A Plea for “Equal Parenting” by Glenn Cheriton
In December, 2010, a Toronto judge ridiculed both parents in a divorce case that hit the national news. The mother had so thoroughly taught the children to hate their father that the judge felt he had “no feasible option” but to award sole custody to the mother. The mother had tried to run over the father with her car, and the judge awarded her a mocking spousal support of $1 per month, in addition to child support.
There is much wrong with Canada’s divorce law and practice, as the above example shows. They are beyond the financial resources of most families and are excessively adversarial, with built in perverse incentives that disadvantage children by depriving them of the benefits of both parents and, often, grandparents.
So what is the solution? Are there feasible public policy alternatives? You wouldn’t think so, listening to the bar associations, vested interests and government funded feminist organizations. The two parent family has worked for thousands of years. It pre-dates the State as a form of governance, perhaps the only example of sustainable, collaborative governance. The two parent family works in practice, but western governments seem to use a vast array of perverse incentives and funding for anti-family interests to prove, in the face of all the social science to the contrary, that it can’t work for children and parents, at least in theory.
There is no one, simple, cure-all for the current Canadian approach to separation and divorce. But there are alternatives to it which correspond to various best practices, measured as outcomes for children and parents, which are perhaps best described as falling under an “equal parenting” rubric. The current system is an adversarial, overwhelmingly sole mother custody system, which “gives access” usually twice a month to the father. Let’s call the status quo the “custody-access” system.
The Canadian Equal Parenting Council (CEPC) has been working in recent years with federal Conservative MP Maurice Vellacott to ensure passage of a bill that would replace the current custody-access system to an equal parenting system. Indications are that the bill was supported by about 100 MPs from the Liberal, Conservative and NDP caucuses in the previous Parliament. The bill died with the 2011 election call, but CEPC is working to make these reforms into a government bill in the current parliament.
In 1998, the Joint Parliamentary Committee on Child Custody and Access made 48 recommendations for divorce reforms, largely to change the system along the lines of the Vellacott Bill. Every single one of these recommendations has been blocked by vested interests.
CEPC was formed in 2004 to advocate for divorce law reform based on equality and respect for both parents. It is a non-profit umbrella group of 38 organizations, with over 9,500 members. As a result of advocacy by CEPC, the Conservative and Green parties both advocate equal parenting policies. CEPC has a man and a woman as co-presidents. Governments have denied CEPC funding, as CEPC’s concept of men and women working together “for the sake of the children” does not fit the “official” state ideology.
The outcome sought by an equal parenting reform bill is that both parents should remain parents to their children after separation, as they were before the family breakup. In law, the way to do this seems to be to create a “rebuttable presumption” that both parents are fit and should equally share parenting rights and responsibilities, unless clear evidence requires that the child be removed from one, or both parents. It is rather like being considered innocent until proven guilty. The bill is opposed by the Canadian Bar Association and radical feminist groups, because, one suspects, the equal parenting choice is a threat to their incomes and careers.
The Family Law Bar and feminists are usually against the idea of presumptions, the “safety”/domestic violence argument and some variation of the “primary caregiver” doctrine. The public generally believes that family courts are full of unlegislated biases and presumptions. The biases are against the poor in favour of the rich, against fathers, against joint custody, often against religious and other minorities. Surveys show that 70% to 80% of Canadians – women and men – favour the idea of equal parenting and acknowledge that family courts are a problem for separating parents.
An increasing number of judges share those views. In a recent speech to the Ontario Bar, Ontario Chief Justice Warren Winkler said that “family law is in a state of crisis” and required “fundamental change”. The fundamental alternative to the current system, equal parenting, simply removes the presumption that parents need to fight in court until one runs out of money and the other gets sole jurisdiction over the children. Equal parenting is based on the presumption that kids keep their parents and parents stay as parents to the kids.
What about domestic violence? Violence in the form of criminal acts should be dealt with by criminal law, rather than, as is too often the case, removing the father on an unproven, often false, accusation. Children are not made any safer by the loss of the father. Statistically, they are in more danger from mom’s new boyfriend than from dad. The reality is that two parents monitoring and supporting each other – equal parenting – reduces the risk of abuse to children. Equal parenting simply replaces the accusation-based sole custody system with a requirement that accusations must be proved to be considered.
The “primary caregiver” doctrine suggests that children need one primary attachment figure and that another parent is unnecessary or undermines the primary caregiver. Somewhat based on some extremely shoddy “research” by Anna Freud, daughter of Sigmund, this doctrine contradicts virtually all reputable social science. The experience of two parents almost always gives children important lessons in healthy conflict resolution and relationships. Not all conflict is unhealthy, in spite of claims by some feminist theorists. We have more than one political party in Canada, and two official languages. If modern governance is collaborative, then two parents, within marriage and in joint custody after a separation, is the very model we should be following.
Most parents raise their children at great sacrifice, work for their best interests, often against numerous state-funded anti-family policies and incentives that promote conflict. Those who profit from adversarial divorce are never involved with children or parents unless there is money or careers to be made.
In an ideal world, parents could work out their post-divorce arrangements themselves. Parents and courts could make decisions “in the shadow of the law.” If the law and its practice are such that, by frustrating the most reasonable intents and offers of the other side, a parent can win and exclude the other parent, then non-adversarial processes will fail unless the parent who can frustrate the process is a saint. The current custody-access system is full of such perverse incentives, which encourage conflict and make problems irresolvable.
An equal parenting law keeps the parents on an even keel. In over 90% of cases, that equality leads parents to work out their own arrangements without the need to hire lawyers, go to court, and dissipate the family assets on legal fees. Agreements worked out by the parents are more likely to be adhered to than judicial agreements.
In summary, the choice is between two alternatives, one supported by the vast majority of the public and parents, and the other, an adversarial system increasingly discredited and disowned even by lawyers and judges.
Glenn Cheriton is an Ottawa-based small business entrepreneur and President of CEPC This article is from the Canadian Observer magazine.