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Speaker's Corner: Time for Canada to embrace equal shared parenting

From the 1998 Senate special joint committee recommendations to the present, numerous reports and statements concerning the family law system have recognized the need for fundamental reform as it relates to contested custody cases.

Bill C-560, a private member’s bill proposed by Conservative MP Maurice Vellacott, is a reasonable and balanced proposal to address the current broken system. Parliament will debate bill C-560 on May 7, followed by a second reading vote.

The principal change to the Divorce Act, with the goal of reducing incentives for bitter and expensive litigation over children, is the proposal for a rebuttable presumption that equal shared parenting would support the best interests of the children unless a party can establish that some other parenting plan would substantially enhance those interests.

Section 16(10) of the Divorce Act, as amended in 1985, calls for a consideration of maximum contact with both parents. However, experience with reported decisions to date has shown that the great majority of decisions are still following a primary and secondary parent model with secondary parent time-shares running from 16 per cent (alternate two-day weekends and some mid-week contact for a few hours) to 35 per cent (alternate three-day weekends and one mid-week overnight) after accounting for equal vacation time.

However, social science research overwhelmingly supports the more current understanding that children need, benefit from, and want two primary parent relationships after separation rather than one parent and someone they go to visit. Among the leading experts globally is Prof. Ed Kruk of the University of British Columbia. He recently published a book with a synthesis of the rationale for equal shared parenting and a listing of the leading global peer-reviewed research.

There’s wide acceptance that children deprived of meaningful relationships with one of their parents are at greater psychological risk even when they’re able to maintain relationships with the other parent and that shared time and parenting between two parents works. Shared custody agreements have also been shown to reduce parental conflict and increase co-operation over time.

Bill C-560 recognizes that the current effort to specify with precision a specific time-share between a primary and secondary parent isn’t logically or empirically justified. Custody litigation seeking to marginalize one parent has no discernible benefit when measured against the financial and emotional cost and the impact on the children of litigation.

Public opinion polls over many years have consistently shown up to 80-per-cent support for equal shared parenting across all demographics, regions, and political affiliations. Support among Canadian women is indistinguishable from men, and a global group called Leading Women for Shared Parenting is assisting in efforts in Canada and elsewhere. Perhaps this is because, according to Statistics Canada in 2012, the employment rate for women with children under six years old was 67.8 per cent (up from 31.4 per cent in 1976) and 79 per cent for women with children from six to 15 years old (up from 46.4 per cent in 1976).

Despite the development of both permissive and mandatory mediation, collaborative law organizations, and parent education programs, the family law courts remain overburdened with substantial backlogs due to child-related disputes. This problem, together with the associated costs to taxpayers and parents, has only gotten worse over the years. The cost of litigation has led to significant advantages for wealthier parents and those more able to represent themselves.

The opposition to equal shared parenting frequently comes from divorce industry professionals who might have difficulty reviewing bill C-560 objectively since one of the main goals and likely effects of the Divorce Act amendment is to reduce the current plague of custody litigation. However, many studies identify the very existence of the custody litigation itself as the primary concern regarding the effect of divorce on children.

In response to the active discussion in the media and on behalf of several shared parenting organizations, I prepared a document on the myths and facts about bill C-560 that dispels the rhetoric and confusion put forth in opposition to it.

In addition to the public support and strong social sciences empirical support, there are several key facts to consider:

Bill C-560 will foster settlements and reduce litigation due to the requirement that a parent seeking primary parent status must establish that disproportionate parenting time will substantially enhance the best interests of the children, a principle that remains the focus under bill C-560.

Bill C-560 focuses on the right of the child to know and love two primary parents in accordance with the leading research on the best outcomes for children of divorce and Canada’s commitments under the United Nations Convention on the Rights of the Child.

Mediated, consensual or, if needed, adjudicated custom solutions are still available under bill C-560 where there is demonstrable merit in light of the unique aspects of the particular family. The proposed legislation does not impose a one-size-fits-all solution; it merely provides a starting point for adjudication based on what works for most children and then still allows for an examination of the unique aspects of a family to see if a disproportionate time-share is justifiable.

Decision-making powers can fall to one parent for good reason even though child time-share is equal or close to equal.

