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Ottawa: Family Law Specialist Speaks Out on Proposed Amendments to the Divorce Act

"There will be no need for the Family Responsibility Office. The Family Responsibility Office is an insensitive behemoth of little value."

Leonard Levencrown
Mackinnon & Phillips
Counsel: Leonard Levencrown
802-200 Elgin Street
Ottawa, Ontario, K2P 1L5

Tel: (613) 236-0662
Fax: (613) 236-8906

August 26, 2002

The Ottawa Citizen
1101 Baxter Road
Ottawa, Ontario
K2C 3Z3

Dear Editor:

The Federal Government's proposal amendment to the Divorce Act to change the definition of custody is inherently flawed. Changing the definition to shared responsibility and leaving the ability of one parent to get sole custody will not effect any improvement. It is a weak sop to fathers and an affirmation to mothers that they will continue to be awarded sole custody in the majority of custody cases regardless of the best interests of the children. Children require a mother and a father. The Government should make joint custody the rule and only in exceptional cases one parent should have sole custody.

The issue of custody is a social economic one. While parents are married there is rarely (CAS situation aside) a situation where one parent says the other is unfit. It is only upon separation that one parent finds that the other parent is unfit. The tragedy is that the Courts are being taken in by this. Over my 28 years of practice in Family Law I have heard many allegations. The father makes the child eat dinner before watching television. The father makes the child drive his or her bicycle up a hill. The majority of the allegations are unfounded and made up to use in an economic war. I have had only one true child abuse case in 28 years and the abuse was by the mother.

Upon separation the mother is justifiably afraid to fall on welfare or experience a reduced standard of living as she realizes there is generally not sufficient money to maintain the standards of living that previously existed.

The fathers' insecurity is that after spousal and child support he will have very little to live on. The struggle begins. In order for the parties to improve their custody chances they make terrible allegations against each other. Some of these are conceived by self interest groups and other disgruntled separees. I have had many cases where the wife was told to go to Police and make abuse allegations. These generally lead to a charge against the father, which almost guarantees he cannot succeed in a custody case. His parenting ability never comes into play. What is guaranteed is that he will go through an expensive trial and even if innocent may be convicted and get permanent record. Putting a parent through a court proceeding is not in the best interests of the children. It ensures that the parents will not reconcile. It produces separation and if the parent is convicted and gets a record ensures they will have job related economic problems, which will ultimately affect the children.

The current rhetoric in our Courts today is "the best interest of the children". These are very noble words but taken in isolation prove to be detrimental to the children.

The Courts have to realize that the best interests of the children can only be ensured if we ensure the best interests of the parents. False allegations against a father to have him removed from the home will only cause him to be angry and upset. He feels his only recourse is to try and react by not paying child support. The non payment of support does not help the children. The taking of the child away by restricting access is only going to produce children with future emotional problems. I have seen many mothers enter new relationships wanting to get rid of the father of the past. They try everything to cut him off of access to his child. Generally they succeed. In the future these children will suffer emotionally and in their own relationships. Fathers that commence bogus custody claims to reduce support force the wife to retaliate.

We constantly hear the social science people and feminists refer to men needing anger management. Do they ever ask themselves why some men are angry? Do they ever look into the causation?

I make the following suggestions:

1) All spousal and child support should be determined in accordance with the Guidelines based on the income of the payor. Once determined the payment should be made by the Government on a monthly basis. The same day every month. This will allow the payee to count on receipt on a recurring day. It will also prevent the payor from delaying payment. The most important aspect of this regime is it will take away the confrontation between the husband and wife and the anger on both sides. The funding of the support will be via the income tax system, which can be adjusted yearly. The number of cases in the Courts will be reduced. A provision can still allow access to the Courts in very restricted circumstances. For example; if there is a blatant under declaration of income.

2) There will be no need for the Family Responsibility Office. The Family Responsibility Office is an insensitive behemoth of little value. It has mandated the collection of support from salaried payors who are on a payroll. These are not the cases that require such large bureaucracy. In the old days when you could not get employees, civil servants or the military to pay support we got the payments by writing to their superiors. A company or a government department did not want the public embarrassment of having an employee who did not pay child or spousal support. Today the legislation has every payor in ongoing garnishee, which affects their credit rating. The cases requiring a Family Responsibility Office are the cash workers, self employed and other discretionary earners. The Family Responsibility Office is ineffectual in these cases.

3) Judges today are overloaded on a daily basis with motions. It is not humanly possible to properly decide a child's life on the basis of affidavits on a motion that may only take a few hours. The judges struggle to do their best as they are sincerely concerned about children but they are limited in the present system. Custody and access cases must be decided on vive voce evidence as is done in Quebec. The parties must be required to partake in a mini trial and justify their evidence. Finally, the representations of the children by inexperienced Children's lawyers representing the child, has to end.

In conclusion, the proposed amendments clearly indicate to me that the interests groups in government have made proposals for reform on the basis of political expediency and to appease pressure groups and are not in the best interests of children.

Yours very truly,

Leonard Levencrown