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Focus: Equal shared parenting bill defeated

But proponent vows to keep pushing for Divorce Act changes
|Written By Arshy Mann

The latest attempt to bring the presumption of equal shared parenting to child custody matters in Canada has failed.

‘The social science literature tells us that the closer you get to 50/50 and two primary parents, the better the outcomes,’ says Brian Ludmer.

Bill C-560, legislation introduced by Saskatchewan Conservative MP Maurice Vellacott, went down to defeat on second reading. The bill would have amended the Divorce Act in a number of ways, most prominently to prescribe that judges should start from an assumption that parents should have equal custody unless giving one side a greater share could demonstrably enhance the best interests of the child.

Brian Ludmer, founding partner of Ludmer Law and co-founder of Lawyers for Shared Parenting, wrote the language in the bill. He was surprised and disappointed the bill didn’t at least make it to the committee stage.

“What were they so afraid of that they couldn’t let it get to committee for further study? You know what they were afraid of in my view? That the committee would say there’s a lot of merit to this. I think this got shut down because they didn’t want to hear a further study and to hear there’s actually merit.”

Equal shared parenting has become a major cause for fathers’ and men’s rights groups internationally. Proposals similar to bill C-560 have surfaced during several parliamentary sessions but have yet to make any headway.

Ludmer points to social science literature, much of it by Edward Kruk, a social work professor at the University of British Columbia, that argues equal shared parenting is in the best interests of children.

“The social science literature tells us that the closer you get to 50/50 and two primary parents, the better the outcomes,” says Ludmer.

Currently, judges try to determine an arrangement that’s in the best interests of the children. Ludmer argues the approach often leads to needless litigation that’s actually bad for children.

“The most unfair criticism of bill C-560 or frankly any similar legislation in any jurisdiction around the world is that it’s about parents’ rights rather than children’s rights. And it’s not. The current system is about parents’ rights.”

John-Paul Boyd, executive director of the Canadian Research Institute for Law and the Family, believes proponents of equal shared parenting misunderstand the reasons custody arrangements often end up favouring one parent over another.

“If the parent who has not been the stay-at-home parent is still working full time, why on earth would you arrange a 50/50 set of parenting arrangements?”

And while he agrees there are some studies that show an equal parenting arrangement is best for children, there are also a large number of reports that come to different conclusions.

“In fact, if there is any consensus in the literature, the consensus tends to gather around the idea that there is no particular parenting arrangement which is presumptively best for all children,” says Boyd.

While Boyd is against a presumption of equal shared parenting, he thinks it’s wrong for a judge to impose any sort of presumption.

“The only issue I have is that there should be a presumption about any kind of parenting arrangements, whether it’s shared parenting or some sort of primary-caregiver-plus-weekend-parent kind of thing. Both of those presumptions are wrong-headed.”

Many people involved with the fathers’ rights movement argue that since a significantly greater number of women receive a larger share of custody in separation cases between heterosexual couples, the courts have a bias against men. Boyd, however, argues the disparity reflects the fact that women, for a variety of economic and social reasons, tend to be the primary caregiver before separation. Courts simply maintain that.

“After all, the status quo is an arrangement that the parents themselves agreed to. They together made the economic and social decision that this particular parent would be the parent staying at home caring for the children,” he says.

“And so the judge makes an order carrying on the status quo on the basis that this is the arrangement that the child is used to, but also just from a purely logical perspective, this is what the parents themselves had agreed to.”

Boyd argues there are many reasons women tend to be the primary caregiver before separation. For example, women on average tend to earn less than men and, as a result, are more likely to leave their jobs or take on part-time work.

Another reason women become the primary caregiver, according to Boyd, is mothers have the ability to breastfeed, something many families want to do for their children. But Boyd says that even without these two realities, women still end up with most of the childcare work.

“Even if you were able to strip away the economic part of it and biological part of it, there’s still the sociological expectation that we continue to be acculturated with, this idea that moms are the perpetual caregivers and the idea that dads work outside the home,” he says.

Another aspect of the bill that worried Boyd was that it would have retroactively applied to all divorce orders made in the past.

“You can imagine the tidal wave of annoyed people flooding into court saying this is what should apply to me,” he says.

He didn’t oppose all aspects of the bill.

“One of the good parts was finally overhauling the antiquated and adversarial language with which we talk about the care of children, which is custody and access, which of course places the locus of the right in the hands of the parents rather than the hands of the children,” he says.

Bill-560 would have changed that language to instead talk about parenting time and parental responsibilities.

Ludmer maintains that in addition to providing better outcomes for children, the bill would have had the added benefit of clearing up some of the backlog in the family courts.

He argues other proposals, such as funding more mediation or making it mandatory, have failed to fix the problem.

For “the types of people who don’t settle their own affairs with the assistance of lawyers, mediation was always available,” he says.

“They’re not the type of people who are going to settle because you have mandatory mediation.”

And Ludmer argues that collaborative law ultimately fails because even collaborative lawyers ultimately have to follow their client’s instructions.

“And these types of people, the people that are so intent on marginalizing the other parent, they don’t hire collaborative lawyers in the first place. They hire lawyers who are going to fight this case and win this case for them,” he says.

Instead, Ludmer sees equal shared parenting as the only long-term solution to the problem.

“The answer is you need a default position to make it more difficult to litigate,” he says.

“And then guess what happens? Then the backlog gets cleared up, and suddenly you’ve got court time available for the cases that really need it, the troublesome situations.”