Bill C-560 is an urgently needed, balanced response to a significant social problem that is familiar to anyone with exposure to child custody litigation. The public overwhelmingly supports the equal shared parenting solution. Parliament will soon speak on the issue.


Brian Ludmer of LudmerLaw is a business and family law practitioner and was among the drafters of bill C-560.

Comments   

+1 # G. Cunninghamg 2014-07-06 11:35
Its pretty obvious most lawyers are against equal shared parenting. The true reason is they know it will cut family law business in half. If both parties are required to negotiate accesd at 50/50 our separation and divorce rate would be cut in half. Secondly in regards to boys well any open minded lawyer or majestrate would do well to read"bringing up boys" by Dr Dobson. Canada and US better wake up soon or find themselveskn a broken nation. Our Country was built by families. Without the family we will no longer have a nation.
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+2 # Elena Cameron 2014-06-17 22:21
What about brest feeding mothers who are drinking alcohol ,interfere with fathers and children contact,pretended to be victims,use their children to pay back to their exes.We can go on and on and on. Two fit and willing parents have to raise their children for their healthy development and to optimize their potential .Mothers can be some times are very bad so do Fathers.Nothing to do with equal parenting .
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-3 # Ken Webster 2014-06-17 01:35
Shared parenting has been a disaster for Australian children. Courts have forced young children to live with convicted child sex offenders, ordered a 4 year old to fly to Dubai monthly to have shared care with his mother, had breast fed newborn babies sent to fathers who work full time and place them in child care or with elderly mothers. There has been an assumption that fathers have the right to shared care regardless of the quality of the relationship
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+1 # Elena Cameron 2014-05-29 09:12
They killed the C-560 bill.My son can see his daughter only
1 hour a week because his vindictive ,narcissistic ex haired $550/h Lawyer to get solo custody,my son is fit loving father and we going to court without lawyer .My son created beautiful room for his daughter,I am not working and can help anytime. We will take our chances on the court and will fight for equal rights .
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+2 # Sean Doherty 2014-05-30 00:23
I can't over emphasize how sad I feel for your son's situation. I have not seen my daughter for 12 years. And that is with a joke of a court order that says I am supposed to to be able too. The death of this bill is the death of hope for many canadian. I wish you the best. There is no consolation to this truly evil system.
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+2 # Aeriol Alderking 2014-06-04 10:51
I feel for you Sean. My friend never saw his daughter all the years she was growing up. His wife committed adultery with several men during their marriage (including the family doctor). She told people all kinds of stories and had neighbors intimidate him when he tried to pick up his child for access visits. It was too ugly to continually expose the child to, so he gave up. As an adult, his daughter contacted him and they have a good relationship. Hopefully you will hear from your daughter as well.
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+1 # Aeriol Alderking 2014-06-04 10:40
Google Access Pro Bono for free legal advice. Sometimes the Salvation Army also has legal help. Law clinics with legal students in training can assist as well as the website from the government explaining court proceedings. Some lawyers will argue that Family court is the place to be, but in my opinion it is a zoo. Supreme Court is better even if it costs a bit more to file papers. Things can be done by affidavit which gives you time to work through your èvidence`and put it in order. Judges rarely read affidavits, so be prepared to point out the paragraphs that are most relevant. Èvidence`is attached and labelled so it is easy to point the judge to specific documents that prove your point.
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+1 # Time for change 2014-05-29 03:36
Lawyers defend their clients, clients are the parents, and children are left with a final decision whether they like it or not. How is this the child's best interest? People, etc say children are not property? Really? They were made property the minute the laws and courts assigned a dollar value to them.
Support bill c560.
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+8 # Elizabeth Mews 2014-05-18 09:09
To lawyers who cling to this idea of expertise on matters related to family court and argue against equal shared custody aka Bill C560. My mother held my sister in her arms when we drove; it was the best practice at that time. The cars were considered safe; no airbags… To sell cars, companies have to continuously improve or people bought elsewhere. Whereas courts hold to old laws with little outside influence for improvement; the only change can come from new federal laws. Many researchers have documented that what we do in the courts isn’t in the child’s best interest. These are child development experts; they have provided research with fidelity recommending shared equal custody. Everyone involved need to remember what matters is the child and listening to the real experts, researchers whose work informs us that equal shared custody is the best practice. Let’s remind MPs they represent their ridings and 80% of Canadians believe equal shared parenting is right for the children.
