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April 9th, 2012 by Robert Franklin, Esq.
In Canada, the push for shared parenting continues, as this article makes clear (Global Edmonton, 4/7/12).  It’s a popular movement, with large majorities of Canadians, including children, supporting equal parenting post-divorce and loads of social science showing that it’s good for kids and adults alike.  But the family law bar and their friends in Parliament aren’t having it, so the Canadian people are stuck with a system that exacerbates parental conflict, harms children and is unfair to fathers.  That’s what happens when the will of the people is thwarted by elites with vested interests in the status quo.

All of those points are made pretty nicely by the linked-to article, albeit in a kind of shorthand.

One in four Canadian marriages end in divorce, and many of those breakups are not amicable – especially when children are involved. Things can get even more messy if parents can’t agree on the issue of custody. In those cases, it’s up to a judge to decide an arrangement based on “the best interests of the child.” And in Canada, that typically has meant awarding one parent with primary care.

The latest data from the Department of Justice shows mothers receive sole custody in 77 percent of cases, while fathers get it in only 9 percent of the time.

The requisite father who’s been abused by the system shows he knows more about family court practices than many judges.

After making dozens of trips to the Alberta Law Courts for a variety of issues relating to the custody of his two children, Russ McNeill believes the current system isn’t working.

“I don’t think the judicial system treated me fairly. I don’t think it treats any man fairly. I think it’s designed to put everybody into a cookie cutter that basically says dads get every second weekend and a mid-week visit,” he says.

In addition to draining him and his ex-wife emotionally, McNeill says the system pits the parents against each other.

“I don’t see that actually stopping the conflict. If anything, it increases the conflict because the other parent feels they’re being removed from their children unjustly and they’re very angry so they will look harder to find anything possible to find fault with the other parent,” McNeill adds.

He would like to see the current model be changed to adopt more of a shared parenting arrangement.

So would most of the rest of Canada.  Over the years, people there have been polled several times on what they’d prefer and each poll finds that about 70% of the people want a presumption of equal parenting after divorce. 

Those are the adults; their children want the same thing.  It’s seldom mentioned, but studies that ask children of divorce what parenting arrangement they’d prefer find that children want an unbroken relationship with both their parents in the event of divorce.  The simple fact is that many children lose all contact with their non-custodial parent.  In the U.S. 35% of children of divorce have no contact with their non-custodial parent according to the Census Bureau.  In England the figure is 33%.  I suspect similar figures apply to Canada.

That’s one of the points Dr. Edward Kruk makes when quoted in the linked-to article.

Dr. Edward Kruk, an associate professor of social work, has been studying the family court system and the effects sole custody decisions have on parents.

“We have kind of a indeterminate or shall we say a discretionary best interest of the child standard where judges are just guided by their own idiosyncratic biases and sort of subjective views of what’s best for a child,” Dr. Kruk says.

He says what’s needed is an approach that still focuses on the best interest of the child, but from the perspective of the child.

“And children are telling us clearly that their best interests are served by equal time with each parent.”

Dr. Kruk argues that a parent should not be separated from a child unless there’s a proven history of violence.

Kruk’s reference to the haphazard use of the concept of the best interests of the child brings to mind Canadian researcher Paul Millar’s empirical investigation into just what a child’s best interests consist of, and what they’re assumed to consist of by judges.  As Millar found, the two are strikingly different.

For one thing, the book that’s for decades been the guiding light for many judges, “Beyond the Best Interests of the Child” recommended factors for deciding custody that (a) bear no resemblance to factors actually promoting the best interests of children, (b) have no empirical basis and (c) just happen to be things that mothers tend to do and fathers tend not to do.  Therefore, buying food for the child tends to get a parent custody in the event of divorce, but earning the money with which to buy the food does not.

Millar’s conclusion is this:

Thus, the major tenet of [Beyond the Best Interests of the Child] – one that has been adopted wholeheartedly by many jurists, including the Supreme Court of Canada – is not only unsupported by evidence, but, worse, appears to promote harmful outcomes for chldren through the legal support given the destruction of one of the important parental relationships for the child.

That’s the news on the shared parenting front from Canada.  Despite all evidence to the contrary, a few judges and members of Parliament remain determined to both thwart the will of the Canadian people and fail their children.  And it’s all done in under the banner of “the best interests of the child.”

Fortunately, some MPs aren’t taking the antipathy for fathers and children lying down.

Senator Anne Cools, who has spent decades studying the psychological effects of separating a child from a parent, is also an advocate of shared parenting.

In 1998, she was a member of a special joint committee that looked at issues of parental custody and access to children. The committee’s principal recommendation was that shared parenting should be presumed in family court – a recommendation which has not been accepted by successive governments.

But Senator Cools is not giving up her fight, and is currently working on a bill that would have a regime of shared parenting.

“I want balance and equilibrium and fairness because those children haven an entitlement to meaningful involvement and continuing involvement with each and both of their parents,” she says.

Until that happens, McNeill has a piece of advice for other parents who are going through a divorce: “Go to mediation. Stay away from lawyers.”

Sounds like good advice.

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