REPORT ON FEDERAL-PROVINCIAL-TERRITORIAL CONSULTATIONS

APPENDIX C: REPORT ON NEWFOUNDLAND AND LABRADOR

(At the request of the Government of Newfoundland and Labrador, this brief is included as an appendix to the report on the consultations in that province.)

A Submission to the Special Joint Committee of the Senate and the House of Commons on Child Custody and Access.

May 25, 1998
Parliament of Canada
Ottawa, Ontario
K1A 0A6

Acknowledgments

This brief was researched and written by Kirsten M. Schmidt, MA(HeEd) with Joyce Hancock (Provincial Advisory Council on the Status of Women), Helen Murphy (Provincial Association Against Family Violence), and Elaine Wychreschuk, LLB. Assistance was provided by Rebecca Woodrow, Melanie Parsons, and Joyce Aylward.

Special thanks is extended to:

  • Bay St. George Women's Council, Stephenville
  • Gateway Women's Council, Port Aux Basques
  • Iris Kirby Transition House, St. John's
  • Gander Women's Council, Gander
  • Mokami Women's Council, Goose Bay - Labrador
  • Labrador West Women's Council, Labrador City - Labrador
  • Libra Transition House, Goose Bay - Labrador
  • St. John's Women's Council, St. John's
  • and the other participants of the focus groups, without whom, this brief would not have so fully reflected the context of custody and access issues in Newfoundland and Labrador.

For additional copies, please contact:

The Provincial Advisory Council on the Status of Women - Newfoundland and Labrador
131 LeMarchant Rd
St. John's, Newfoundland
A1C 2h2

phone: 709-753-7270
fax: 709-753-2606
email: pacsw@nf.aibn.com

Executive Summary

The purposes of this brief is to present women's realities of custody and access in Newfoundland and Labrador and to provide recommendations to the Special Joint Committee on Custody and Access.

Central to this document are our feminist values and beliefs. These inform how we see the world and how we understand women's experiences. Our understanding of a truly child centred approach also informs our analysis of custody and access issues. The context of Newfoundland and Labrador is the backdrop for this document.

In order to present some of the experiences of women in this province, two focus groups were held. A total of 31 women attended. Many of the women had personal experiences with custody and access or were involved with women through women's centres, transition houses, university departments, social services, health, and justice systems, community-based women's programs, policy departments of government, and single parent's groups.

Using content analysis, four main themes emerged from the focus groups: custody and access, relocation and mobility, violence against women and children, and the legal system. Throughout the document, women's voices are heard and relevant literature is cited.

Seventeen recommendations are given based on the experiences of women in Newfoundland and Labrador.

Introduction

The Provincial Advisory Council on the Status of Women

The Provincial Advisory Council on the Status of Women was established in June of 1980 through an act of legislation by the government of Newfoundland and Labrador. The council works as an arms length equality seeking organization in the areas of advocacy, lobbying, education, and providing advice to the government on women's social and economic equality.

The Provincial Association Against Family Violence

The Provincial Association Against Family Violence was established in 1987. It is an umbrella organization for transition houses and community groups working to provide services to abused women and children. The association assists member groups with program development and information sharing and works in the areas of education, lobbying, and providing input to the government on issues of violence.

Why We Work Together

The Provincial Association Against Family Violence and the Provincial Advisory Council on the Status of Women have a long history of working together on issues of violence and equality. Our organizations are grounded in a feminist analysis of women's lives and the quest for equality and violence free communities.

We have undertaken this brief and presentation jointly because we feel that the mandate of the joint committee and the recommendations which follow from this consultation process will have serious impact on women's equality and access to fairness and justice.

The Advisory Council and The Association Against Family Violence are in continuous communication with women who work at women's centres, transition houses, and with community anti-violence coalitions. We see and hear everyday from women who struggle for justice for themselves and their children.

Our Values and Beliefs

This brief is shaped by our values and beliefs as feminists.

  • We believe that the power imbalances in relationships are a result of institutionalized patriarchy. The court system emulates these power imbalances.
  • We recognize that the experiences of growing up in a patriarchal society affects women and men differently. We continuously challenge this worldview in institutions such as churches, governments, and families.
  • We believe that the work toward equality is work toward a balanced world where women and men are equal, where men and women share equally in the care of the environment, the care of the young and old, and the care of the disabled and disadvantaged.
  • We recognize that women have different kinds of knowledge than men. It is important to value the knowledge that women have from nurturing children, caring for families, and working in the community.
  • We believe that children have the right to live and grow in safety and security, without violence or the fear of violence.
  • We recognize the imbalances in power between men and women, and adults and children. These imbalances are played out very strongly in the family justice system where the contributions of women as the primary caregiver is not acknowledged and is often undervalued.
  • We recognize that women experience even greater discrimination based on Aboriginal status, disability, sexual orientation, race, and immigrant status.