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+6 # Elizabeth Mews 2014-05-18 08:33
Lawyers state Bill 560 is “not in the best interests of the child” they state they are experts in this matter based on their experience and training. Let’s examine what family court lawyers (lawyer) are experts in? Hopefully they are experts in how to win in family court. Let’s also examine whose best interest they represent in family court? Lawyers generally work for the mother or father and subsequently lawyers represent their best interest, not the child’s. Who pays them? certainly not the child! I agree lawyers are experts in delivering on legal matters in the current family court system and therefore have a lot invested in staying the same. Everyone involved need to remember what really matters is the children and shared custody is what the child development experts are repeatedly telling us. Public opinion is saying the same. With Bill C 560 Is it not time to listen?
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+3 # Elena Cameron 2014-05-08 17:38
Dear mr.Casey ,
Right now in the most cases children of divorce have a "prime care giver" and a "visiter".Bond between a visiting parent and child will fade or will never happen because strength of this bond is proportional to parenting time.Is it in the best interest of the child ? Maybe in some situations, but not in majority .I know about parental alienation by my own experience ,it can leave a print on whole life.Children need both EQUAL parents and EQUAL is the key word, please don't afraid of "equality"it is in the best interest of the children who will be the parents very soon themselves ! So the bill C-560 protects rights of all Canadians ! Please reconsider ,vote for C-560,support majority of Canadians, you can help a lot of people including children
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+9 # Dean Raugust 2014-05-07 10:46
We have begun our 4th year since seperation and have joint custody. My children were 12 and 7 when taken and although I have begged for therapy for my children since seperation. I have had no contact with them. After over 4 years, a bilateral assessment, over $200,000 spent, an order for reunification has just been signed but still waiting for Dr. Appointment. Ex partner will likely still not cooperate as they have breeched every order since seperation. This Bill would have saved my children years of chid psycological ABUSE!!! This is a crime against children and there should be accountability also.
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+8 # Travis Thoring 2014-05-06 23:51
I completely agree with bill C-560and I'll tell u why. 1. The first question I'll ask any of u that isn't supporting the bill,is why equal parenting when together is what's best for the kids..but when separated its not? why must one parent have more of a say in how the kids are raised than the other.... it's equal when your together right? Secondly. I'm a victim of alienation as well as not being able to parent equally simply because "she looking forward to having the kids all the time" if our current family law systemis working so well...how are fathers in the same situation being kept from our kids. She left me out of the blue... moved 4 hours away from me with my kids.... I gave up my life and moved to where they are so I could See them everyday... and yet I can't. When is our legal system gonna stand up against power tripping mothers..... we need a bill like this to even the playing field
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+8 # Elena Cameron 2014-05-06 16:51
Why some people are afraid of "equality"?It is good for
Children to have both parents with equal Authority which can only build by spending equal time with child and if one parent is "unfit" court can take away this Privilege to be a full Parent.
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0 # Sean Doherty 2014-05-28 19:14
Privilege is an irresponsible word to use. If someone damages or injures an other human being then the law can step in. Until that happens, "unfit" is simply an opinion use to abduct children. Make no mistake about this, family law courts are child abduction courts period. It was also legal to abduct native children and send them to residential schools. Another opinion the was "for the best interests of". One which the government has apologized for. How many more lives have do be destroyed because of these arrogant opinions?
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-10 # Patricia Hebert 2014-05-05 22:12
I also completely disagree with the writer. We know that most children benefit from meaningful relationship with both parents, but this bill forces all children into the exact same parenting regime. It actually discourages settlement, by allowing one parent to rely on the trump card of exactly equal time by legislation, instead of looking at what really works for their children from the children's interests. Parents should be empowered to develop a parenting plan, which may not be exactly equal, but which actually works given all the unique circumstances of that family. .

