Reading this article
, you'd never guess that 12 years ago the Canadian Special Joint Committee on Child Custody and Access recommended that the best interests of children are served by "close and continuous relationship[s]" with both parents post-divorce (Law Times
, 2/7/11). Indeed, reading its he said/she said version of the equal parenting debate, it would be easy to mistake the publication for Rip Van Winkle who's just coming out of a 30-year snooze. So no mention is made of the fact that the same commission recommended that, in child custody decisions, "there be no preference in favour of either parent solely on the basis of that parent's gender." And again, no one reading the article would learn that the Commission recommended that family courts "ensur[e] both parents' active involvement in [the child's] life after separation." For that matter, who could imagine, having read the article, that as little as five months ago, journalist Barbara Kay had written this:
A National Post poll indicated that 91% of its readership supported equal custody as an alternative to sole custody determination, and a recent poll by the federal government has 80% of the public, from every political persuasion, supporting equal parenting.
How would any reader know that Canadian MP Maurice Velacott has had an equal parenting bill before Parliament for some years now or that, with the Green Party's announced support for it, according to Kay,
By my reckoning that means every single federal party is on board with the idea that both parents have the right to maintain a strong, loving bond with their children…
No, none of that history of the drive for equal parenting in Canada is mentioned. As far as anyone can tell from the article, the very notion of equally-shared parenting or a presumption in the law thereof is brand new. And that conceit allows the writer, Judy Van Rhijn, to quote those in favor of equal parenting and those opposed and call the piece balanced. After all, if readers aren't familiar with the overwhelming support for shared parenting among the Canadian populace, social scientists and political parties, it makes the arguments of those opposed seem more plausible. Fortunately, the piece quotes Dr. Edward Kruk who's done as much as anyone to point out the many benefits of shared parenting to children and the many detriments of the "winner-take-all" system now in place. Kruk also favors a presumption of shared parenting and a parallel presumption against it in the case of domestic violence. But his second presumption is not simply the garden-variety notion peddled by so many anti-father advocates - that any allegation against a father of any form of DV should be sufficient to deprive his child of his care, love and guidance. No, what Kruk calls for is very much what the bill for shared parenting now before the Minnesota House of Representatives calls for. According to both, only proven, criminal violence by a parent that harms or threatens harm to a child can be used to deprive that child of a parent.
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.
The piece quotes Toronto attorney, Gary Wise who 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."
Wise echoes what family court reform advocates have been saying for a long time now - that the current system reflects the realities of 30 years ago, not today's and that equal parenting would reduce the number of divorces. As I've written many times before, the fact that 70% of divorces in the U.S. are file by women has been authoritatively shown to result from the fact that they know they'll get the kids. Researchers Margaret Brinig and Douglas Allen said that single factor "swamped" all others in determining who filed for divorce. Van Rhijn's opponents of shared parenting rely on arguments that are by turns, unsupported by any data, proven not to work and legally shaky. For the last proposition, Exhibit 'A' is attorney Barbara Landau for whom actual proof of some sort of domestic violence is too great a burden to bear when one parent wants to take another out of a child's life.
"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.'
Just for the record, where there is an "onus," i.e. a presumption in law, it is not "often," but always
the burden of the party seeking to rebut it to present evidence to do so. But note Landau's astonishment at the idea that parents seeking to remove another parent from a child's life be required to actually present evidence that it should be done. That a member of the bar should bridle at the necessity of proving one's case says more than I can ever begin to. Then there's attorney Jane Murray for whom a presumption of equally-shared parenting is simply unnecessary.
"There is already a direction in the Divorce Act that one of the factors be maximizing the child"s time with each parent.'
She's right about that, but seems not to notice that it rebuts her argument rather than supporting it. The 90% of non-custodial parents in Canada who are fathers would surely ask Murray if they could, "how's that working out?" The point being that, if the presumption is unnecessary, the current system must be working to maintain close parent-child relationships post-divorce. But of course it's doing no such thing, which is why it needs to be changed. Then there's the notion that the parent who does most of the breadwinning in the family prior to breakup should be marginalized in his child's life afterward. (Charmingly he's called the "assistant parent.") There are a couple of flaws in that argument. The first is that no one should be penalized for providing for his family. That effort is no less valuable to a child than hands-on care and in some ways is more so. The second is that children don't see the primary breadwinner as a non-parent, however much anti-father advocates might like them to. The fact is that the current system of primary custodian/visitor effectively removes fathers from children's lives. That's objectively bad for children, but more to the point, children know it; they experience the loss. "Where's daddy?" The idea that the primary caregiver should get 90% of the parenting time is good for only one person of the three involved. The primary custodial parent may think it's a great idea; non-custodial parents and children don't. And last, Landau reaches deep into her bag of outworn ideas to claim that all of this equal parenting folderol is just a whine by pinch-penny fathers trying to get out of paying child support. The only problem with that idea is that there is absolutely no social science to support it. It's an utterly threadbare argument that has but one goal, and intellectual honesty isn't it. It's the last refuge of those who will stop at nothing and say anything to keep fathers out of the lives of their children. But of course readers of Law Times
will have to go elsewhere to find out those facts. FathersandFamilies.org, perhaps.