the politicians were reluctant to do more than try to make sure the process is as speedy as possible and that existing laws governing perjury and violation of court orders are enforced.

Experts told the committee that there are far more fathers who don't bother seeing their children than there are dads who are denied access, something the politicians are powerless to do anything about.

There is also a question of jurisdiction. Although the Divorce Act is a federal statute, the provinces have jurisdiction over administering parts of it. Many of the issues that angry dads raised with the committee fall into provincial or shared jurisdication, including that of mediation and courses for parents and custody enforcement.

The problems raised by Grant Wilson, for example, would not fall within federal jurisdiction. He and Susan Despres were common-law spouses, an area governed by the provinces. They never married, she says, because at the back of her mind she knew she wouldn't be with him forever.

Voices of sanity

Here's a sampling of the testimony of parents, experts and politicians at last spring's parliamentary committee hearings into child custody and access.

"In closing, on behalf of Megan and Sean and all of the other children caught up in the pain game of family separation, I beg of you to amend the family law in order to force adults to deal with emotional issues first before seeking legal counsel -- this is my recommendation and it's the only one I have -- and for once and for all time I urge you to recognize that fathers are much more to their children than pay cheques and dispensable victims of misguided anger and revenge by ex-partners and by courts who look other way. We love our children" -- Allan Vokey, who testified in Halifax.

"I'd just like to share with the witnesses that I too feel enormous concern for what I call the assertions about the inherent moral superiority of women. You know, the assertions that women can do no wrong. It is killing us in this country and it's murderous to children." -- Senator Anne Cools.

"Interparental conflict in separating and divorcing families exists on a continuum. Families disputing custody and access are large in number but still a minority, anywhere from 10 per cent to 25 per cent of the divorcing population, which is about 40 per cent in Canada. By definition, families disputing custody and access are considered high-conflict. A higher frequency of personality disorders has been found in these high-conflict families. A subset of these includes families where there has been domestic violence." -- Barbara Jo Fidler, mediator, who testified in Ottawa.

"The judicial system, as it now exists, provides significant financial and emotional incentives to use the children as bargaining chips. I've struggled to understand how society can throw parents into an adversarial system and expect them to emerge as partners focused on mutually raising healthy, sound children." -- Allen Crawford, a divorced father who testified in Ottawa.

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