There are issues with the system, but putting children's interests behind a desire to see shared parenting is misguided and sounds like a huge step backward. Mediators know that we solve problems by asking "What will be best for your child" but the drafters of this bill want to throw out that powerful tool. That would be a poor outcome for Canadian families.
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+9 # Bill C560 2014-05-06 16:02
I agree with Bill C-560. I'm currently going through a divorce where I can prove over 300 lies made by my ex-wife through audio and video recordings, emails, letters and documents. What the bill does is make a lying parent pretending to be a victim for leverage in court, prove they are a victim. It will prevent such dirty tactics and use of the children as a divorce court pawn. Lawyers who make money off of Family Law have an extreme bias to keeping the status quo because they make money off of the children. It's about time the children are being prioritized over non-collaborative lawyers! It will not be a cookie cutter solution because if one parent made all the income while the other solely cared for the kids then that can be proven. But when the children have had both parents heavily involved in their lives, why should the children be denied maximizing their time with both parents? The current system promotes adversarial tactics to gain wealth for one parent and the lawyer(s)!
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+4 # Aeriol Alderking 2014-05-06 17:32
"Power tool" is exactly what should not be occurring. Children are not at the center of these discussions as most children would tell you they want to see both parents. Nor are they allowed to choose the parent they want as there primary caregiver. Nor is there any truth to this "forcing" a one size fits all parenting plan. It merely gives the basic starting point of equal parenting time. To deny this is to deny the best interests of all children. Clearly you did not read the article, let alone the bill.
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-9 # Respectfully Dsagree 2014-05-05 20:52
Where can we find the document prepared by Mr. Ludmer that he refers to in which he addresses the myths and facts about Bill C-560?

As a family law practitioner, the presumption of shared parenting raises several red flags. For example: (1) where there has been a clear primary caregiver during the history of the relationship, it may be detrimental to the children to significantly reduce the time/routines spent with that parent; (2) where one parent is the victim of domestic abuse or violence, must s/he now submit evidence to prove the abuse? Will this not put that person at further risk?

