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Women's and Children's Rights Get Boost from the Law!

October 13, 2006

Resolving family law disputes – especially those relating to children – when a marriage or common law relationship breaks down has always been challenging. Policy makers and legal advocates have struggled for decades to develop a system of laws that respects the different situations and realities faced by individual families but that also ensures protection of the rights of women and children within the family.

Canada enshrined women’s equality rights in sections 15 and 28 of the Canadian Charter of Rights and Freedoms more than 20 years ago. This has led to law reform initiatives in many areas of law that focus specifically on women’s rights.

Women leaving abusive relationships face real challenges when dealing with family law. This is especially true for women from marginalized communities, who face many barriers specific to their circumstances.

Two areas that have proven particularly challenging have been the use of alternative dispute resolution such as arbitration and the issue of custody and access. Recent law reform in both areas has been very positive in moving closer to ensuring that the equality rights of women as well as the best interests of children are protected.

Alternative Dispute Resolution
 
Arbitration can be used to resolve many kinds of disagreements, including family law disputes. All arbitration in Ontario is governed by the Arbitration Act, which is provincial legislation. This Act sets out the framework for arbitration and is accompanied by regulations, which spell out many of the specific details of how arbitration is to be conducted.

Until recently, the Arbitration Act allowed the people entering into arbitration to select whatever system of rules or laws they wanted to govern their arbitration. In other words, if two people were in dispute over a contract they had signed with one another and they both wanted to use French contract law to sort out their disagreement, they could do so. Or, if a man and woman were attempting to resolve issues arising from the breakdown of their marriage, they could agree to use the laws of their religion or of their country of origin, even if these conflicted with Canadian laws or did not uphold the equality rights guaranteed in the Charter.

Because of fears for their safety, of isolation from their cultural or religious community, of losing their children, women leaving abusive men have always been particularly vulnerable to being manipulated, coerced or intimidated into “agreeing” to processes and outcomes they do not want, including the use of a private system of law.

Women’s equality rights activists expressed serious concern about this, especially when, in 2003, a group of fundamentalist Muslims indicated they intended to create a court of law based on their interpretation of sharia law for the resolution of family law disputes in Islamic communities in Ontario.

Our concern stemmed from the privatization of family law matters through the use of private laws to resolve disputes. Feminists have fought for more than 25 years to move family law into the public realm from the private. Arbitration generally, but in particular when based on a system of private laws, takes family law back out of the public realm and into the private.

Since arbitrations are by definition private, it is difficult to track either the numbers or outcomes of arbitrations using private systems of laws. However, key women’s equality rights organizations in Canada s strongly opposed the use of private laws for family law arbitration because of concerns that women’s equality rights under Canadian laws would not be respected.  In 2004, these organizations joined with the Canadian Council of Muslim Women, which had already taken a vocal and very public position opposing the use of religious arbitration in Ontario.

In September 2005, Premier Dalton McGuinty announced that his government would ban the use of religious arbitration in family disputes and in February 2006, the provincial government passed amendments to the Arbitration Act, which did so. The outcome is very positive for women, who now have some protections under law from coercion and intimidation in the resolution of family disputes.

The amendments require that:
As well, parties cannot enter into an advance agreement to arbitrate their family dispute – they can only do so at the time of the dispute. People cannot waive their right to appeal the outcome of the arbitration.

All of these measures provide considerable protection for vulnerable parties. Under the law, women leaving abusive men cannot be forced to enter into arbitration using any law except Ontario/Canadian law. Should they decide to enter into arbitration, they must have their own legal advice and they cannot be coerced into agreeing not to appeal the outcome of the arbitration. Training for arbitrators will add a further layer of protection.

The development and passage of these amendments were the result of intense lobbying by a very diverse coalition of community, women’s equality rights, cultural and religious organizations, which found ways to work across differences and to focus on our joint goal – to end religious arbitration of family law disputes in Ontario. The government worked collaboratively with members of this coalition, establishing a positive model that should be an example for future law reform endeavours.

However, work remains to be done. The provincial government has yet to finalize the regulations that will provide the teeth to ensure the intent of the legislation is realized. The government has also committed itself to a large scale public education campaign to ensure that women are aware of their rights under Canadian laws and how they can access public family laws in the case of relationship breakdown. One these two measures have been fully implemented, it will be possible to begin to evaluate the impact of the changes to the Arbitration Act.

Custody and Access

The issue of custody and access has been under consideration for law reform at both the federal and provincial levels for the past decade. It has been a heated topic, with women’s equality rights activists facing serious and at times threatening opposition from so-called fathers’ rights activists.

At issue has been the question of how to ensure that children have appropriate relationships with both their parents after those parents separate.

The test used under both federal and provincial regimes is the “best interests of the child” test. The federal Divorce Act states that this is the only consideration for courts making custody and access determinations, but is silent as to what that means. Ontario’s Children’s Law Reform Act has the same requirement, but sets out a number of criteria for courts to use in making the “best interests” determination.

Women’s equality rights advocates have been seeking amendments to these laws to ensure that violence against women be a mandatory consideration in custody and access cases. We support, and always have, the notion that children are well served when both parents can play a role in their upbringing, but we believe this is only appropriate and safe (for the children and the mother) when there has not been a history of woman or child abuse and where the two parents are able to cooperate and treat one another with respect.

Despite a number of national reports, hearings and consultations and the expenditure of hundreds of thousands of dollars in the past decade, the federal government has been unable to craft amendments to the Divorce Act to speak to these concerns.

In Ontario, however, recent amendments to the Children’s Law Reform Act mean that violence within families must be considered by courts when dealing with custody and access cases. The best interests of the child test now includes a requirement that courts assess “the ability of each person applying for custody of or access to the child to act as a parent,” and that, in making this assessment, the court:

    “shall consider whether the person has at any time committed violence or abuse against (a) his or her spouse; (b) a parent of the child to whom the application relates; (c) a member of the person’s household; or (d) any child.

The amendment goes on to state: “anything done in self-defence or to protect another person shall not be considered violence or abuse.”

These changes to the manner in which custody and access decisions will be made have had an immediate and positive impact on women with children who leave abusive men. Judges are required to consider evidence of woman abuse and its impact on the abuser’s ability to “act as a parent.”

As with the amendments to legislation governing family law arbitration, the changes to custody and access law came about as the result of hard work by women’s equality rights activists. Many barriers in family law still remain in place for women; for example, the lack of legal aid denies many women access to adequate legal representation and restraining order legislation does not yet have enough teeth to keep women safe from ex-partners who stalk and threaten them.

Even as we continue to work to address these and other legal challenges to ensure that women truly have access to the equal protection and benefit of the law guaranteed by the Charter, it is important that we celebrate these recent law reform initiatives in Ontario. Women are better protected today than they were at this time last year, which is an important reminder that our work as frontline workers and as advocates for law reform matters.
 

Source: Pamela Cross, Executive Director of the National Association of Women and the Law (NAWL)

Contact Information:
    Pamela Cross
    [email protected]
    http://www.nawl.ca

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