On March 24, 2014, the Canadian Bar Association (CBA) issued a Press Release from Patricia Hebert, Vice-Chair of the CBA’s Family Law Section, which expressed opposition to Bill C-560, the popular Equal Parenting Bill, which is currently in Second Reading in Parliament. CEPC has analyzed Ms. Hebert’s comments, and has the following response to the primary objections in her statement:
CBA Claim #1
“The Canadian Bar Association (CBA) opposes Bill C-560, a private member’s bill, as it would shift the way custody is determined under the Divorce Act to parents’ rights – away from what is in the best interests of children.”
CEPC Response:
After a complete review of the Bill before Parliament, we conclude that the statement from the CBA misrepresents the letter and intent of Bill C-560. The only rights which are defined in the bill are new rights of the child to be raised equally by both parents.
CBA Claim #2
“Parenting is not about adults claiming rights,” says Patricia Hebert of Edmonton, Vice-Chair of the CBA’s National Family Law Section. “It is about the desire and ability to put children’s interests first.”
CEPC Response:
Consistent with Dr. Kruk’s observations, and with the opinion of 80% of Canadians, the CEPC believes that the best parent is both parents for most children. Bill C-560 is a parental responsibility bill, which moves our Family Courts from a winner-take-all system where parents fight over the “right” to Sole Custody to an Equal Shared Parenting responsibility rebuttable presumption, which balances the power between the parents. Our reading of Bill C-560 is that it encourages the active and equal involvement of both parents in the raising of the child(ren). As shown above, Bill C-560 has nothing to say about rights, except where the rights of the child(ren) are concerned.
The CBA claim that the Equal Parenting Bill C-560 elevates parents’ rights over the children’s best interests is false.
Get the details here.
CBA Claim #3
“The bill is based on the faulty assumption that equal parenting time will work for all families, regardless of abilities, circumstances, needs, history, challenges or attitudes of all those involved.”
CEPC Response:
We have reviewed all paragraphs where the words “equal” or “equally” appear in Bill C-560. None of those paragraphs take away the Judge’s discretion to assess the child’s best interests, and to make an order which allocates parenting time or parental responsibility unequally. All that is required is that the judge make a finding based on the unique facts of the case that the child(ren)’s best interests would be substantially enhanced by an unequal allocation of time or responsibility, and that the Judge’s reasons describe the finding in detail.
Again, the CEPC concludes that the CBA statement misrepresents Bill C-560.
Get the details here.
CBA Claim #4:
“This clearly makes children’s interests a very low priority, which is contradictory to the stated goals of Canadian family laws as well as Canada’s obligations under the Hague Convention on the Rights of the Child.”
CEPC Response:
We have reviewed the Hague Conventions, the UN Convention on the Rights of the Child, and Bill C-560. We conclude that Bill C-560 is not only consistent with the relevant Articles in the UN Convention on the Rights of the Child, but that it provides an even higher level of protection of the child(ren)’s rights to both parents than is required by the Convention. The CBA Statement not only confuses the Hague Convention and the UN Convention on the Rights of the Child, but it does not appear to understand Canada’s responsibilities under either agreement.
The CBA press release’s misstatements regarding Bill C-560 and Canada’s international obligations are so significant that we can only conclude that they are scare tactics intended to avoid the real issue, which is the overwhelmingly poor job done in Canada today protecting children’s rights. The CBA’s members bear responsibility for the excess conflict in the court system, as well as the poor outcomes for children resulting from the chaos in the Courts.
Get the details here.
CBA Claim #5:
“The CBA agrees that shared parenting is a good outcome for many families. Where equal time and responsibility can be shown to be in the best interests of children, judges can and do make that order under the current law. The CBA supports legal reform and resources that will help parents effectively share parenting, in whatever ways meet their own children’s needs best. One size does not fit all.”
CEPC Response
This CBA Claim would be laudable if it were consistent with the facts of Family Law in Canada today. A recent study showed that the mother obtained either sole custody or joint custody with primary residence in 89% of the cases studied.
The CEPC agrees with Dr. Kruk when he wrote in the “The Equal Parent Presumption” that in Canada. as implemented in the Family Courts the last 25 years, “Best-interests-of the child-based decisions reflect a sole custody presumption, with primary residence orders being the norm.”
Get the details here.
CEPC Conclusion:
Nothing in Bill C-560 prevents a judge from rebutting the equal parenting presumption, where the child’s best interests would be substantially enhanced. Bill C-560 declares to the Courts, on behalf of Parliament and the Canadian people, that Equal Parenting is intrinsic to the Child’s Best Interests. 80% of Canadians support the need for Equal Parenting and Family Court Reform.
The CBA’s positions, as reflected in Ms. Hebert’s Press Release, are not supported by the latest research, nor by the people of Canada. The CBA needs to bring more facts to support its opposition to Bill C-560 than it has to date, or many may conclude that self interest, rather than the best interests of children, motivate the CBA to assume a position opposed to Bill C-560.
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