Justice

Parenting after divorce

Shared responsibility would replace custody

D’ARCY JENISH December 21 1998
Justice

Parenting after divorce

Shared responsibility would replace custody

D’ARCY JENISH December 21 1998

Parenting after divorce

Justice

Shared responsibility would replace custody

D’ARCY JENISH

William Hnidan can recite the date, Feb. 23, 1992, as though it were his birthday. He can remember what he was wearing—a winter parka—and what he was doing—feeding the birds at a park in Kelowna, B.C. He remembers all this because it was the last time he saw his daughter, Amiee, now 12. The 47-year-old Hnidan, a construction project manager and fathers’ rights activist who lives in Vancouver, has been embroiled in custody and access battles with his former partner since their daughter was a few months old. He estimates his legal bills at $100,000.

“It’s been a horrendous experience,” he says. “Horrendous.

And who suffers the most in the disputes? The children.”

Exactly. But for everyone caught between warring parents, the question is, what to do about it? Last week, a 23member federal committee proposed solutions in a 153page report titled For the Sake of the Children. Among other things, the committee recommends amending the Divorce Act by replacing the terms “custody” and “access” with the principle of “shared parenting,” which would give mothers and fathers equal decision-making power on matters of fundamental importance such as schooling, medical treatment and religious upbringing. “Currently, custodial parents make all the decisions and access parents are visitors,” says Liberal MP Roger Gallaway, who co-chaired the committee with Senator Landon Pearson, a fellow Liberal. “We’re saying judges should give both the same powers.”

But the committee was unable to achieve unanimity. The three Reform members filed a dissenting opinion, regretting that the report does not recommend criminal charges for false accusations of abuse during cus-

tody battles, and urging the government to guarantee access for grandparents. And the NDP’s Peter Mancini argued that judges should be directed to consider the potential for domestic violence before granting both parents access. Some observers contend that the divisions within the committee reflect even deeper splits in the public—which may lessen any interest on the part of the Chrétien government in proceeding with reforms. “I don’t think the Liberals are interested in going into this quagmire,” says Carole Curtis, a Toronto lawyer who submitted a brief on behalf of the National Association of Women and the Law.

According to Curtis and others, any discus-

sion of amendments would generate a highly emotional debate, essentially pitting men against women. The committee got a preview during the 55 hearings it held across the country over the past 12 months. It heard from more than 520 witnesses, and on the opening page of the report, Gallaway and Pearson observe that those who testified “brought a level of discernible tension that was evident at every meeting.”

But for all the passions the hearings stirred up, only a tiny minority of divorcing parents actually fight all the way to a family court. Expert witnesses testified that more than 90 per cent of divorces are uncontested. Even when there are disputes over the children or marital assets, the contentious issues are often resolved through mediation. In the end, less than five per cent of divorcing couples find themselves subject to court-imposed cusM tody and access orders. Yet, ac| cording to justice department I figures, some 44,000 children a were subject to such edicts as I of March 31,1996.

The current system has cre□ ated an aggrieved and vocal mi£ nority: fathers who feel the law and the courts are stacked against them. Many testified emotionally before the committee. One disgruntled man, 42-year-old John Viinalass, spent 19 days walking more than 300 km from his home in Sudbury, Ont., to Ottawa to publicize the release of the report, and his own dispute over access to his three-year-old son. Some of those fathers reacted positively to the shared-parenting proposal. “We got something I never would have imagined getting a year ago,” said Toronto software consultant EricTarkington, 50, who divorced in 1984 and went through a long battle for access to his son, now 17. “The term ‘shared parenting’ could lead to a tremendous cultural change in the way we go about separating families.” According to Gallaway, the term would en-

title a noncustodial parent to information about academic performance and medical treatment, which can be withheld under the existing system. The committee also rejected what it calls the “tender years doctrine,” under which judges routinely award custody of preadolescent children to the mother. “The Divorce Act should not punish one parent and reward the other,” says Gallaway. “The fact is, children deserve two parents.”

Advocates for women agree. But many also say that shared parenting, as envisioned by the committee, may be undesirable or even dangerous, particularly in the highly contested divorces that typically wind up before the courts. Curtis, who has specialized in family law for 20 years, says the conflicts are sometimes so deep and prolonged that they cannot be resolved. “We have to stop thinking that the justice system can solve all these problems,” she says.

Some women say they would be apprehensive about a law that effectively compelled them to maintain contact with an ex-partner. Regina homemaker and mother of six Jeannette Gill-Skulski, 35, who testified about her experiences with former partners, says she and her first husband shared custody of their two sons, and maintained amicable relations, after the marriage ended in the mid-1980s. Then, she had a third child in a commonlaw relationship with a man who, she claims, was abusive. Gill-Skulski has denied him access to their daughter, now 12, and he briefly pursued the matter through the courts. “In a case like my second relationship, you couldn’t expect shared parenting to work,” says Gill-Skulski, who has since had three more children with her second husband.

Amid all the discussion about children and divorce, two Toronto-area teenagers, Deja Gordon, 15, and her sister Zoe, 13, spoke movingly of their extraordinary and painful experiences. Their parents, Terry Nusyna and Ben Gordon, split up in 1989, then fought for seven years over custody and property. Gordon subsequently entered a common law relationship with writer Wendy Dennis, who published an article about his marital battles titled “The Divorce from Hell” in the February, 1996, issue of Toronto Life magazine. This fall, Dennis released a book with the same title about Gordon’s fight with his ex-wife. Last week, his daughters, whom he hasn’t seen for five years, sent several media outlets a letter challenging his version of events and accusing him of violating their right to privacy. Deja has some advice for divorcing parents. “Remember the kids,” she says. “Remember what’s best for them, even if that means making some sacrifices.” □