Shared parenting only works when there is good communication between the parties and they live relatively close to one another to facilitate driving for school and activities. These underlying circumstances are not present in most cases that end up in family litigation. Assuming the facts are true will not make it so.
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+2 # Aeriol Alderking 2014-05-06 17:42
Often children are taken from an established lifestyle and nine months in a new location is viewed as they are now settled elsewhere. Nor is their a clear history of a caregiver, when the man is often "caregiving" by earning a living to support his spouse and children. This should not be devalued as less than the houseparent's contribution. It is no wonder that men are often seen as a walking wallet. Sometimes people are abused by the fact that they drive their partner over the edge while other partners are in fact disposed to violence. These are all facts that deserve careful deliberation. This is why the bill allows for equal parenting as a starting point, but gives leeway to consider additional facts. As it stands now, the courts do not consider all the facts, as they should. Judges say they do not have time to read the binders handed to them. Perhaps weeding out the less contentious cases will give them the time they need to consider the facts when dealing with more serious issues.
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+1 # Equally ParentalGuy 2014-07-07 16:17
Pursuant to point 2.. yes. The default nowadays is for some partner to holler "abuse" and be assumed to be truthful. It's become a weapon. We all know the success of proving that something didn't happen... but if there's truly been abuse, there will be evidence. So yes. If the allegation is "they hit me" the response should be "is there any proof"... not "they hit me" and the response being "can you prove you didn't hit them". The evidence gathering should not present any risk if the law does their job.
"Innocent until proven guilty" is at real issue here.. and so is "beyond a reasonable doubt". I was abused mentally and emotionally for a decade.. and then she chose to accuse me of abuse when she was done with me. Without any evidence that she'd been abused, and plenty that she hadn't, the judge said " I don't believe either one of you".. and convicted me of an assault I didn't do. I will wear that forever, along with the loss of 2 children I raised as my own for a decade.
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-13 # Wayne Barkauskas 2014-05-05 20:20
With respect, I cannot possibly disagree more with the writer. Over my 20+ years of practice as a family lawyer, mediator, arbitrator, parenting coordinator, and separated parent the issue of what is best for any child must be a focus on each child, not the parents. Setting a default of any kind completely ignores the child. They are not a "statistic" and their lives are not based on "the average". Both parents are on equal footing with the law now. If the law is not being applied properly, that is a different issue that has seen enormous advances through our courts. There should be no legal "hurdle' for either parent. It must solely be based on the unique needs of each child. They are not matrimonial property to be "equally divided unless proven otherwise". Any parent knows that the needs, maturity and experiences of their child are different than any other. I cannot understand how it could be argued that these criteria should be secondary to a legal construct of "equal time".
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0 # Kevin Pedersen 2014-05-06 05:41
Respectfully, there are 2 reasons why family courts will never find a child's unique characteristics or best interests. First, the Courts never try. When parents ask the Court to meet their unique child, judges say they prefer children be in school. Second, if judges were to try, it would require experts such as yourself. Since the vast majority of separated parents are self-represented, including some at the appellant level, we know there are no experts - not even student lawyers - looking for a child's unique needs & interests. As a lawyer you know there is case law describing the unacceptable risk that Courts will be unable to determine best interest. I agree with you this unacceptable hurdle or risk should not be.
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+7 # Aeriol Alderking 2014-05-06 17:26
That is rubbish trotted out in court every day in the face of reality. Children, like property, are under "the possession is nine tenths of the law". Whoever takes the children at the outset and establishes them in a school for a few months elsewhere is the winner from the outset. It is an uphill battle to get access after that. Nor does the court care about the "truth". Judges don't even read the affidavits put before them.
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+3 # ESP NOW 2014-05-07 11:48
I couldn't agree more with Aeriol's statement. It is a truly shocking situation. Equal Shared Parenting forces parents onto an equal footing and requires them to argue unique situations/circumstances from that point - not from a point of "my ex took the kid when we split and won't let me see him/her". Surely it is fair to assume that equal access to both parents is best for the child in the VAST MAJORITY of cases, not the exceptions? Lawyers seem to raise questions surrounding the minority situations (spousal abuse, totally unequal parenting, etc.) to argue that assumed equal parenting is invalid. Time for the law to catch up with societal realities.
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+10 # Adversarial Lawyers 2014-05-07 12:09
This bill would never have had to be introduced if lawyers were not adversarial and stopped trying to use outside agencies and the children to gain leverage.
As an example, I'm going through a divorce right now. I never had the police called during my marriage. As soon as we split and my ex retained a lawyer, no more than 2 days passed before the police were called to try to have me arrested! Another lawyer told me that my ex's law firm is known for using that tactic. My ex has called the police 7 times making false allegations. I have never been charged but living with the stress of what will she allege next would stop if there is no proof of abuse or neglect....prior to a separation!
She has also tried taking my kids to the doctor twice alleging I abused my kids. My 2 year old kid who is not able to lie told the doctor the bruise on the shin was caused playing soccer. All these games started once a lawyer was retained! Stop trying to protect your money, protect the kids!
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+4 # Tommmy Boy 2014-05-08 12:51
I couldnt agree more. I have been fighting my ex for 4 years to spend more time with my kids. She uses the same lets call the police tactics and make up falsse accusations. My kids are finally getting old enough to stand up for themself and tell the truth and the tides are turning. My ex has physically, mentally, and emotionlly abused my kids for 4 years and it has all fallen on deaf ears. So after 4 years 50,000 plus and two destroyed little girls there is finally a chance they will be saved. And why you ask, because the courts automatically give the kids to the woman for its their meal ticket. If woman has to support themself and the kids on there own they wouldnt want them. They have kids to support themself. They never have to work and grow up. About time Men get a fighting chance in court.
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0 # Elizabeth Mews 2014-05-29 10:43
With your lens, kids of divorce are court property. Lobby for a new BILL "in the best interest of the child;at conception all parents go to court for access to ensure all parents are treated equally and without discrimination". The court will determine who is the best parent and assign. Lots of business.

The courts are not advanced. It took 2 hours to determine less time with dad; why? daycare friends are more important than time with dad, and the child tax credit would be reduced for mom if dad had more time. Judge acknowledged there were no issues with either parent.

Your comments speak to your blinders. Have you reviewed the papers of the credible experts in child development and psycho social behavior? They have provided repeated current evidence based research with fidelity. Support your 20 years experience position; interview the kids of those you represented, learn out the good, the bad and ugly.
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