Conservative MP Maurice Vellacott’s private member’s bill aims to amend Canada’s Divorce Act to create a rebuttable presumption of equal shared parenting.
If passed, it would mean divorced parents have an equal role in raising their children, unless one parent can prove why this should not be the case. Columnist Barbara Kay recently championed this legislation in the National Post, claiming it will cure the problems in the family law system. In high-conflict cases, she describes the family law system as very adversarial, “whereby one parent (usually the mother) ‘wins’ primary residence for the children, producing injustice, heartbreak and financial ruin on a massive scale.”
She also quotes Toronto lawyer Brian Ludmer who claims in many European countries and Australia with equal shared parenting (ESP) legislation, the majority of divorced couples resolve parenting arrangements without turning to lawyers or the courts. However, Helen Rhodes, a law professor at the University of Melbourne, reviews a study of the 2006 Australian legislation that is similar to Canada’s Bill C-560 in a paper, “The Dangers of Shared Care Legislation: Why Australia Needs (Yet More) Family Law Reform.” She concludes that “the reforms have been successful in producing an increase in ‘substantially shared care arrangements’ since the legislation came into force. At the same time, however, the research indicates that a significant number of these arrangements are characterized by intense parental conflict, and that shared care of children is a key variable in affecting poor emotional outcomes for children.”
Among studies noted was the “MacIntosh data” which revealed that for a significant proportion of the children in the sample, shared care was a source of “psychological strain … where the key factor … was the presence of ongoing conflict between the parents.”
She identified the equal shared parenting legislation as the source of the harmful care arrangements. Accordingly, various family law lawyers argue against legal presumptions about children’s interests.
As a lawyer who has practised family law for 33 years, I find this debate between proand anti-ESP legislation to be phony and irrelevant, although honest. In the real world of the family courts, judges make decisions based on the facts of each case within the context of the law. They will continue making decisions based on those facts, far less than on “presumptions.”
Moreover, what many pro- ESP lawyers forget is that under section 20 of Ontario’s Children’s Law Reform Act, and similar provincial legislation across Canada, we already have ESP legislation for nonmarried and sometimes divorced couples. It reads, in part, “… the father and the mother of a child are equally entitled to custody of a child.”
The same section only suspends that right if, on the parents’ separation, a child lives with only one of them “with the consent, implied consent or acquiescence of the other parent” or by “(written) separation agreement or court order.”
But if that does not happen, the court presumes equal and joint custody. While it is arguable that, unlike the Divorce Act for married couples, this presumption of joint custody has hardly made a difference in the way the courts have treated children of unmarried vs. married couples in Ontario and other provinces. It is true that the Divorce Act for married couples uses a different presumption, one of “best interests.” But the presumptions have made little difference on the ground.
So what does make the real difference, especially in highconflict cases? Many other factors: The experience of one’s lawyer, the strategy used to present the facts, whether a parenting assessment is ordered, the identity of the assessor, money for legal fees, whether legal aid will fund the case, which judge or judges are involved, the conduct of the parents, whether there are child protection issues, and whether the children have any disabilities.
Most importantly, which parent really listens?
— John Syrtash, lawyer for Garfin Zeidenberg LLP is chair of the B’nai Brith Canada Committee for Jewish Divorce and Family Law