March 15, 1977 (30th Parliament, 2nd Session)

LIB

William Kenneth Robinson

Liberal

Mr. W. Kenneth Robinson (Toronto-Lakeshore):

Mr. Speaker, like my hon. friend from Grenville-Carleton, as a

March 15, 1977
Criminal Code
lawyer I have great concern about this kind of problem and I realize the difficulties many spouses have had over a number of years. I am hoping that this bill, or the substance of it, will be referred to a standing committee so that it can be considered in depth. The hon. member for Winnipeg North Centre (Mr. Knowles) indicated that last year we had the whole question of child abuse before the Standing Committee on Health, Welfare and Social Affairs, which at that time came up with a very comprehensive report. It happens to be my committee so I am very happy that this matter may be referred to it. We will carry out our investigation in due course and hopefully see that this matter is remedied in the not too distant future.
First of all, Mr. Speaker, I should like to thank the hon. member for Surrey-White Rock (Mr. Friesen) for his untiring efforts on behalf of the children who have been the unfortunate victims of vindictive parents. Children should not be the pawns of their parents for any reason. Neither should parents be allowed to violate flagrantly the orders of a court regarding custody.
The hon. member by this bill would make the removal of a child from his legal guardian by a parent an indictable offence liable to the same penalties as kidnapping or hijacking. He argues that the circumstances are no different than a situation where the intention is to extort funds or concessions. In this the hon. member is correct. Surely it is apparent that there is little difference between kidnapping and the removal of a child from his legal guardian. They are both theft in its most malicious forms.
The main reason for this bill seems to be the virtual impossibility of enforcing custody decisions. While divorce is a federal matter, child custody is a provincial concern. Each province is charged with the responsibility of ensuring the physical and emotional well-being of a child. This, of course, presents obvious difficulties in the enforcement of parental rights.
It appears that, in most cases, parents who take their children from legal guardians also leave the province in which the custody order was issued. Sometimes they leave the country. Because custody is not only provincially assigned but is also a civil matter, there is no agency besides the court which will enforce custody decisions. The police, who have often suffered physically as a result of intervening in domestic disputes, are understandably reluctant to involve themselves in what is technically a civil problem. Consequently the deprived parent is prevented from taking any immediate action. This parent is helpless in preventing the abduction of his or her child by his or her ex-spouse.
By having to take the matter to court two serious problems arise: time and location. Time is of the essence in a situation such as this. It is very simple to whisk a child on to a plane to another jurisdiction, a jurisdiction that has no control over, or right to interfere in the battle for custody. If the offending party manages to keep the child away for a considerable length of time, and some court decision can be made, in the best interests of the child the court will usually grant custody to the

parent with whom the child is currently residing. This is done to prevent any further upheaval in the child's life and routine, which is reasonable.
It would seem to me, Mr. Speaker, that what we have here is just the tip of the iceberg. There are reasons why some parents feel compelled to take this outrageous step. I submit that it often comes as a direct result of the inequitable way in which custody is awarded in the first place, and frequent denial of reasonable access. At present it is customary for a mother to receive custody of the children. It had traditionally been assumed that, except in the most extraordinary circumstances such as mental illness, alcoholism, or active indifference to the children, the mother is best able to care for the children, even if she is a prostitute. It is thought that she can fulfil the child's needs and that less strain is placed on a child if he or she is placed with his or her mother.
There was, and still is, a strong social stigma attached to a mother who decides she cannot manage her children by herself. Many mothers who love their children, but realize they are unable to take care of their offspring were, and are, forced into a position where they must accept the responsibility, which can be detrimental to both the mother and the children. Lest some hon. members think that I am exaggerating, let me illustrate more fully.
Statistics Canada reports that irrespective of who initiates the court action, the wife most frequently obtains custody of the children. In 1971, of the men who initiated court action, 40.20 per cent obtained custody. This compares to the 89.17 per cent in favour of women. In 1972 it was 37.55 per cent to 88.22 per cent; in 1973, 37.24 per cent to 88.38 per cent; and in 1974, 35.34 per cent to 87.70 per cent. This represents an average, 1971-1974, of 37.32 per cent in favour of the father, and 88.28 per cent in favour of the mother. Obviously this is discriminatory.
According to the Toronto Star of August 25, 1976:
Fathers who Filed for divorce won custody in 32 per cent of the cases but in only 3.7 per cent of the cases when the mother started the action.
In the same vein the Ottawa Citizen stated on June 12, 1976:
To a father anxious to retain custody of his children it is obviously wiser to be the one suing for divorce.
In the majority of cases that have come to public attention it has been the father who has resorted to kidnapping to gain access to his children. This indicates to me that there is another problem here than outright kidnapping, and that is how custody is awarded.
Concerning the Law Reform Commission, the Globe and Mail reported on June 12, 1976:
The court would decide which spouse should have custody of the children on the basis of which parent can better care for them and without reference to which spouse was guilty of an extra-marital offence.
The Law Reform Commission suggests an extensive examination of the pre-divorce relationship between a child and its
March 15, 1977

parents, including: the kind of relationship the child has with the persons to whom custody will be entrusted; the emotional and physical need of the child; the capacity of the potential guardian to provide for the child; and the preference of the child who is at an appropriate age to make such a decision.
In working paper No. 13, under the heading of Divorce, the Law Reform Commission stated:
The courts would treat fathers and mothers on an equal basis and no sexual discrimination would be made in determining who is the more appropriate parent to assume the responsibility for the children.
I believe, Mr. Speaker, that this is the crux of the issue we are discussing. Custody is a right with responsibilities, one of which is providing reasonable access to the other parent. It should be granted on a non-discriminatory basis, after a thorough pre-trial examination has taken place, and should not be a rubber stamp decision by the court. This, I believe, is fundamental to the solution of parental kidnapping.
A comprehensive re-evaluation of all aspects of custody granting access to children must be completed. Interprovincial custody enforcement must be legislated, and then such incidents should decrease. By attaching this kind of kidnapping to the Criminal Code, we could then negotiate the return of children who have one non-Canadian parent and have been taken out of the country.
The hon. member's bill is a good solution to part of the problem. It should be incorporated into a series of changes and reforms concerning the granting and enforcement of custody so that the number of these tragic kidnappings will be reduced and eventually eliminated.

Topic:   PROCEEDINGS ON ADJOURNMENT MOTION
Subtopic:   CRIMINAL CODE
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