Back on May 25th, I wrote this piece on new family law legislation currently before the Canadian Parliament. I pointed out that the bill would do little worth doing. (Changing terminology is hardly earth-shaking.) And of course it entirely ignores the concept of shared parenting. I further said that, since it’s embraced by Canada’s family law bar, the bill is automatically suspect. No family law section in the United States has ever supported a shared parenting bill, mostly because shared parenting threatens lawyers’ fees. Family lawyers thrive on conflict and an equal parenting presumption would tend to make child custody issues easier to understand and less threatening to both parents, thereby reducing conflict.
In short, I excoriated both the bill and the lawyers. Now I learn I was too kind (Advocate Daily).
It seems that bill C-78 would in fact do something significant. It would make Canadian family law even worse than it already is.
The Bill C-78 amendments appear to demote one of the most positive aspects of the current Divorce Act, namely the pre-eminence of the “friendly parent” provision, [attorney Gene C. Colman] says.
"The bill breaks it up and equates that factor with a plethora of others, notes Colman. “That’s why this new Bill is a retrograde step for children and a potential boon for more litigation, not less. That might be good for lawyers, but it is certainly not good for Canadians.”
In short, supporting the child’s interest in maintaining a meaningful relationship with the opposing parent may be a nice idea, but, under bill C-78, it wouldn’t be necessary. Refusal to do so could be counterbalanced by other factors. Calling that “retrograde” is stating the matter entirely too cautiously.
And of course, since there’s nothing in the bill requiring a presumption that both parents are necessary to children’s well-being, it flies in the face of the established science on children’s best interests. You remember children’s best interests; those are the things judges are supposed to promote in every child custody case they decide. But C-78 ignores the one thing we know does exactly that in most cases.
Needless to say, a law that presumes equal parenting to be in children’s best interests never sets equal parenting in stone. Presumptions in the law can always be rebutted and sometimes there’s adequate evidence to do just that. Opponents’ claim that equal parenting is a “one-size-fits-all” standard is just making things up.
“Of course there are instances where equal shared parenting isn’t beneficial and that’s why it can be rebutted on defined grounds,” he says.
But even the suggestion that parents might be presumed to be equal by the law is too much for the lawyers who oppose any change that might threaten their earnings.
“I apologize to my colleagues practising family law, but we need to step back here and look beyond the billables and find ways to take conflict out of the process and avoid going to court on these issues,” Colman tells AdvocateDaily.com.
And let’s not forget two other things. The first happened 20 years ago.
He says the roots of the political discussion that ultimately led to many advocating a rebuttable equal shared parenting presumption stretches back to the special joint committee report of the Senate and the Commons — For the Sake of the Children.
"That report, published in December 1998, did not go as far as recommending a rebuttable presumption for equal shared parenting, but its recommended progressive reforms certainly provided an impetus for those who believed that this was the correct way to proceed," Colman says.
For the Sake of the Children made it clear that Canadian family courts were ill-serving children by separating them from one of their parents post-divorce. It called for substantial change in the way parenting time is allocated. That was in 1998 and, if anything significant has changed since then, it’s nowhere apparent.
The second is that Canadians overwhelmingly support equal parenting. Survey after survey demonstrates the fact, but Parliament remains uninterested in the desires or opinions of its members’ constituents. As the ever-excellent Paulette MacDonald, board member of the Canadian Equal Parenting Council, said in this letter to the Toronto Star “Bill C-78 fails to give sufficient credence to the views of the majority of Canadians who support equal shared parenting under child custody law.” (Toronto Star, 6/27/18)
Ms. MacDonald, you, like me before you, are too kind. “Sufficient credence” would be including a presumption of shared parenting in C-78 and nothing less, but the bill ignores shared parenting altogether.
Bill C-78 is unacceptable. Canada’s kids and their parents deserve far better. The bill should be defeated and real reform of family law, including the presumption of equal parenting, should finally, after all these years, go forward.