Advisory Council on the Status of Women
Policy Guide on Family Law: Press ReleasePEI Advisory Council Calls for Change in Family Law
February 1, 2002
Charlottetown - Concerned with inequities in family law, the PEI Advisory Council on the Status of Women released a policy document today that examines family law issues and makes recommendations for change.
Since the Advisory Council was formed in 1975, family law has remained the number one issue raised by Island women. Over that time period, family law reform has given women increased support for their choices. However, it is still extremely difficult for women to end relationships while dealing with inequitable laws and programs. Women do not have equal access to legal services. And, they face trends towards mediated settlements and joint custody awards that may not be in their best interests.
"Despite some changes to the system it is still more difficult for a woman than a man to end a relationship," states Advisory Council Chairperson, Patricia Roy.
Roy elaborated, "After the separation, she will likely be left poorer and she will continue to have the daily care of the children. In about 20 - 30% of situations, she has already been dealing with violence and that will tend to escalate at the time of separation. Most of the calls we receive at our office involve one or more of these concerns. We have come a long way but there is more work to be done."
Through its research, the Advisory Council has identified several pieces of provincial legislation that require amendments to eliminate discrimination. For example, the Family Law Act legislates equal property division between separating spouses who were legally married, but it does not legislate the same division between common-law spouses. And, its definition of spouse does not include same-sex partners. Similar legislation in Nova Scotia has been found to be in violation of the Canadian Charter of Rights and Freedoms. It is likely that PEI's legislation is equally discriminatory.
During the Advisory Council's consultation process, Island women expressed concern about the province's Maintenance Enforcement Program. They have many questions about the program's authority and operations and they strongly suggest that the program needs a review. As well, Island women have identified issues with the Family Support Orders Program, a program which works to enforce support payments for people who receive daycare subsidies or welfare payments. Women want to be able to opt out of this program in situations where abuse or other harrassment is an issue.
"No matter what changes occur at legislative or program levels," says Patricia Roy, "all Canadian women face a huge inequity in the provision of legal services. Criminal legal aid, used mostly by men, is completely cost-shared between the federal and provincial governments and is always available to income-eligible clients. On the other hand, civil legal aid, which includes family legal aid, is 100% funded by the provinces and is available only in very limited circumstances to income eligible clients who tend mostly to be women. Some legal analysts suggest that this inequity is in violation of the Canadian Charter of Rights and Freedoms."
The Advisory Council has closely watched the Province's work to improve services to family law clients and has continually expressed caution about a presumption towards non-adversarial dispute resolution processes such as mediation. "Mediation is not bad," explains Chairperson Roy, "but it is never appropriate in situations where there has been violence or in situations where there is a major power imbalance. If women are steered towards this process, they may lose their right to a fair settlement."
The Advisory Council has also participated in federal initiatives to amend the Divorce Act. In written submissions, the Advisory Council has urged legislators away from a presumption towards joint custody awards. "Women support the idea of fully collaborative parenting. But, they are realistic enough to know that it cannot be legislated. Any changes in the Divorce Act should work to protect women and children in dangerous situations, not attempt to legislate feelings and attitudes."
"Overall," concludes Patricia Roy, "let us forget the idea of gender-neutrality in family law. Women and men lead different lives before and after separation. Our laws and services need to reflect that reality and work towards fairness between the genders."
The PEI Advisory Council on the Status of Women recommends that the Provincial Government:
- Amend the Family Law Act
- Establish a provincial agency as a first point of entry upon the breakdown of the family unit
- Provide training about the realities of domestic violence and its after effects to people working in the justice system
- Work with the federal government on amendments to the Divorce Act that include a range of custody options
- Work with the federal government to initiate a nationally standardized, cost-shared family legal aid program
"The Advisory Council anticipates great demand for this booklet," says Patricia Roy. "We continually receive calls from women tryng to make sense out of the demands associated with this difficult decision."
"We hope that everyone will make use of this document," continues Roy. "It will be widely distributed and is free of charge. It does not provide legal advice and it is not a replacement for hiring a lawyer but will serve as a useful resource in many different scenarios. "
Topics covered in Moving On include:
- making the decision to leave
- knowing your rights
- getting advice from a lawyer
- gathering important documents
- making an advance plan
- covering situations after you leave
- dealing with emergency situations
- completing a creative worksheet to prepare for a meeting with a lawyer
Heidi Rankin, Director 368-4510