CHILD CUSTODY, ACCESS AND PARENTAL RESPONSIBILITY: THE SEARCH FOR A JUST AND EQUITABLE STANDARD

Edward Kruk, M.S.W., Ph.D. The University of British Columbia December, 2008

This paper was commissioned by the Father Involvement Research Alliance (FIRA) based at the University of Guelph. Funding support for FIRA and this paper was provided through a Community University Research Alliance grant from the Social Sciences and Humanities Research Council of Canada. The intent of this paper is to promote informed dialogue and debate. The views expressed are those of the author and do not necessarily reflect the views of FIRA or of other researchers/collaborators associated with FIRA. Communications can be addressed to the author.

Entitled "Child Custody, Access, and Parental Responsibility: The Search for a Just and Equitable Standard,", it has been published December, 2008 by Fatherhood Involvement Research Alliance (FIRA). Edward Kruk, professor of social work at the University of British Columbia, proposes a four-pillar approach to child custody determination in Canada (or elsewhere for that matter):

• a rebuttable legal presumption of joint physical custody after divorce
• parenting plans, mediation and intervention/ support in high conflict cases
• shared parenting education and judicial determination in cases of established abuse, along with enforcement of shared parental responsibility orders

The paper provides an empirical foundation for, and a step-by-step process, for implementation of an equal parenting bill.

The paper examines the issues, surveys approaches in UK, USA, Sweden and Australia, examines Canadian Child custody legislation at a provincial level, reviews Canadian efforts to make changes, and critiques the traditional sole custody approach as a basis leading up to the universal four-pillar approach for Equal Parenting.

The link to the PDF version of the Executive Summary is here: http://fira.ca/cms/documents/48/Separated_and_Divorced.pdf

A text (HTML) version is here http://parentalalienationcanada.blogspot.com/2009/04/executive-summary-child-custody-access.html

News South Wales in OZ ~ Government gets figures wrong on violence

MEDIA RELEASE – For immediate release – Friday 20th February 2009

Government gets figures wrong on violence

The NSW Government’s Discussion Paper on the NSW Domestic and Family Violence Strategic Framework has been criticised by a leading men’s health organisation for overinflating statistics on domestic violence prevalence for female victims while at the same time understating the prevalence of male victimisation.

In a letter to the Violence Prevention Coordination Unit, Greg Andresen from Men’s Health Australia writes that “Violence is an important issue impacting upon the health and wellbeing of our communities, and every effort should be made to reduce its incidence and impact. We believe that any approach to reducing violence must be developed through robust debate based upon accurate representation of the best data available to us.” He then details a number of serious and misleading errors within the Discussion Paper. The Government’s errors include:

• Falsely claiming that the majority of assaults experienced by women are perpetrated by intimate male partners (the actual figure is 30 per cent)

• Falsely claiming that women who report violence in intimate relationships are significantly more likely than men to experience repeated acts of violence (actually women and men reporting violence by previous partners in intimate relationships experience repeated acts of violence at similar rates)

• Falsely claiming that males do not have prior experiences of violent relationships (actually 6 per cent of males and 17 per cent of females have prior experiences of violent relationships)

• Falsely claiming that males rarely experience post separation violence (actually 367,300 Australian men have experienced previous partner violence since the age of 15)

• Falsely claiming that, compared with male victims of domestic violence, Canadian women are three times more likely to be injured as a result of violence (actually similar percentages of female and male victims sustain injuries)

• Falsely claiming that, compared with male victims of domestic violence, Canadian women are five times more likely to require medical attention or hospitalisation (actually male victims of spousal violence are almost twice as likely as female victims of spousal violence to suffer major assault)

• Falsely claiming that women are over five times more likely to be killed by an intimate partner than men (women are less than twice as likely to be killed by an intimate partner as men are).

Men’s Health Australia is calling upon the NSW Government to use the correct, readily available facts when addressing domestic violence. “We are surprised and disappointed that the main government department dealing with domestic violence could be so misinformed about the reality of domestic violence, and could mislead the public so profoundly,” said Mr Andresen.

“These misleading statistics could easily impact upon the funding and provision of services to male domestic violence victims across NSW. Don’t all victims of violence deserve assistance whether they are female or male? Domestic violence is a community issue, and community solutions are unlikely to be effective if they are based on the Government’s inaccuracies. Inflated and misleading statistics only serve to create an unwarranted level of fear and alarm within the community.”

Media contact: Greg Andresen | media@menshealthaustralia.net | 0403 813 925

Mom ordered to foot dad's full costs ~ The Lawyers Weekly

The following is a recent case (January 30/09) that should give some comfort to men. It is a long standing practice in the DV Industry who advise women to seek shelter with them as a first step in getting an advantage in the Family Court Process whether it be custody, possession of the family home, restraining orders or whatever. There need not be any DV occurring as they are clearing houses, for want of a better term, for "battering" the male partner with emotional abuse. This misuse of these so called emergency shelters casts a pall over the whole industry.

We all know that there are serious cases of battering going on by both genders and some form of emergency respite is needed - for both genders - as Intimate Partner Violence, not including emotional or financial abuse, is instituted almost equally by both men/women. What is left out of the statistics are the many situations of emotional abuse by a parent, including the one below, that impacts both the child and the target parent. One of the big ones is Parental Alienation. Shuster was clearly abusing her child and her partner with these tactics. She got her "just desserts" and hopefully the appeal court will uphold the decision. It could be tenuous with all these feminist sensitivity trained judges.

I would posit there is a great deal of emotional abuse carried out by females against their male partner. I am speaking statistically here rather than all females just so you know I am not a "woman hater." I love women - but I dislike those who are so weak willed (man or woman by the way) they resort to emotionally abusing children to get their partner. Including PA I would hazard a guess that men are bombarded by subtle and not so subtle emotional and financial abuse far exceeding the reverse. I like to visit some of the gender feminist sites periodically to read the hostile drivel they write about how men are such violent abusers, rapists, incipient pedophiles, et al.

They all cut and paste from each others sites and then they swarm like little vampires after a comment is left disagreeing with their opinions. If you look at their illogical scribbles and then the invective of their comments you get the distinct impression they have either reverted to or not left the 8-13 year old age bracket. It is one of my sociological experiments to flesh out the myth they are warm and fuzzy, nurturing mommies. They are not. They are vindictive, intemperate, impatient, threatened, emotionally weak, in most cases appearing to be self inflicted victims - perpetually so - concerned about losing the entitlements feminist trained law makers, judges and bureaucrats dole out. They are but children in adult bodies wanting the nanny state to be their parent. They grasp at each and every instance they can about male wrong doing and feed it through their blogs as though it vindicates them. It reminds me a little of Doctor Strangelove (the movie) and the arms race "missile gap". I think they believe if they can put more quantity of this through their blogs it will "nuke" men! I wonder often about their mental health. It speaks about desperation.

Operational audits should be a requirement for any of these shelters to receive tax dollars and these audits should be done without warning and several times a year. I have advised the author of the misreference to the specific rules under which the applicant brought his motion. MJM

CRISTIN SCHMITZ , OTTAWA

A mother who says her husband's alleged emotional cruelty justified her taking their daughter to a women's shelter must repay him his $25,000 full indemnity legal costs for getting the child returned home. Ontario Superior Court Justice Denis Power's Jan. 30 costs award holds that Elena Shuster's actions last year amounted to "abduction" as well as to "bad faith conduct" under Rule 24(8) of Ontario's Rules of Civil Procedure, (Ed. Note should be Ontario Family Law Rules 24(8)) which provides cost sanctions for litigation misconduct. Justice Power condemned Shuster's "premeditated," unjustified" and "ill advised unilateral conduct" in secretly taking the six-year-old girl away from the matrimonial home and 'her father, against the child's best interests.

Shuster was ordered to pay $25,000 of the $30,563 claimed by Anatoly Tulchinsky as full indemnity legal costs related to his emergency motion to get temporary custody of the girt until permanent custody is determined. There was "no evidence of physical (or other) abuse" by the father against either the mother or child, Justice Power said. He found that both 'parents were actively involved in bringing up their daughter, who is "happy, healthy and well-adjusted" and not at risk. The judge acknowledged that the couple's deteriorating relations did explain "to some extent, the mother's need to separate from the father."

But he also stressed that "even if the vast majority of the complaints against her husband are true, they did not and do not justify her unilateral conduct." The father's counsel, Ian Vallance of Ottawa's Kimmel Victor Ages, called the decision a warning to those who try to get the upper hand in custody disputes."We've all dealt with situations where a parent, typically the mother, abuses the criminal justice system and runs to a shelter with the children-for a 'leg up' in the custody dispute' said Vallance.

"This case sends a strong message that this type of behaviour will not be tolerated and severe sanctions, namely a realistic award of costs, will be brought to bear 'on the offending party."Shuster has applied for leave to appeal, but at press time had just hired a new lawyer who was not yet able to comment.

Without notice to Tulchinsky, Shuster removed their daughter from the matrimonial home, as well as from the child's school and activities. Justice Power said Tulchinsky hadn't seen his daughter for almost a month - and' didn't know where she had gone until shortly, before the Superior Court heard. his emergency motion last October. Justice Power granted, Tulchinsky's request that the girl be returned to her school and spend alternate weeks with each of her parents, pending the recommendations of a custody and access assessor., The judge found that both parties are actively involved in their 'daughter's care and upbringing, and it is in her best interests "to have the greatest possible contact with each other parents."Justice

Power reasoned that full indemnity costs award was appropriate given that the father had done "nothing unreasonable" in the course of bringing forward his emergency motion, "subject to the caveat that, in my opinion, the time expended by counsel was a little heavy." While the fees and disbursements the father incurred were" substantial" they were "'not entirely unreasonable" and Shuster did not challenge the hourly rates charged.

The judge also dismissed as" totally unreasonable" Shuster's argument on costs that success on the motion had been divided. In his cost submissions to the judge, Vallance said "a huge amount of legal work" was needed to prepare the· emergency motion to get the child back. Vallance an associate, and an articling student met with witnesses, prepared 12 affidavits, spoke to police officers, consulted criminal counsel, spoke to CAS workers, tried to obtain police files, "tried to serve materials on someone hiding," spoke to the child's health care providers, and assembled photographs as exhibits to provide context to the case and researched case law. Vallance argued a one day emergency motion as well as an earlier motion to have the matter heard quickly on an emergency basis.

Reasons: Tulchinksy v. Shuster, [2009] O.J. No.405.