Thinking about the children
New act will clarify confusing system
by Cheryl Leschasin
NNSL (Apr 28/97) - The NWT cabinet has introduced four family law bills to replace outdated and inconsistent laws governing divorce, child custody, adoptions and other family issues.
A six-MLA committee is now touring the North, seeking public input on the bills. As part of our coverage, News/North continues a four-part look at the proposed legislation. This week: the Children's Law Act.
The new Children's Law Act is designed to clarify what many agree is a very confusing system.
"In a large way, it will codify and correct. It will make law what we've been doing for a long time," said lawyer Elaine Keenan Bengts, who has been pushing for Children's Law changes for almost a decade.
Keenan Bengts described an example of an all-too-common occurrence that new legislation will help smooth out.
If a mother wants support from a father, the dispute goes to Supreme Court. If the father denies parentage, the Supreme Court action must be adjourned and the parentage matter is taken up in territorial court.
Paternity can be determined by a blood test, but the territorial court cannot compel the father to take one. If the father continues to deny parentage, the action is adjourned and taken back to the Supreme Court.
Keenan Bengts explained that most cases never get this far -- people usually tire of bouncing from court to court and agree to the blood test.
The benefit in the new legislation will be that the Supreme Court can draw inferences and make rulings if a parent refuses a blood test, erasing the need to adjourn to territorial court.
The new act will not likely affect those who already have a custody, access or support judgment set. "Once an order is made, you need a substantial change in circumstance to go back to court," said Keenan Bengts.
A small possibility may exist that parents could be able to return to court to petition for a change in judgment if it is decided the new act itself represents a substantial change.
But at moment, there is nothing in the works to provide for this possibility.
Keenan Bengts also expressed concern over custody and access enforcement, in which either the non-custodial parent does not use access in allotted time or the custodial parent denies the non-custodial parent court-defined access.
"Only time will tell to know whether courts will use and how they will use the power given them through the acts," she said.
Some of the major changes being proposed include: