law reform

Law reform: Equal Parenting Reform Bill

Summary: With sponsorship from the Canadian Equal Parenting Council, MP Maurice Vellacott will be introducing a private member’s bill to reform the federal Divorce Act with a number of provisions aiming to move from the existing adversarial, sole custody preferences to a preference for “equal parenting” and non-adversarial processes whenever possible.

Legislative aim of this bill:  To establish equal parenting time, rights and responsibilities as the usual arrangement upon separation of the spouses, to be implemented in the Divorce Act as the rebuttable presumption unless judges can cite specific reasons with clear supporting evidence for sole custody.

Background: The federal government is constitutionally responsible for marriage and divorce, and has presumed to include the custody of children in the Divorce Act. Currently, approximately 90% of separating children end up with what amounts to a sole custody arrangement, although over 2/3 of both fathers and mothers seek joint custody going in to the process (Statistics Canada). Parents lose the right to parent their children in the process because of high legal and courts costs, when one side runs out of money, or because of perceived bias of judicial decision-making leads one side to abandon a legal conflict so that the children will not be drawn into the battle. Only in a small minority of cases are “custody” cases decided by a full trial and judicial decision, because few parents can afford it, and fewer subject their children to it, but many cases are decided “in the shadow of the law” which appears to strongly prefer sole custody (usually to the mother).
The last significant reforms to the Divorce Act were in 1986, with reforms proposed by Liberal Justice Minister Mark McGuigan, and subsequently passed into law by Conservative Justice Minister John Crosby. Reforms included the addition of the “friendly parent rule” allowing Court preference for custody to the parent which encourages access by the other parent. Courts seemed to largely have ignored these and other encouragements, with little or no change in actual parenting time outcomes. Often what is labelled “joint custody” in court statistics is de facto sole custody with the “physical custody parent” solely deciding education, medical, access schedules and receiving guideline child support (often plus spousal support) regardless of the time invested by the “non-custodial” parent.
Opinion polls show widespread dissatisfaction with the cost, outcomes and unfairness of the family court system. In private, many lawyers, judges and politicians express great dissatisfaction with the existing sole-custody, adversarial system.
Advocates cite the gender equality provisions of the Charter (sections 15 and 28), the UN Convention on the Rights of the Child, and the social costs of raising children of divorce without parental (largely fathers) involvement, as reasons for the need for effective equal parenting reforms.
Opponents of such reforms cite fears of domestic violence, women’s rights to live without any control by men, judicial freedom to decide the meaning of “best interests of the child” and legal reasoning that parents have no rights, only responsibilities.
Parliament studied this issue extensively in a Joint Senate-Commons Committee on Child Custody and Access in 1998, issuing a report “For the Sake of the Child” with 48 recommendations on shared parenting and parallel reforms. None of these recommendations have been implemented.

Objectives of the initiatives in the bill:

•   Parents should be free to make agreements for their care of their children, with both parents retaining authority and responsibility. Courts’ sole custody preferences introduce perverse incentives which favour conflict, false or exaggerated accusations in legal processes, so this bill restrains judicial discretion to order sole custody over the objections of a parent, unless a judge has both reasons and evidence (not just accusations) to support a change in parental responsibility.

•   This bill aims for the same presumption that married parents face: both parents are equal in rights and responsibilities regarding any child, unless evidence, due process and specific laws rebut this presumption. The “best interests of the child” test should be evidence-based. Social objectives and government policy are best served by clear, fair, due process before any removal of a parent from the life of a child.

Reasons for this Change (suggestions for advocates in presentations to media, public & caucus):

1. Reduced costs for parents: Parents using non-adversarial supports to make their own agreements reduce their legal costs, which means more parental time and monetary investment in children, and lower rates of child poverty.
2. Healthier children: Kids from joint custody families show better mental, physical, emotional and educational outcomes compared to sole (maternal) custody families.
3. Reduced abuse and neglect: Joint custody families show lower rates of abuse compared to sole custody families. Over time, joint custody shows decreasing conflict, while sole custody families show increasing levels of conflicts, mental illnesses, and poorer abilities in relationships and conflict resolution.
4. Charter & UN Covenant values: Parents and children often feel that the current family law system is disempowering, arbitrary, and biased. Equal parenting reforms aim to bring the values of equality, due process, fair treatment to family law, while ensuring that children keep their right to both parents wherever possible.

Initiatives in Other Jurisdictions: Australia has implemented several cycles of reforms, increasingly moving to less court and legal involvement, more equality of parents, and reduction of conflict and costs for parents. For example, to pay child support, Australian parents file a copy of the parenting time/separation agreement with the federal tax authorities, and child support is automatically calculated (with a website calculator), with no court costs. The system saves billions in costs to parents. Belgium, Denmark, Norway and selected US states have implemented joint custody preferences (or their equivalents) with positive outcomes for children and parents. The British government is promising to move to reform their family law to more of a model keeping both parents.

For Additional background:
(US) www.crckids.org
www.voteEqualParenting.com