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.