The Context of Newfoundland and Labrador

Newfoundland and Labrador is a province made up primarily of rural, often geographically isolated communities. In recent years, Newfoundland and Labrador have been devastated by the collapse of the cod fishery and the fiscal priorities of the federal government. In a province that relies heavily on federal transfer payments, massive unemployment has seriously affected families and communities. Out-migration, loss of employment, and heavy dependence on income support programs are all contributing to a loss of personal self esteem, community pride, and a heavy reliance on governments for mere survival. The dominance of small communities, the strong tradition of heterosexual, two parent families, and the hierarchical power of Christian religions have influenced both the power dynamics in families and the way government policies have been developed and applied.

There is more than just poverty in our people. Systems like health, social services, justice, and education are impoverished. The very systems women look toward for support no longer have the resources to assist individuals and families. Access to these systems becomes a problem. There is a lack of Legal-Aid lawyers, courts are being removed from towns, there is little access to social workers, long waiting lists for counselling and mental health services, and minimal access to appropriate supervisors for access.

Abuse and violence is largely a hidden crime in Newfoundland and Labrador, particularly in small rural communities where confidentiality and safety are practically nonexistent. Aboriginal women in Labrador, who have begged for years for policing, now report that there is an acceptance of violence as a normal way of life. Since 1996, over a twelve-month period, four women were murdered by their partners. Women working in transition houses and women's centers report that abused women are realizing that they are more at risk of death when they report the abuse to the police or courts. Many are staying in abusive relationships and taking responsibility for the abusive partner and the care of their children.

Newfoundland and Labrador is a province that has begun to take ownership and responsibility for abuse. The court cases involving the Mount Cashel Orphanage victims, sexual abuse by clergy, and numerous victims naming the abuse by family members and community leaders have made government departments and community groups grapple with the multifaceted needs of victims and offenders. Yet, in the face of this awareness comes the everyday issues of poverty and community survival. Community organizations are hearing everyday that women and families feel poor and powerless. They no longer have faith in any of the systems that were put in place to assist them.

Defining Child-Centred

The concept of child centred is central to our recommendations and lays the groundwork for our analysis. Our approach to a definition of child centred is grounded in our understanding of gender equality and a recognition of the continuum of power imbalances in relationships. From this understanding of equality and power, we draw our expectations of what a child centred approach would look like.

A child centred approach is attentive to the child's physical (including material), emotional, social, and spiritual needs. It involves a recognition of the need to maintain a healthy, trusting relationship between the primary caregiver and the children.

A child centred approach means providing a living arrangement where children can live in safety and security, without emotional, sexual, or physical abuse and without the fear of abuse to themselves or their primary caregiver.

A child centred approach recognizes the child as a whole person, who has needs that must be acknowledged, sustained, and nourished. This kind of approach would realize that children live in families and communities. They develop within a social environment that extends their lives within a community of school and peers and this takes on more importance than strict adherence to the access rights of the non-custodial parents. For example, on the same day that a child is suppose to spend with the non-custodial parent, he may chose to attend a cub scout activity instead of spending time with the parent.

A child centred approach cannot be realized with notions of gender neutrality. A gender neutral approach assumes the equality of parents in custody disputes. It ignores women's responsibilities of child-rearing, their experiences of surviving violence, and women's financial realities. Many women who need a restriction to access by the non-custodial parent report a rigorous court experience where it appears to be assumed that her concern for providing a safe, secure environment for the child is selfish. Such experiences must be seen as a result of the gender bias that exists in favour of men. Gender neutrality in a system which is gender biased does not create equality.

The decisions made by courts on custody and access do not always reflect the best interest of children. It is for this reason that we felt it was important to place the child's needs at the centre of decisions related to custody and access. Presently, the decisions rendered as being in the "best interest of the child" often speak more about ownership, control, and the rights of parents. The emphasis seems to be on fairness for both parents, not fairness for the children.

The adversarial nature of custody disputes is a negative experience for parents and the aftermath of this often spills onto the child as s/he relates to the primary caregiver and the access parent. It is important to ensure that the decisions made in court weigh the best interests of the child not the needs and rights of parents.

The ideal family does not exist at the time of divorce, especially in divorces that involve custody disputes. When a family unit changes as it does in separation and divorce, there is often a period of grieving and loss. Dividing up the children's time to meet the needs of adults is definitely not a child centred approach.

Most children have the resiliency to survive the change in family structure that divorces bring. They will thrive better in a living arrangement with the primary caregiver that brings a sense of security, provides for their needs, and where an adult takes responsibility for the major decisions in the children's lives. The decisions made on behalf of the children by the primary caregiver must be respected as they have the most information about the children's needs. There will always be times where the non-custodial parent feels the loss of the child especially as an everyday presence. However, we cannot allow children to take responsibility for the emotional needs of parents.

Methods

Using a collective process, questions for two focus groups were designed by the research committee. The first focus group was with women who had personal experiences with custody and access issues and representatives from women's centres and transition houses across Newfoundland and Labrador. Sixteen women attended this group which was held by teleconference. The second focus group was held in St. John's, Newfoundland. Fifteen women attended who were associated with the women's centre; transition house; social services, health, and justice systems; university departments; community-based women's programs; policy departments of the government; and single parents groups. Both focus groups were tape recorded and transcribed.