Although currently only the Green Party of Canada supports equal shared parenting, Ludmer is adamant.

“We’re not dissuaded; it is the only answer,” he says.

“We’ll keep going and hopefully it will become an election issue for the benefit of children.”

For more, see "Time for Canada to embrace equal shared parenting."

  • Robert Newman
    This bill should have been defeated but not for the reasons people think. Currently there is a financial incentive (both for the mother and the father) for the lower income earner to be given custody. Shared parenting cannot happen until child support is changed back to taxable for the recipient and tax deductible for the payor. This all goes back to the garbage 1997 guidelines for child support which need to be rewritten by a professional accountant like me and not incompetent lawyers.
  • Katrina Prystupa
    The gratuitous comment about lawyers is totally unfounded. When the draft CSG were presented, two versions were prepared -- one maintaining the previous status quo re: tax deductability/inclusion and the one which was chosen, eliminating it. Many lawyers (myself included) supported maintaining the previous tax model for child support. The reality is that the change in taxation was slipped in as a tax grab by the Liberal government of the day. Taxing more income in the higher earner's hands meant an awful lot of tax revenue that was going untaxed, given that child support recipients were more likely to earn less than child support payors.
  • Gernot Bremermann
    Not even worth barking about. It's a biased system with self interests at hand. Until women take the financial reigns, which they thankfully slowly are, men are pooched.
  • Gary T
    Boyd is so very wrong on so many fronts.
    His position is saturated with cart-before-the-horse mentality, and more concern about the courts' workload than any child.
    His whole argument about the parents' choice of familial workload somehow justifying what he calls continuing the status quo, shows just how much he thinks with blinders on.
    The intact family's choice, where the child sees and lives with both parents daily, cannot be the basis to justify, after a family breakup, only one parent as having full time and decision making authority with the child, while the other is relegated to infrequent visitor status. He calls that the status quo?
    The status quo is where the child is cared for, get to see a be with, and is the responsibility of both parents.
    Boyd's public opinions are special interest, an advocate for the system, not the children.
  • Katrina Prystupa
    The reality is that shared parenting works when parents want it to work. And it does for many children and their parents. Those cases are never litigated because they don't need to be. Spouting statistics about judicial rulings is therefore completely irrelevant. It may also work in a few limited situations where judges attempt to enforce it. But for the vast majority, it is just a recipe for dsaster. Also, pretending that the world has evolved to the point that most families share parenting roles equally does not help. There are some families for whom this is true, but it is certainly not the majority. Why disrupt the parenting arrangements post-separation more than is necessary?
  • George Piskor
    CRILF comes across as yesterday's organization. First, with two-earner families having been the norm for 25 years, let's dispense with last century's stay-at-home Mom thesis. Secondly, shared parenting IS the preferred (but not exclusive) norm in contemporary social science literature- even for young children.
    Thirdly, rebuttable presumption is found throughout family law as an aid to judicial efficiency. Why discriminate in the specific instance of shared parenting, especially when it promotes continuity of relationship for the child as per UN CRC?Fourthly, It is not only the Green Party that supports shared parenting; the Conservative Party adopted it years ago in its non-binding party platform. All parties supported it in the 1998 "For the Sake of the Children" report.Lastly, with 80% of Canadians supporting shared parenting -a figure comparable to that in other countries- it's becoming increasingly embarrassing to see the legal establishment out of sync.
  • Elizabeth G.
    I too applaud both Mr. Ludmer and Mr. Vellacott for trying to fix this horrendous system in Canada.

    I am a mother and a woman watching her son go through a divorce and the legal system and I am appalled at the unfairness and treatment of fathers - when I see how the women are manipulating the system -- they are using their children as weapons on the battlefield of divorce to get more out of their husbands and to punish their husbands for leaving -- the judges are not even fair and do not even listen to the man -- they take the female side without even considering the harm on the children -- every time my grandchildren come to visit, they beg to come live with their dad. This Bill needs to be pushed through and needs to be supported -- it needs someone to campaign for the rights of Fathers. So many fathers are hurting, so many have given up, because the system has failed them. (soli deo gloria).
  • Corrupt System
    Not just the system. It is the lawyers - especially those at the top of the food chain - who have failed my kids miserably. And no one wants to do anything about it. In my case, neither the ADR nor the OAFM wanted to touch my case simply because of who my mediator/arbitrator was. The fact that who my co-parent is (female community leader with beaucoup connections) should have had no bearing on my case. The fact is, I was parenting my kids more often than my high-conflict, work-a-holic ex-wife. But I guess because I'm a man, there are certain perceptions that still pervade amongst the elitist legal community. I hope to change that by going public with my story.
  • Baldwin Bravo
    Get in touch with MHRO, they would be interested in hearing and possibly publicizing your story
  • Corrupt System
    I applaud Mr. Ludmer's attempt to fix what is a blatant attempt to reduce father's time with their children.

    I am a father who endured a corrupt mediation/arbitration process supposedly led by one of Toronto's most reputable lawyers. The whole process was skewed toward my ex-wife right off the bat - and it didn't help the false allegations that she and her lawyer lobbed at me throughout. It didn't help that the mediator/arbitrator suggested to me in our first session how tired he is having to deal with his grandchildren in just one day. It didn't help that my high-conflict co-parent is considered a "community leader" who the mediator/arbitrator wanted to protect before being discredited publicly. And it didn't help that the mediator/arbitrator's close relative was good friends with my co-parent's father.

    But the mediator/arbitrator always said, "think about the kids". Rubbish.

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