Bourque

//“Reconstructing” The Patriarchal Nuclear Family: Recent Developments in Child Custody and Access in Canada –// Dawn M. Bourque


 * Short Summary**: This article examines the recent trend in Canada of re-privatizing the family to a traditional patriarchal form.

//Introduction://
 * Over the last decade, family law, particularly matters surrounding separation and divorce, have gained a prominent status on the Canadian political landscape
 * With the liberalization of divorce laws and the move towards equality and gender-neutral principles, changing practices in custody disputes have intensified feminist awareness of the limitations of legislative reform as a vehicle for social change
 * The current practices of courts in settling custody disputes are having the effect of seriously diminishing the ability of mothers and their children to achieve and sustain economic, social, and emotional well-being
 * The current trends in family law are in line with the larger political movements on the right end of the political spectrum
 * For separated or divorced women with children, privatising tactics serve to perpetuate and create situations whereby women and children are bound to their former male partners, and subject to their control
 * Feminist critiques have highlighted the dangers of joint custody, which tends to create arrangements that gives both parents the legal authority to make decisions concerning their children but only one parent (usually the mother) is given responsibility for the children’s day-to-day care
 * Joint custody has not always been encouraged by formal legislation, but custody decision remain open to private spheres of influence
 * The recent push for family law disputes to be settled through mediation centers around the notion that family is the basic unit of society and that it need no breakdown
 * Rather mediation often strives to reconstruct the family so that it can fulfill its roles in society, however, this reconstruction often takes place along familiar patriarchal lines
 * An examination of cases involving custody and access disputes between 1990-1993 shows that joint custody arrangements are being imposed at an alarming rate with serious negative consequences for women and children
 * In both initial custody orders and variations to existing orders, non-custodial parent (usually fathers) access is the major issue of contention
 * In nearly all the cases examined, paternal access is viewed by judges as paramount to the best interests of the child, superseding all other considerations
 * Therefore, while formal joint custody orders are not the arrangement of choice, the weight being placed on paternal access creates similar arrangements within the confines of sole custody orders
 * Liberal paternal access orders reconstruct the patriarchal nuclear family

//__The New Joint Custody: Restricting Mothers’ Mobility__//
 * Court-imposed restrictions are most apparent in cases where the custodial parent, usually the mother, wishes to relocate
 * Because paternal access is viewed as so important, it is increasingly difficult for mothers to move with their children if the move will lessen in any way paternal access
 * //Carter v. Brooks//: A mother was not allowed to relocate even though the court reaffirmed the sole custody order, implying the mother’s competent ability to make decision concerning her child //–// This decision was based on the assumption of the judge about the negative impact of less frequent physical contact as well as an equation of physical proximity with close relationships
 * //Fasan v. Fasan//: The court reaffirmed the paramount importance of paternal access, despite evidence to suggest the access may not be beneficial to the child
 * In far too many cases, custodial mothers’ ability to decide the residence of their children is being subjected to non-custodial father’s approval or court action
 * The burden of proof also lies with mothers to show the benefits of relocating
 * //Young v. Young:// The majority attempts to do away with the “rights” language used by the trial judge, replacing it solely with the issue of the best interests of the child. However, despite the testimony by the children that their father’s religious instruction was causing serious problems, the majority found that there was insufficient evidence of risk of harm to the children to restrict the father’s behaviour
 * L’Heureux-Dube framed the issues very differently and found the majority’s harm test as the criterion of the best interest of the child to be regressive. She states: “the test subordinates the best interests of children to a presumptive right of the non-custodial parent to unrestricted access
 * In mobility cases, it has become the responsibility of the mothers to facilitate non-custodial parent contact by not relocating, by enduring reductions in child support if permitted to move, and/or restricting their relocation to proximate areas
 * However, there is nothing to prevent a non-custodial father from relocating away from his child or from choosing not to exercise his access rights. There has been no consideration of the father moving to where the child is to reside
 * The above problems are obscured under the best interests of the child test
 * The test operates within a framework that prioritizes father’s rights of authority From the case law it is evident that authority and obligation pair up with gender divisions: authority remains the father’s prerogative and obligation is conferred upon the mother