The information that was collected during the two focus groups underwent content analysis. Manning and Coolum-Swan (1994) describe content analysis as a ‘quantitatively oriented technique' (p. 464) that is used to categorize qualitative information. Four major themes were determined by descriptively coding the text, custody and access, relocation and mobility, violence against women and children, and the legal system.

The information gathered during the focus groups, in combination with relevant literature, form the foundation for recommendations to the Special Joint Committee on Custody and Access.

Discussion

In this section, we present information collected during a provincial teleconference and a focus group in St. John's. Through content analysis, the information fell into four major themes: custody and access, relocation and mobility, violence against women and children, and the legal system.

The quotes presented in this section come from the women who participated in the teleconference and focus group. A representative selection of the women's voices is presented. That is, no one woman dominates the discussion. In addition, references are made to appropriate literature.

Custody and Access

During the teleconference and focus group, women were asked for their thoughts on the mandate of the Special Joint Committee on Custody and Access. All of the women were very supportive of creating a system that was truly child-centred. At the same time, women noted that being child-centred did not mean that joint custody was in the best interest of the children.

"Well the thing that strikes me about this is that it gives a more child centred approach to family law policies that would emphasizes the parental responsibility. Emphasizing parental joint responsibilities means joint custody. To me that doesn't go along with a child centred approach."

"I think that there is a contradiction to try and take a child centred approach and then to try and emphasize joint custody."

"If they are trying to make it fair to the parents, how is it going to be fair to the children if they have to spend 40% of the time with one parent and 60% of the time with the other. That may not always be best for the children."

From their experiences, women felt that a presumption of joint-custody was not compatible with a system that is child-centred. Similarly, Smart & Neale (1997) reported that the assumption that maximum contact with both parents is beneficial to the children is often not the case.

When asked about their experiences or the experiences of women they work with about custody and access, women said:

"With joint custody, the woman still has all the responsibility of the child but the man ends up with all the decision making control. For example, if she wanted to leave her community for a while, because of the joint custody, he has to agree to everything and he still doesn't have to take responsibility for the child, he just gets to have something to say about everything."

"Joint custody is a control issue, it's not the child that's being controlled, it's the other parent."

"I think that the issues just satisfies the father in the way that he feels that he is just as responsible to the kids as the mother. But the final decision of what happens to your kids has to fall with one parent. I don't think ex's can get along with ex's and the major decision making sometimes is a very difficult thing…if we can't agree, going back through the courts system and costing me a thousand dollars a day to get in court to say that I want to make this decision for my child because I think that it is best."

"I think that the court should look at mothers and fathers and say -which one wants responsibility? which one will give their life for the child? Most moms will say that custody is not ownership, it is responsibility for my child and to make the right decision for my child."

"If two people can't talk to each other and you do have to be civil with each other for joint custody to work. If you can't agree on small issues you can't agree on what is best for your child."

"Shared custody is a big concern right now for lawyers because it means that the dad has the child 40% of the time or more, and if he can say that…then he doesn't have to pay the recommended amount under the guidelines…every dad now is asking for 40% of the custody."

"Joint custody is not tied to joint responsibilities. It's more about the rights of the parent than responsibilities to the child. Rights come with responsibilities."

Women felt that joint custody did not equate with joint parental responsibilities. In Newfoundland and Labrador, many women said joint custody resulted in women having day-to-day responsibilities for their children and men have decision making rights. Joint custody gives non-custodial parents rights without corresponding responsibilities. This is supported by Bertoia & Drakick (1993) who found that claims for joint custody were based on a desire to share in decision making, rather than a desire for sharing in day-to-day caregiving.

With regards to the "friendly parent rule", women said:

"The ‘friendly parent rule' is coercive… Women are scared of being perceived as unfriendly, even when they know they are acting in the best interest of their children."

"I have sole custody with access…the only reason I gave their father access is because I would have been seen as the ‘unfriendly parent' if I didn't."

Women felt that the ‘unfriendly parent rule' was manipulative and intimidating to women. This is particularly true for women with abusive ex-partners (Muzychka, 1994).

Many of the women also spoke about their problems and frustrations getting maintenance support from their ex-partners.

"A lot of women are frustrated. They feel that the maintenance support agencies are not doing their work. They can't get their monies out of their spouses."

"I've got a lot of problems with trying to get maintenance. Actually, my ex owes me about $5500.00… I call back and forth to the courts and get no help from them… He hasn't seen the child in three years."

"I sort of have an issue with the whole idea of the courts seeing the children as a commodity. They decide who has a right to have children and the amount of time they get to spend with the children. I think the children can't be used as a commodity. Once you say custody you are implying ownership of some sort."

"Child maintenance shouldn't be dependent on access. Men need to pay child support because it is their responsibility, not because they see or don't see the kids. They are not buying time by paying support."

Child maintenance and access should continue to be considered separate issues and decided independently by the courts. Inherent with being a parent is the responsibility to provide financial support, regardless of access. The Ad Hoc Committee on Custody and Access Reform (1998) states… "child support becomes leverage in the intimidation of women by men seeking to divert attention away from their abdication of financial obligations. In these circumstances, men's concern is not for children."

(p. 17). Time with children should not to be bought.

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