© 2007  Karen Selick

An edited version of this article first appeared in the December 14, 2007 issue of the National Post.
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Problematic in Pink

The Liberal Women’s Caucus—the 21 female Liberal MPs headed by Belinda Stronach—is attempting to woo women voters with its recently released Pink Book, Volume II.  The biggest headline-grabber of its many policy prescriptions was that the Divorce Act should be amended.  This suggestion may make the Liberals lose as many male votes as they gain female votes.  In fact, when the ramifications are explained to Canadian women, they too may find the proposals repugnant enough to reject. 

First, it said, let’s amend the Divorce Act to include “consideration of family violence in determining [child] custody.”  Currently, the Divorce Act says that the court “shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.” Additionally, “the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.”

Do the members of the Liberal Women’s Caucus fancy themselves the only people wise enough to know that spouses shouldn’t assault each other, and that doing so might traumatize one’s kids or, at the very least, set a bad example for them?  News flash: lawyers and judges know this too.  As a family law practitioner for more than two decades, I have never seen and cannot imagine any lawyer seriously objecting, or any judge ruling, that evidence of a parent’s violence towards other members of his or her household would be irrelevant in determining a child’s best interests. 

Indeed, a database search reveals that judges frequently hear evidence regarding domestic violence during custody trials.  One Ontario judge even wrote explicitly in a 2002 case: “I find that interspousal violence adversely reflects one's ability to parent.”  However, there are also numerous reported cases where judges have ruled that an individual’s past violence does not outweigh the benefits he can confer by continuing to parent his child. Every case is different, and must be decided on its own facts.

So what harm would it do, the Liberal Women’s Caucus might argue, to specifically direct the court’s attention to domestic violence, if courts are already considering it anyway?  

The impact would be subtle, I believe, but nevertheless real and harmful. It would elevate domestic violence to a new level of prominence in the minds of custody-seeking parents and litigious lawyers.  It would encourage over-anxious or vindictive spouses to make spurious or inflated claims, by providing a more perceptible reward for such fabrications. 

False allegations of violence are already a serious problem in family law.  I have had numerous male clients report that their wives had threatened to concoct tales of violence, or to exaggerate minor incidents into something bigger.  Some women even attempt to provoke their husbands into physical violence, taunting, “Go ahead, hit me,” as they stand with phone in hand, eager to call police.  There are men who fabricate, too, but in my experience, they are far fewer.  Even men who have been genuinely assaulted by their wives are often so mortified by the experience that they prefer to conceal it. 

Currently, Ontarians threaten to fabricate tales of violence most often for the purpose of getting their spouses to leave the house.  That’s because Ontario’s Family Law Act specifically instructs the court to consider domestic violence in deciding whether to make an order barring someone from re-entering his home.

Warring wives learn at the first consultation with their lawyers that a history of violence would help get their husbands expelled from the house.  Like everyone else, they’ve heard about “zero tolerance” policing.  They know the instantaneous power of making the accusation, even if the story won’t later stand up in court.  Changing the Divorce Act’s custody provisions would give them just one more reason to lie and exaggerate about domestic violence.   

It might also make judges feel obliged to give more weight to incidents of violence than they currently do, or more credence to tenuous stories of violence than they otherwise would.

The Liberal Women’s Caucus also proposes repealing subsection 16(10) of Divorce Act.  This provision currently requires the court to give children “as much contact with each spouse as is consistent with the [child’s] best interests”.  In deciding who gets custody, the court is required to consider the willingness of each parent to facilitate the other parent’s contact with the child. 

This section, in my view, is a powerful force for good. Who could reasonably object to the notion that children need abundant contact with both parents, especially after a divorce?  Who could think it’s bad to encourage parent-child relationships?  The Liberal Women’s Caucus, apparently. 

Has it never occurred to them that their proposals might become self-fulfilling prophecies?—that the more women treat men like violent brutes, the more frustrated and belligerent towards women men will become?  

Let’s hope this grandstanding, vote-seeking proposal backfires on its Liberal authors.


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       December 16, 2007