Debate fires up over presumption of joint custody

A fundamental change to the very basis on which post-separation parenting is viewed is being urged by some members of the legal and mental-health professions while others fiercely oppose the idea.

In fact, the introduction of a presumption of continued joint custody after separation is a measure that provokes strong opinions on both sides of the argument. Garry Wise of Wise Law Office in Toronto says that bringing in a presumption of joint custody would be an “across-the-board” approach to family law reform that would reduce the number of cases coming before the courts.

“This would be the biggest solution of all. What we do not have is a legally sanctioned culture of joint parenting at the federal level under the Divorce Act or the provincial level. We have an anachronism of a custody/access-based system that evolved one or more generation ago when one parent was at home and one parent was working.

Almost all families now do the parenting together, and we have an arbitrary, artificial concept of best interests of the children that is so pliable and subjective that you can read it every which way.”
With a presumption in place, Wise says the first message couples would get from courts and legal practitioners is the expectation of shared parenting.

“The discussion would begin differently. It would set the stage for more cases to settle in a way the parties themselves feel is appropriate and equitable. With that culture combined with mandatory mediation where the parties narrow the issues and resolve more issues that affect the ability of the parties to parent, we’d be well on the way to forging a new culture after separation.”

Wise compares the idea to the introduction of the child-support guidelines. “It was unfair to certain parties and fair to others but it established a new status quo and took almost all the cases off the table. I’d propose something equally radical.”

The issue was given an airing in a lively debate at the Association of Family and Conciliation Courts Ontario conference in October. Edward Kruk, an associate professor with the school of social work and family studies at the University of British Columbia, presented the case for a rebuttable presumption of equal or shared parenting responsibilities, with the opposite view being given by lawyer Martha McCarthy.

Kruk has become one of the most vocal supporters of a presumption and favours a transition from shared parenting in a two-parent household to shared parenting in two different households. Kruk believes the “winner-take-all” adversarial approach through sole custody isn’t working for either children or parents and that change is urgently needed.

His numerous papers emphasize the negative effects on children with absent fathers and the positive impacts on children of shared custody arrangements compared to sole custody situations. He also notes there’s decreasing parental conflict in joint custody families as compared to an increase of such problems over time in sole custody families.

In his presentation, he varied his basic proposal for a presumption by coupling it with a rebuttable presumption against shared custody in cases of family violence and abuse, as proposed by the National Association of Women and the Law.

His published opinions say this would apply in proven cases involving a criminal conviction in a matter directly affecting the parenting of the children or a finding of a child in need of protection by a child welfare authority. Kruk proposes that the much more stringent standard of child in need of protection be applied before removing a parent’s legal custody rather than the test that looks to the best interests of the child.

Wise is in favour of putting the onus to prove that a presumption is inappropriate on the spouse who doesn’t agree. “If legislation said the starting point is joint custody, and the onus is on the parties to provide evidence that a different arrangement is in the best interests of the children, it would be difficult for a parent to ever satisfy that,” he says.

This is precisely what worries Toronto lawyer and mediator Barbara Landau, who was present at the debate and strongly disagrees with the proposal. “Where there is an onus, it is often on the victimized party to disprove it,” she says. “It makes for a potentially much more adversarial situation. If a parent thinks a situation is inappropriate for a shared arrangement, they have to go to court and argue against it.”

Landau believes there’s a lack of understanding of the difference between joint legal custody, where parties agree to consult with each other on significant decisions, and joint physical custody, which involves having the children 50 per cent of the time.

This is echoed by other practitioners. Jane Murray of Burke-Robertson LLP in Ottawa is concerned about the various interpretations of joint custody.

“There would have to be a clear definition of exactly what you’re presuming or there would be a lot of litigation around the definition,” she says, noting she believes a presumption is unnecessary. “There is already a direction in the Divorce Act that one of the factors be maximizing the child’s time with each parent.”

Lawyer Kristen Bucci of Zochodne Bucci in Thunder Bay, Ont., isn’t in favour of true joint custody, which she defines as joint decision-making. In her experience, it works only in rare cases. “At the point of separation, there is a lot of animosity. You need two people to talk calmly, rationally, and in the best interests of the child, and that rarely happens in real life.”

With respect to shared physical custody, Landau finds it’s rare that people come up with a plan for 50-per-cent sharing of physical custody. “You need geographic proximity because the children attend school and have friends in the neighbourhood.

You need co-ordination and you need availability. People must have jobs that allow them to be available to have the children that much. I see people who have to be at work from 7 a.m. to 7 p.m. Their plan is to leave the children with a caregiver when the other parent is at home.”

Landau adds: “You also have to consider the stage of development and temperament of the child. Do the children take to change easily or do they suffer anxiety over the smallest changes? There is a need for stability, security, and a reasonable routine.”

Landau also stresses the need to look at the parenting connection before the separation. “Some parents who are asking for 50 per cent have never looked after the child on their own except for maybe 20 minutes while someone went to the 7-Eleven. You need to build up the child’s comfort and confidence.”

Landau also stresses that the level of communication between the parents needs to be respectful so the children aren’t travelling back and forth between war zones.
Bucci, meanwhile, believes parents need to prove they were equally involved in parenting prior to separation. “One partner says, ‘Yes, I was absolutely equally involved.’

The other partner says, ‘Absolutely not. I did the majority of the decision-making.’ Generally, there is a parent and an assistant parent. How does a judge make those two positions coincide?”
Bucci, in fact, finds a lot of litigants get very hung up on a particular label. “So many parents want joint custody but are not really prepared to put in the work.”

Landau places the blame for this situation squarely at the feet of the child-support guidelines. “The question of equal time is contaminated by the supposed 40-per-cent rule of child support. Virtually every man wants 40 per cent of the time in the mistaken belief that they won’t have to pay child support.

I call it the faint-hope clause. If you took away the 40-per-cent rule, there would be a lot less fights over the percentage of time.”

Landau believes most cases start with a presumption that it’s in the child’s best interests to have a full relationship with both parents in any case. “A judge has an overriding responsibility to deal with each case in an individualized way, and that doesn’t preclude joint physical or joint legal custody.”

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